COMMONWEALTH v. ORTIZ CORREA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the Superior Court, the defendant was convicted of malicious damage to a motor vehicle and assault by means of a dangerous weapon (ADW).³ He appeals, arguing that the evidence was insufficient. We affirm.

1. Facts. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the judge could have found the following facts. On December 30, 2016, there was an altercation at the Holyoke Mall between the defendant and a group of people, including Rosa Robles and Joel Valentin.⁴ As Robles and the defendant's girlfriend exchanged words, the defendant took offense to Valentin's smile and asked, “[W]hat are you laughing about? Are you making fun of us?” Robles and her group began to leave the mall. The defendant followed the group and slapped his hands on the floor. Once outside, the defendant and Valentin exchanged more words. The defendant approached Valentin, displaying a pocket knife. Robles held the defendant back, as she tried to calm him down. Eventually, the defendant returned to the store.

Robles and her group walked to her car in the parking lot. Everyone except Robles was in the car when the defendant appeared. He walked to the passenger side rear door where Valentin was seated and began shouting. The defendant tried to open the passenger door; he punched the window a few times and hit it “angr[ily]” twice with the knife. Robles got into the car and drove away. After the confrontation, there were marks on the window that had not been there previously.

After dropping off Valentin, Robles drove to the police station. She reported the incident but chose not to file a report out of concern that the defendant would learn her address. Robles then drove to a liquor store and remained in her car with her children while another member of the group went inside. The defendant got out of a large truck that had parked next to Robles's car. He approached the car, and in a raised tone, asked about Valentin's whereabouts; he said that he was “going to bring [Valentin] down.” The defendant then held up his shirt and displayed a gun in his waistband to Robles. He grabbed the handle of the gun with his hand but never removed it from his waistband. Robles testified that she was scared that the defendant would shoot her. After the defendant left, Robles returned to the police station and made a full report.

2. Discussion. The defendant claims the evidence was insufficient to support both convictions. “In reviewing a claim of insufficiency of the evidence, we 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” (quotation and citation omitted). Commonwealth v. Veiovis, 477 Mass. 472, 479 (2017). See generally Latimore, 378 Mass. at 676-678. “Our inquiry centers upon ‘whether the evidence would permit a [fact finder] to find guilt, not whether the evidence requires such a finding.’ ” Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 798 (2011), quoting Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

a. Malicious damage to a motor vehicle. In order to sustain a conviction for malicious damage to a motor vehicle, the Commonwealth is required to prove, beyond a reasonable doubt, that the defendant injured or destroyed a motor vehicle, that belonged to another person, and acted with malice. G. L. c. 266, § 28 (a). Only the third element is at issue here as the defendant contends that the act of trying to break the window was a means to gain access to Valentin, as opposed to Robles who owned the car, and thus the evidence of malice was insufficient. The Commonwealth responds that it is not required to prove that the defendant harbored a specific malice against the car's owner, but rather that he damaged the car window with cruelty, hostility, or revenge toward another.

Malice is “a state of mind of cruelty, hostility or revenge.” Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 143 (2016), quoting Commonwealth v. McGovern, 397 Mass. 863, 868 (1986). In cases involving malicious damage to property, “[i]t is immaterial whether the defendant knew the identity of the owner of the property” (citation omitted). Chambers, supra. “The [defendant's] animus need not have so personalized an object.” Commonwealth v. Cimino, 34 Mass. App. Ct. 925, 927 (1993).

Here, the defendant argues because his hostility was directed at Valentin, the damage he caused to the car was the “by-product” of a separate criminal enterprise; in other words his act of stabbing the window was a means to effectuate harm upon Valentin. E.g., Commonwealth v. Morris M., 70 Mass. 688, 691-693 (2007) (insufficient evidence of malice where damage occurred as result of hostile acts directed toward attacker while attempting to escape); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 4-5 (2001) (insufficient evidence of malice where damage to broken window and doors incidental to attempted theft). The defendant suggests that at most, his conduct was wanton, not malicious.

