Opinion
No. 15–P–333.
07-27-2016
COMMONWEALTH v. Christian VALENZUELA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Juvenile Court, the juvenile was convicted as a youthful offender of armed home invasion, carrying a firearm without a license, assault by means of a dangerous weapon (firearm), and assault by means of a dangerous weapon (brass knuckles). On appeal, he contends that (1) the evidence was insufficient to prove armed home invasion; (2) the evidence was insufficient to prove the count of assault by means of a dangerous weapon involving the brass knuckles; (3) the judge incorrectly instructed the jury as to the application of consent to the entry element of armed home invasion; and (4) the prosecutor improperly appealed to the sympathy of the jury in his closing argument. We affirm.
The juvenile was also adjudicated delinquent by reason of malicious destruction of property with a value equal to or less than $250, carrying a dangerous weapon (brass knuckles), possession of ammunition, and threatening to commit a crime.
Background. We summarize the facts as the jury could have found them, reserving certain details for our analysis of the issues raised on appeal. Commonwealth v. Companonio, 445 Mass. 39, 42 (2005).
On the morning of December 14, 2013, the sixteen year old girl friend of the juvenile broke up with him, her boy friend of three months, following an argument over the telephone. After yelling at the girl friend and calling her a “slut” and a “whore,” the juvenile arrived on the back porch of her third-floor apartment and told her to open the door. After she refused, the juvenile yelled at her “to open the door,” and began punching the glass part of the back door with brass knuckles. The juvenile also kicked the back door, which led to the kitchen. He hit the door with enough force to crack the lock and to knock a sugar container off of the kitchen counter. The juvenile also threatened to throw himself off of the porch.
The girl friend, crying and sounding afraid, telephoned her mother and told her that the juvenile was trying to force his way into the apartment. The mother instructed her daughter not to open the door. Meanwhile, the juvenile continued yelling and demanding to be let in.
At this time, the mother was at the bank with her middle daughter (age fourteen). The girl friend was inside the apartment with the youngest sister (age seven).
The mother returned home within fifteen minutes of the telephone call. The mother instructed her middle daughter to enter the apartment through the front door and to let the juvenile in through the back door. The mother ascended the back stairs to the third-floor porch, arriving just as the middle daughter was letting the juvenile in, and followed the juvenile inside. At this point, the juvenile had calmed down and was not wearing the brass knuckles. Neither the mother, nor the older two daughters were aware that the juvenile had a gun.
Once inside, the juvenile stated that he wanted to talk; he told the mother that he loved the girl friend and that it was the mother's fault that the girl friend broke up with him. The mother responded that she did not care, and “just didn't want anything bad for [her] daughter.” The juvenile then lifted his shirt, revealing the handle of a gun in his waistband, and said, “Look what I have.” The mother ordered her three daughters to leave the kitchen and to go to her bedroom, and told the juvenile that she would not continue talking with him until he disposed of the gun. The juvenile placed the gun on the porch outside the apartment. Thereafter, while standing “[j]ust a few feet” away from the mother, the juvenile swung the brass knuckles into a “spare door” inside the kitchen. The mother told him that he would have to put the brass knuckles outside in order to continue talking with her. When the juvenile brought them out to the back porch, the mother tried to close the door and keep him out of the home. However, the juvenile was able to reenter the apartment because he had broken the lock. Upon reentry, the juvenile stated, “See, you're not gonna do anything to me.” The mother responded that she was going to telephone the police, and the juvenile left. Forty-five minutes later, two Chelsea police officers located the juvenile, arrested him, and found on his person a firearm and a set of brass knuckles.
At trial, the juvenile did not present any evidence. In closing argument, the defense conceded that the juvenile was guilty of possessing a firearm, possessing brass knuckles, assaulting the mother with the firearm and the brass knuckles, and maliciously destroying property, but contended that he was not guilty of armed home invasion because the family allowed him into the home. The jury disagreed. This appeal followed.
Discussion. 1. Consent to enter and armed home invasion. The juvenile first argues that the judge erred by denying the juvenile's motion for a required finding of not guilty on the armed home invasion charge because no rational jury could have determined that he entered the apartment without consent. Specifically, he argues that the mother's instruction to her middle daughter to allow the juvenile into the home constituted legal consent, and thus his entry was lawful. We disagree.
We review to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). Home invasion undoubtedly requires an unlawful entry, see Commonwealth v. Putnam, 75 Mass.App.Ct. 472, 477 (2009), yet a “consensual entry ... does not always correlate with a lawful entry,” Commonwealth v. Mahar, 430 Mass. 643, 652 (2000). “For practical purposes, permissive entry into a dwelling, and entry while armed in order to commit an armed assault, are mutually exclusive concepts because G.L. c. 265, § 18C, implies, as a matter of public policy, that an occupant of a dwelling cannot consent to allow an armed intruder ... inside to commit an assault.” Mahar, supra at 653.
In the instant case, the trial record contained ample evidence from which the jury could determine that the juvenile, an armed intruder, entered the home to commit an assault, and that the victims did not consent to his entry for such purposes. Specifically, the record supports the inference that the juvenile arrived at the apartment with the intent to put the girl friend in fear of bodily harm. The juvenile yelled at her and called her a “slut” and a “whore” over the telephone; he arrived at the apartment within fifteen minutes of their conversation, armed with a gun and brass knuckles; he punched and kicked the back door with such force so as to crack its lock; and, upon being let in, threatened the mother with the gun when she sought to protect her oldest daughter. No occupant knew, at the time of the juvenile's entry, that he possessed a firearm or that he would use it to commit an assault. See id. at 652–653 ; Putnam, supra at 479. Accordingly, the evidence sufficed to prove the unlawful entry element of the armed home invasion charge.
