COMMONWEALTH v. WILFREDO SANTIAGO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After approaching the victim, displaying the handle of a gun, and saying, “this is for you,” the defendant was convicted at a District Court bench trial of threatening to commit a crime, G. L. c. 275, § 2, and assault by means of a dangerous weapon, G. L. c. 265, § 15B (b). He contends that (1) both convictions must be overturned because they were premised on faulty instructions and (2) there was insufficient evidence to sustain his conviction on the charge of assault by means of a dangerous weapon. We affirm.

Background. The victim was eating dinner at a restaurant with his three children, aged four, six, and seventeen, when the defendant walked up to their table. The victim knew the defendant because the victim's daughter used to date the defendant's brother. The defendant “pull[ed] up his shirt, had a gun, black with silver on it,” and said, “Oh, this is for you,” and, “You should be out of around here. And so you lucky where you find me. I know where you live and I know where to get you at.” Then he left. The gun was tucked into the defendant's pants and was exposed when the defendant lifted his shirt and “showed [the victim] the gun.” The defendant appeared “angry, upset.” The victim's first thought was “[his] kids, nothing else,” and he was afraid the defendant might do something. The victim called the police.

Discussion. 1. Instructions. After the trial in this case, the United States Supreme Court issued Counterman v. Colorado, 600 U.S. 66, 79-82 (2023), holding that a criminal prosecution premised upon a true threat must be accompanied by a mens rea element of at least recklessness in order to protect First Amendment rights to freedom of expression. In Commonwealth v. Cruz, 495 Mass. 110, 111 (2024), the Supreme Judicial Court held that, pursuant to Counterman, the offense of threatening to commit a crime must also include this mens rea. Although the threats case in Cruz had been tried prior to the issuance of Counterman, the court held that Counterman applied. Cruz, supra at 113. Since the jury had not been instructed on the proper mens rea in Cruz, the threats conviction was vacated. Id. at 114.

The defendant contends that his case is in the same posture as Cruz and that we should presume that the judge instructed himself incorrectly, as the judge instructed the jurors in Cruz, 495 Mass. 113-114. Although we ordinarily presume that judges instruct themselves correctly, see Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451 (2005), in this case it may be reasonable to expect that the judge instructed himself based on the model jury instructions which did not, at that time, include the required mens rea element.

The defendant stands on a different footing, however, because, unlike in Cruz, the defendant here was also convicted of assault by means of a dangerous weapon (immediately threatened battery theory), a specific intent crime. See Commonwealth v. Oswaldo O., 94 Mass. App. Ct. 550, 553 (2018). The judge therefore must have found that the defendant “intended to put [the victim] in fear of an imminent battery.” Instruction 6.305 of the Criminal Model Jury Instructions for Use in the District Court (2022) (assault by means of a dangerous weapon). See Commonwealth v. Lavrinenko, 473 Mass. 42, 56 (2015) (immediately threatened battery entails defendant's intent to put victim in fear of imminent bodily harm). Therefore any error in the judge's self-instruction on the threats charge was harmless. See Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847 (2018) (error in intent element of charge deemed harmless where conviction on another charge necessarily implied requisite intent).¹ ,²

2. Sufficiency of evidence. The defendant also contends that his motion for a required finding of not guilty on the assault by means of a dangerous weapon charge was improperly denied. “In reviewing a denial of a motion for a required finding of not guilty, our inquiry is whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact that the essential elements of the crime have been proven beyond a reasonable doubt.” Commonwealth v. Vazquez, 69 Mass. App. Ct. 622, 626 (2007). “[F]indings drawn partly or wholly from testimonial evidence are accorded deference and not set aside unless clearly erroneous.” Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).

The trial evidence was sufficient to permit the judge to conclude that the defendant committed an “immediately threatened battery.” See Commonwealth v. Buttimer, 482 Mass. 754, 767 (2019); Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010); Commonwealth v. Howard, 106 Mass. App. Ct. 282, 286 (2025). He displayed a gun handle and told the victim it was “lucky” he was where he was -- that is, in a public space, surrounded by other people -- because the defendant knew where the victim lived and where to “get” the victim. The display of the firearm, combined with the words, was adequate to satisfy the factfinder that a battery was “immediately threatened” by the defendant's behavior, which is fairly described as “menacing.” See Howard, supra. Inconsistencies in the witness's description of the color of the weapon viewed in a high-stress environment were “aired through cross-examination and oral argument and are matters concerning the weight and credibility of the evidence that are the province of the [factfinder]” (quotation and citation omitted).³ Buttimer, supra at 765. Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to support the judge's denial of the motion for a required finding of not guilty.

Judgments affirmed.

FOOTNOTES

1.   For the same reason, we reject the defendant's argument that the assault by means of a dangerous weapon conviction should be vacated due to a presumed incorrect instruction on mens rea.

2.   The defendant also argues that “[t]he entire trial was tainted” by the fact that the parties did not have the benefit of the rule subsequently announced in Counterman. Again, given that the judge convicted the defendant of assault on a theory of an immediately threatened battery, requiring proof that the defendant intended to put the victim in fear of an imminent battery, it is doubtful that the Counterman rule, establishing that the factfinder find the defendant acted with recklessness to convict him of a true threat, could have materially affected the defense to the threats charge.

3.   We are similarly unpersuaded by the argument that proof was inadequate to show that the firearm was indeed an operable firearm. Such evidence is not required. See, e.g., Buttimer, 482 Mass. at 769 (“it is clear that a weapon need not actually be capable of inflicting death or serious harm to be a ‘dangerous weapon’ so long as it has the apparent ability to do so”); Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 2-3 (2019) (conviction for assault by means of a dangerous weapon upheld where defendant assaulted victim by brandishing replica toy gun).