It is true that the “incidental ‘destruction of property which accompanies even violent crime may not by that token alone qualify as ․ malicious.’ ” Commonwealth v. Wynn, 42 Mass. App. Ct. 452, 455 (1997), quoting Cimino, 34 Mass. App. Ct. at 927. “In particular, we are aware that the line between ‘wanton’ ․ and ‘malicious’ ․ ‘cannot be located exactly; an approximation must do.’ ” Wynn, supra at 453, quoting Cimino, supra. See generally Commonwealth v. Gordon, 82 Mass. App. Ct. 227 (2012) (distinguishing wanton from malice). However, “[t]o the extent that conflicting inferences are possible from the evidence, it is for the [fact finder] to determine where the truth lies” (quotation and citation omitted). Wynn, supra.

Here, in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 676-677, a reasonable fact finder could determine that the damage to Robles's car was not ancillary to the defendant's attempt to harm Valentin, but rather damage directed at the car arising from hostility caused by the prior encounters that night. See id. As such, the defendant's “by-product” argument fails.

The defendant also argues that the evidence was insufficient because his malice must have been directed at Robles. We are not persuaded. The defendant need not have known, nor directed his animus toward the specific property owner; he was simply required to act maliciously toward the property that was damaged. E.g., Commonwealth v. Hosman, 257 Mass. 379, 384 (1926) (“It was not essential that [the defendant] should know who owned the Dodge automobiles, or that he should have been actuated by a spirit of personal hostility to the owners of these automobiles. It was enough that he intended willfully and maliciously to destroy the property of another, whoever he might be”); Chambers, 90 Mass. App. Ct. at 144 (jury instruction on malice was “inaccurate [though in a way that was beneficial to the defendant] insofar as it required the Commonwealth to establish the defendant's malice was directed specifically toward the owner of the property she damaged or destroyed”); Redmond, 53 Mass. App. Ct. at 4 (“However, malice does not require that the defendant know the identity of the owner of the property damaged”).

b. Assault by means of a dangerous weapon. The Commonwealth proceeded on a theory of threatened battery based on the defendant's display of a gun to Robles at the liquor store. This theory of ADW “requires the prosecution to prove[, beyond a reasonable doubt,] 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 defendant claims that the Commonwealth failed to show he intended to put Robles in fear of an imminent battery because “he was not threatening her; rather, he was threatening to ‘bring down’ [Valentin].” The defendant correctly notes that “[u]nder the immediately threatened battery category, what is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear or some other unspecified psychological harm in the victim.” Commonwealth v. Gorassi, 432 Mass. 244, 248-249 (2000). In the absence of direct evidence of intent, the fact finder may permissibly infer intent from the facts and circumstances presented. See Commonwealth v. Moran, 453 Mass. 880, 885 (2009), citing Commonwealth v. Gollman, 436 Mass. 111, 116 (2002).

Here, the fact finder could determine that the defendant assaulted Robles and placed her in fear when he displayed a gun in an attempt to learn Valentin's location. Indeed, Robles testified that she feared that the defendant would shoot her. In the light most favorable to the Commonwealth, the evidence sufficed to prove “that the defendant engaged in ‘objectively menacing’ conduct with the intent to put [Robles] in fear of immediate bodily harm.” Gorassi, 432 Mass. at 248, citing Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995). This is particularly true where the parties had a prior conflict that escalated from a verbal exchange to a physical one shortly before the incident at the liquor store.

Judgments affirmed.

FOOTNOTES

3.   The defendant was found not guilty of one count of ADW on Joel Valentin. Each indictment alleged that the defendant was a habitual offender. After the defendant was found guilty of the two crimes, the Commonwealth filed a nolle prosequi on so much of the indictments that charged the defendant as a habitual offender.

4.   Although the trial transcript spells his name as Joel Valentine, we use the spelling set forth in the indictment.