COMMONWEALTH v. Claudia VILORIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant, Claudia Vilorio, was convicted of two counts of robbery, one armed and one unarmed.2 The convictions were based on evidence that the defendant participated in a joint venture to rob her former coworkers at Sunoco gas stations in Haverhill and Peabody as they attempted to deposit daily cash receipts. On appeal, the defendant claims that the judge abused her discretion in admitting evidence of the defendant's prior statement that she wanted to rob the assistant manager at a third Sunoco station. The defendant also claims that the evidence was insufficient to prove beyond a reasonable doubt that she was present at the scene of the robberies which, she claims, was a required element of proof under the judge's joint venture instruction. With respect to the Haverhill robbery, the defendant also argues that the evidence was insufficient to prove that she knew her coventurer was armed. Discerning no abuse of discretion in the admission of the defendant's prior statement and concluding that the verdicts were supported by sufficient evidence, we affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant worked as the assistant manager at the Sunoco gas station on River Street in Haverhill from 2008 to July of 2010. As the assistant manager, she was aware that the manager collected the prior day's cash receipts and deposited them each day before 1 p.m., usually by driving to Citizen's Bank. In July of 2010, the defendant was transferred to the Sunoco station in Peabody as an accommodation because she had moved to Marblehead.
The Haverhill robbery. On August 1, 2010, the defendant telephoned Mazen Anise, her former manager at the Haverhill Sunoco station. She asked where he was and what he was doing. Anise responded that he was “doing the paperwork” and counting the money for the daily cash deposit from the Haverhill station. The defendant ended the conversation and said she would call back. Anise never heard from the defendant again. Shortly after noon, Anise left the Sunoco station to deposit approximately $5,800 in cash receipts. As Anise approached his car, an Hispanic man with a silver handgun ran toward him and demanded the money, striking Anise repeatedly with the firearm. The man took the bag of money, opened it, pushed Anise behind the station, forced him to remove his clothing, beat him, threatened to shoot him, and then fled on foot with the money. A bystander observed the robber jump over a guard rail and enter a “brown midsized American car” which then drove off.
Surveillance photographs from a nearby Dunkin’ Donuts showed a brown Chevrolet Monte Carlo driving through the Dunkin’ Donuts parking lot at 12:06 p.m., seconds after Anise was robbed. Further investigation revealed that the mother of the defendant's boyfriend owned a brown Monte Carlo. Sometime after 4:00 p.m. on the day of the robbery, the Monte Carlo was observed in the parking lot of the apartment building where the defendant lived with her boyfriend.
The Peabody robbery. The defendant began working at the Sunoco station in Peabody in August 2010. She was one of the employees responsible for making the daily cash deposits at the Sovereign Bank on Lowell Street. The defendant's employment at the Peabody station was terminated on August 31, 2010. The following day, as Sunoco employee Tulsidas Setpal walked toward the Sovereign Bank to deposit the cash receipts from the Peabody station, an unidentified Hispanic man ran toward him yelling “money, money, money,” took the money bag from Setpal, and struck him in the head. A witness saw the robber jump into the back seat of a black sedan “fleeing out of the area pretty quick.”
When investigators spoke to the defendant on September 3 and informed her that “her car”3 was seen fleeing the scene of the Peabody robbery, she responded that it was not possible because she and her boyfriend had been in New York with the car at that time. Thereafter, the defendant contacted another former co-worker and asked him to falsely report that her car had been stolen while they were at a party. She also contacted her ex-husband and told him that the car had been stolen and asked him to report the theft to the police. Ultimately, the defendant provided a written statement to the police stating the car was stolen on August 31, 2010, the day before the Peabody robbery.
Discussion. 1. The defendant's prior statement. Over the defendant's objection, the judge permitted the Commonwealth to elicit testimony that more than a year before the crimes at issue here, the defendant told a coworker that she wanted to rob the Methuen station assistant manager while she was making a daily cash deposit. On appeal, the defendant argues that the evidence should not have been admitted because it was not relevant and the risk of unfair prejudice outweighed its probative value. The defendant also argues that the testimony constituted inadmissible evidence of prior bad acts.
The defendant's argument that her earlier statement was too remote in time to be relevant might have force in different circumstances. In this case, however, the defendant repeated a slightly different version of the statement only hours before the Haverhill robbery. Specifically, the defendant asked a coworker for the Methuen assistant manager's license plate number because she “wanted to do something bad to her.” In these circumstances, the judge did not abuse her discretion in concluding that the defendant's 2009 statement was not too remote because it was “tie[d] ․ back in” by her statement on the morning of the Haverhill robbery. Nor did the judge err in concluding that the defendant's earlier statement was relevant to the defendant's intent to steal money from other Sunoco employees in 2010. Statements that show an intention of the declarant are admissible to prove that the intention of the declarant was acted upon. Commonwealth v. Vermette, 43 Mass. App. Ct. 789, 802 (1997).