Additionally, neither the middle daughter (who opened the door) nor the mother (who told her to do so) knew that the juvenile was armed with the brass knuckles. While the juvenile makes much of the fact that the girl friend knew that he possessed brass knuckles at the time he sought entry into the apartment, we are aware of no case law, and the juvenile cites to none, that imputes the knowledge of one occupant to another occupant for the purposes of determining whether the juvenile's entry was lawful. Regardless, a rational jury could have found that the victims did not consent to the juvenile's entry and that they did not know that he was “about to commit an assault once inside.” Putnam, supra at 477, quoting from Mahar, supra. Moreover, the judge instructed that to prove the crime of armed home invasion, the Commonwealth must prove beyond a reasonable doubt that the defendant was armed with a dangerous weapon, “[h]ere, a firearm.” Thus, the argument regarding the girl friend's knowledge of the brass knuckles is misplaced.
2. Assault by means of a dangerous weapon. The juvenile next argues that the judge erred by denying his motion for a required finding of not guilty on the charge of assaulting the mother by means of a dangerous weapon (the brass knuckles). We disagree.
A conviction of assault under a theory of threatened battery, as the Commonwealth pursued here, “requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat.” Commonwealth v. Porro, 458 Mass. 526, 530–531 (2010). We evaluate each element by looking to the facts and circumstances of the incident at issue. See Commonwealth v. Walters, 472 Mass. 680, 692 (2015) (“reasonableness of the victim's fear depends in part on ‘the actions and words of the defendant in light of the attendant circumstances' “ [citation omitted] ). See also Commonwealth v. Mercado, 456 Mass. 198, 207 (2010) (fact finder often resorts “to proof by inference from all the facts and circumstances developed at the trial” to determine intent [citation omitted] ).
Here, the evidence showed that the juvenile threatened the mother with battery. While conversing alone in the kitchen with the mother and standing “[j]ust a few feet” from her, the juvenile violently punched a door while wearing brass knuckles. Before that punch, the juvenile was furious about the break-up, blamed the mother for the break-up, and had just assaulted her with a gun. Furthermore, immediately after the punch, the mother evidenced her apprehension by demanding that the juvenile put the brass knuckles on the porch and attempting to lock him out of the apartment when he obliged. From this evidence, a rational fact finder could reasonably conclude that the juvenile threatened the mother with battery. See Commonwealth v. Arias, 78 Mass.App.Ct. 429, 435 (2010) (evidence that defendant “lurched” his truck at detective who was standing mere feet away and was put in fear of his life sufficed for assault by means of dangerous weapon). See also Commonwealth v. Melton, 436 Mass. 291, 295 n. 4 (2002).
Indeed, the defense conceded in closing argument that the juvenile should be held accountable for assaulting the mother with the firearm and the brass knuckles.
3. Instructing the jury on armed home invasion. The juvenile next contends that the judge incorrectly instructed the jury as to the relationship between consent and the unlawful entry element of armed home invasion. We disagree.
The juvenile challenges the portion of the instruction that states: “[w]hile consent to enter may be considered as evidence that the entry was lawful, consent is not a defense unless the occupant has been made aware that the defendant is armed with a dangerous weapon and is about to commit an assault once inside. Therefore, an occupant of a dwelling can not consent to allow an armed intruder inside to commit an assault”.
In reviewing a challenge to a jury instruction, we must “evaluate the charge as a whole, looking for what meaning a reasonable juror could put to the words of the trial judge.” Commonwealth v. Waite, 422 Mass. 792, 804 (1996). Here, the juvenile objected to the instruction, and we thus review for prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Viewing the instruction in its entirety, the judge essentially tracked the language in Mahar, 430 Mass. at 652–653. While the juvenile argues that the second sentence of the instruction directly contradicted the first, that sentence was an accurate articulation of the principle articulated in Mahar “that an occupant of a dwelling cannot consent to allow an armed intruder ... inside to commit an assault.” Id. at 653, citing Commonwealth v. Appleby, 380 Mass. 296, 310 (1980). Thus, there was no error in the instruction.
Nor was there any error in the judge's supplemental instruction in response to the jury inquiry on the element of entry. The judge, while replacing the word “assault” with “force,” again correctly stated the law. Furthermore, we agree with the Commonwealth that any slight modification to the exact language was in the juvenile's favor, as the instruction did not include the rule that even knowing consent to enter would not make entry lawful in the circumstances.
4. Prosecutor's closing argument. Finally, the juvenile argues that the prosecutor improperly appealed to the jury's sympathies by stating in closing argument that the jury had the “final say.” We disagree. The objected-to statement amounted to a reference to the juvenile's actions immediately prior to and during the armed home invasion, including his repeated refusal to leave the victims' home. The statement was brief and did not constitute an improper appeal to sympathy. Cf. Commonwealth v. Baran, 74 Mass.App.Ct. 256, 283 (2009) (error for prosecutor to argue that “ends of justice literally cry out for a guilty verdict”). At most, the argument falls into the category of “enthusiastic rhetoric.” Commonwealth v. Young, 461 Mass. 198, 205 (2012) (citation omitted). The judge told the jury that closing arguments were not evidence and instructed the jury to decide the case exclusively on the evidence. Viewing the closing argument in its entirety and in light of the judge's instructions, we discern no prejudicial error. Commonwealth v. Gerhartsreiter, 82 Mass.App.Ct. 500, 514 (2012).
The juvenile's cursory reference in his brief to alleged burden-shifting in the prosecutor's closing argument is similarly unpersuasive. The sequence of the prosecutor's argument made clear that the phrase “final say” referred to the juvenile's behavior during the armed home invasion, and cannot reasonably be construed to reference the juvenile's failure to testify.
Judgments affirmed.
Adjudications of delinquency affirmed.