COMMONWEALTH v. ROBERTO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of assault by means of a dangerous weapon. The conviction stemmed from an incident in which the defendant approached the victim holding what appeared to be a firearm, but what was actually a BB gun. On appeal the defendant contends that the evidence does not support his conviction because the Commonwealth was required, but failed, to prove that he possessed an actual firearm. He bases his argument on the following language in the complaint: the defendant “did, by means of a dangerous weapon, a [f]irearm, assault [the victim], in violation of G. L. c. 265, § 15B(b).”

The issue is controlled by the wealth of precedent holding that “a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense.” Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). See Commonwealth v. Hobbs, 385 Mass. 863, 869-870 (1982). The complaint here correctly stated the essential elements of “assault” by means of a “dangerous weapon.” The reference to a “firearm” was surplusage; it did not set out an element of the crime that the Commonwealth was required to prove. See Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) (“The language in the indictment specifying the particular [dangerous] weapon used [was] superfluous”). The jury instruction also correctly stated that the Commonwealth was required to prove that the defendant committed the assault “with a dangerous weapon,” without specifying that the weapon had to be a firearm.

Commonwealth v. Garrett, 473 Mass. 257 (2015), is not to the contrary. That case involved a conviction under the armed robbery statute, G. L. c. 265, § 17, which authorizes a sentencing enhancement if a defendant commits robbery “while armed with a firearm.” In that context the court held that, where the indictment alleged that the defendant committed the robbery while armed “with a handgun,” rather than with a dangerous weapon, evidence that he used a BB gun was insufficient to prove the crime as charged. Garrett, 473 Mass. at 263-264. See id. 267-268 (Gants, C.J., concurring). Garrett did not disturb the settled principle that a variance between the allegations and the evidence is not grounds for acquittal so long as the complaint or indictment correctly states the elements of the offense and the defendant is not prejudiced. Indeed, subsequently in Commonwealth v. Prado, 94 Mass. App. Ct. 253, 262 (2018), this court considered an armed robbery indictment alleging that the defendant committed the robbery while “armed with a dangerous weapon, to wit: firearm,” and concluded that the language, “to wit: firearm,” “constituted a nonfatal variance under our precedent.” Id. at 263. As we explained, even though the defendant possessed a BB gun rather than a firearm, “[b]y drawing the indictment to allege the crime of armed robbery ‘with a dangerous weapon,’ rather than ‘with a handgun,’ the Commonwealth here avoided the concerns delineated in Garrett.” Id.

The defendant appears to argue that he was prejudiced by the variance here because an officer's testimony and the prosecutor's closing argument conflated the terms firearm, dangerous weapon, and BB gun. But the jury knew that the defendant was found in possession of a BB gun because the officer so testified. The BB gun was admitted in evidence. The judge instructed the jury that the Commonwealth had to prove that the defendant intended to assault the victim “with a dangerous weapon; to wit here the Commonwealth is alleging a BB gun.” There is no risk that the jury would have understood the Commonwealth's case differently, and the defendant does not argue that the language of the complaint misled him or prevented him from preparing a defense.

Judgment affirmed.