“Even if the evidence is relevant for a proper purpose, it will not be admitted if the judge determines that its probative value is outweighed by risk of unfair prejudice to the defendant, taking into account the effectiveness of any limiting instruction.” Commonwealth v. Chalue, 486 Mass. 847, 866 (2021). Here, the potential for prejudice was low where the defendant's 2009 statement was cumulative of her similar statement on the morning of the Haverhill robbery which was admitted without objection. The potential prejudice was further minimized by the judge's forceful limiting instructions at the time the evidence was admitted and again in her final charge. See Commonwealth v. Forte, 469 Mass. 469, 480-481 (2014). Those instructions required the jury to consider the evidence “solely on the limited issue of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or nature of the relationship.”
The defendant also argues that the evidence should have been excluded as inadmissible prior bad act evidence. Evidence of prior bad acts may not be introduced for purposes of showing the accused's propensity to commit the crimes charged; however, such evidence may be admissible to demonstrate “a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2019). As we have noted above, the evidence was admitted for those limited purposes.
2. Sufficiency. a. Joint venture. The defendant argues that the evidence was not sufficient to prove beyond a reasonable doubt that she was present at either of the robberies, and the convictions should be reversed because the judge instructed the jury that there were alternative theories of joint venture liability, one of which required proof of the defendant's presence. We are not persuaded.
In Commonwealth v. Zanetti, 454 Mass. 449 (2009), the Supreme Judicial Court simplified the model instruction on joint venture liability by “[s]hifting from the language of joint venture to the language of aiding and abetting,” reasoning that the “law on joint venture will be better understood ․ if in the future judges simply instruct juries ․ that a defendant is guilty of a crime if he knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that crime.” Id. at 450. This change did not “enlarge or diminish the scope of existing joint venture liability.” Id. at 468. It simply clarified the existing instruction. Because this case was tried after Zanetti, the judge should have given the Zanetti instruction, rather than the instruction that described alternative theories of joint venture liability. There was no prejudice to the defendant, however, where the instruction given added the element of the defendant's presence to the Commonwealth's burden of proof when it was no longer necessary. See Commonwealth v. Mullane, 445 Mass. 702, 718 n.11 (2006) (“We cannot see how requiring the Commonwealth to prove an additional element in its case would harm the defendant”).
In any event, our sufficiency review after Zanetti is limited to whether the evidence supports a finding that “the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense” (citation omitted). Commonwealth v. Akara, 465 Mass. 245, 253 (2013). Here, there was ample circumstantial evidence of the defendant's knowing and intentional participation in the robberies. In addition to the defendant's prior statement of intent to rob the Methuen assistant manager as she made the daily cash deposit, the jury heard that the defendant was previously employed at each of the targeted Sunoco stations and was familiar with how, when, and where the cash deposits were made. The jury could reasonably have inferred that the defendant used that knowledge to plan the time and location of the robberies. A rational juror also could have inferred that the defendant called Anise on the morning of the Haverhill robbery to confirm that he was planning to deposit cash receipts that day, because she and her accomplice were planning to rob him. Finally, viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably inferred that the defendant was driving the brown Monte Carlo getaway vehicle which was also observed parked at the defendant's residence later on the day of the Haverhill robbery.
Further, the black sedan seen driving from the Peabody robbery was similar to the black sedan that the defendant was using at the time. After the police contacted the defendant to inquire about the black sedan, she called a third party and asked him to falsely report that the car had been stolen. This evidence of the defendant's consciousness of guilt, considered together with the defendant's prior statement and her familiarity with her former employer's practice of making midday cash deposits at Sovereign Bank, was powerful circumstantial evidence that the defendant planned and helped carry out each of the robberies, and was sufficient to sustain the Commonwealth's burden of proof. See Commonwealth v. Kelly, 470 Mass. 682, 693 (2015) (“evidence of a defendant's guilt may be primarily or entirely circumstantial”).
b. Knowledge of firearm. The defendant also claims that the evidence was insufficient to prove beyond a reasonable doubt that she knew that the robber was armed during the Haverhill robbery. “In order for the jury to find the defendant guilty of armed robbery, the Commonwealth was required to prove either that the defendant was armed with a dangerous weapon or that [s]he knew that a coventurer was so armed.” Commonwealth v. Cooley, 477 Mass. 448, 451 (2017). “Knowledge that a fellow joint venturer is armed may be inferred when, from the circumstances of the crime, a victim's resistance is reasonably to be anticipated such that participants in the crime would have recognized the need for some means by which to overcome that resistance.” Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003). Here, the jury could reasonably infer that the defendant knew that the store manager would be transporting a large amount of cash to his vehicle and could anticipate that the manager would resist an effort to steal that cash. It would have been reasonable for the defendant to expect her coventurer would be armed in anticipation of overcoming that resistance.4 The evidence was sufficient to prove beyond a reasonable doubt that the defendant knew that her coventurer was armed.
2. The defendant was convicted of the armed robbery of Mazen Anise on August 1, 2010, which we refer to as the Haverhill robbery. The defendant was convicted of the lesser included offense of unarmed robbery of Tulsidas Setpal on September 1, 2010, which we refer to as the Peabody robbery.
3. At the time the defendant was in possession of a 2001 black Oldsmobile Aurora registered to her ex-husband.
4. Because we conclude that the jury could have inferred that the defendant knew her coventurer was armed from the nature of the robbery, we need not separately address the Commonwealth's argument that the defendant saw that her coventurer was armed when she acted as the getaway driver.
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