COMMONWEALTH v. JETTE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a bench trial in the District Court, the defendant, Shannon Jette, was convicted of assault by means of dangerous weapon and disorderly conduct. He appeals, claiming the evidence was insufficient. We affirm.

Discussion. As the defendant is challenging the legal sufficiency of the evidence, we apply the well-settled and familiar Latimore standard: “whether, after viewing the evidence in the light most favorable to the [Commonwealth], 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 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

In the light most favorable to the Commonwealth, the evidence was that on December 28, 2016, at approximately 8:30 p.m., Chelsea Police Officer Rafael Serrano was on routine patrol when he observed a Toyota Corolla operating on Green Street, a narrow one-way street. Serrano learned that the registration was revoked and the Toyota was uninsured. He pulled the Toyota over without incident. The driver was identified as Michelle Santos. The defendant was seated in the front passenger seat. As Serrano approached, the defendant shouted expletives and racial epithets at him; as Serrano reached the front passenger window, he saw the defendant rolling a marijuana cigarette.

As the driver produced her license and registration, the defendant continued to yell and swear at Serrano. The defendant continued his rant and then immediately swung the car door open in Serrano's direction and yelled, “You're going to know who I am,” and “Get the fuck out of my way.” When the defendant swung the door, Serrano was five to ten inches from it and had to brace himself; he put his hands out to catch the door before it could hit him in the chest. Serrano applied pressure to the car door to keep the defendant inside the car, as he was concerned by the defendant's increasingly aggressive and assaultive behavior. Serrano then called for backup and continued to hold the door as the defendant pushed against it.

As Serrano tried to close the car door, the defendant threw his cell phone to Santos and instructed her to record what was happening. Serrano was able to close the door as backup arrived. The defendant then jumped over the center console into the back seat of the car and got out through the back left-side door. As he did so, the defendant was nearly hit by a passing car.

Sergeant Michael Addonizio, who arrived as backup, approached the defendant, who had crossed the street and was standing on the sidewalk. The defendant blew smoke in Addonizio's face from the marijuana cigarette he was smoking and swore at him. The defendant then took a fighter's stance with his fists balled up and stood three to five inches from Addonizio and continued to shout expletives and racial slurs. Addonizio placed him under arrest.

Throughout this encounter, the defendant's shouting caused crowds to gather; people stopped to see what was going on, and residents came to the front of their homes. Serrano estimated that the attention of approximately ten people was drawn in the direction of the scene.

Assault by means of a dangerous weapon. The defendant claims that there was insufficient evidence to prove beyond a reasonable doubt that he assaulted Serrano with a dangerous weapon. The Commonwealth proceeded on both the threatened battery and attempted battery theories of assault by means of a dangerous weapon.

“A conviction of assault under a theory of threatened battery 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). The Commonwealth was also required to prove that this was accomplished using a dangerous weapon. A rational fact finder could conclude that the evidence of the defendant's racially-charged rant at Serrano, immediately followed by his swinging the car door open towards him at close range, was sufficient to meet these elements. In addition, the fact finder could have found that Serrano testified to the threat and hence perceived it. Cf. Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (evidence sufficed where defendant intentionally swung car door open and struck officer with it).

“A conviction of assault under a theory of attempted battery requires the prosecution to prove that the defendant ‘intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.’ ” Commonwealth v. Porro, 458 Mass. at 530, quoting Commonwealth v. Melton, 436 Mass. 291, 295 (2002). Again, the Commonwealth was required to prove that the attempted battery was accomplished with a dangerous weapon. Here, a rational fact finder could reasonably conclude from the evidence of the defendant's minatory conduct and his act of swinging the door at Serrano that the defendant took active steps toward hitting Serrano, and that but for Serrano's defensive actions, the defendant would have succeeded. See, e.g., Commonwealth v. Arias, 78 Mass. App. Ct. 429, 434-435 (2010) (evidence sufficed where defendant lurched his truck at victim, who was standing few feet away).

Proof of intent is often accomplished by circumstantial evidence. See Commonwealth v. Stoddard, 38 Mass. App. Ct. 45, 49 (1995). That the defendant shouted, “You're going to know who I am,” and “Get the fuck out of the way,” before swinging the car door at Serrano and continuing to push on it while Serrano applied pressure suffices to prove the defendant acted intentionally. Finally, the evidence was sufficient to prove that the car door was a dangerous weapon. While it was not dangerous per se, on these facts, the car door was dangerous as used. See Commonwealth v. Powell, 433 Mass. 399, 401 (2001).

Disorderly conduct. As a preliminary matter, the Commonwealth argues that, since the conviction of disorderly conduct was placed on file by the judge, the defendant's right to appeal the conviction is suspended for as long as it remains on file. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Where there is no showing of a defendant's affirmative assent to the filing of a conviction, however, we may consider the filed conviction. See Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.1 (1992); Commonwealth v. Nowells, 390 Mass. 621, 629-630 (1982). Here, a careful review of the transcript reveals that no inquiry was made of the defendant.² Accordingly, we address the merits of his claim.

“A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or ․ (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor” (citation omitted). Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000), cert. denied, 532 U.S. 980 (2001). Tumultuous behavior, for purposes of the offense of disorderly conduct, can include the refusal to obey a police order. See Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009). Here, the defendant shouted racial epithets and obscenities at the police; he ran into traffic, nearly getting hit; he adopted a fighter's stance and refused to calm down when the police instructed him to do so; residents looked out their windows; and a crowd gathered as a result of the defendant's conduct. This evidence was sufficient to prove that the defendant engaged in tumultuous or threatening conduct beyond mere vulgar speech. A rational fact finder, moreover, could have found that the defendant's actions were reasonably likely to affect the public. The defendant's argument ignores the evidence most favorable to the Commonwealth. And, contrary to the defendant's assertion, a victim is not required for a conviction. See Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003) (victim is not element of disorderly conduct). Contrast Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 405 (2009) (disturbing the peace requires detrimental impact on victim). Finally, the evidence was sufficient to prove that the defendant recklessly disregarded the substantial risk of a public nuisance. As a result of the defendant's conduct, police backup was deemed necessary and called in, blocking traffic on the public street.

Judgments affirmed.

FOOTNOTES

2.   In announcing her finding and the sentence, the judge said, “Count II will be guilty file one day on the disorderly. I mean it's just filed for one day, but guilty file. It'll expire tomorrow at this time.” No inquiry was made of the defendant.