Opinion
21-P-488
09-28-2022
COMMONWEALTH v. MIGUEL CABRERA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant was convicted of assault and battery on a family or household member, G. L. c. 265, § 13M (a.), and disorderly conduct, G. L. c. 272, § 53. On appeal, the defendant claims error in the admission of evidence that bloody tissues were seen in his apartment. The defendant also argues that the evidence was insufficient to support his conviction of disorderly conduct. We affirm.
Sentence was not imposed on the disorderly conduct conviction. Rather, the judge placed that conviction on file. In the normal course, we do not consider appeals of convictions placed on file because there has been no final judgment. We consider the appeal in this case, however, because the defendant did not consent to the filing of the conviction. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975).
Background.
We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On April 21, 2019, at approximately 8:45 A,M., Jacob Cragg and his wife Mary Kate Cragg were driving on Rantoul Street, a city street in Beverly lined with parked cars, sidewalks, businesses, and apartment buildings. It was a Sunday and there were few people on the street.
As Mr. Cragg drove, Mrs. Cragg's attention was drawn to the third-floor balcony of an apartment building on Rantoul Street. There she saw a man repeatedly punching a woman in the face. Mr. Cragg stopped the vehicle and Mrs. Cragg called the police to report what she had seen. As she did so, the Craggs saw the man punch the woman in the face again and again.
When Officer Joseph Santamaria responded to the scene shortly thereafter, the Craggs told him what they had witnessed and directed him to the third-floor corner balcony of 480 Rantoul Street. They described the man they had seen on the balcony as Hispanic, with dark hair, and a red shirt or "hoodie." Officer Santamaria knocked on the door of the apartment and was greeted by the defendant, a tall Hispanic man wearing a red shirt. The defendant said that he had been in an argument with his girlfriend and that they had argued on the balcony so that they would not disturb the children. The defendant told Officer Santamaria that his girlfriend left the apartment after the argument and may have gone to her mother's residence in Saugus.
The defendant consented to a search of his apartment and Officer Santamaria confirmed that the only other people in the apartment were two young children in the bedroom. During the search, Officer Santamaria saw bloody tissues in the toilet.
Several hours later, the victim appeared at the Beverly Police Station at Officer Santamaria's request. Officer Santamaria testified that the victim, who did not testify at trial, looked like she had been crying and had red marks on her neck.
Discussion.
1. Evidence of the bloody tissues.
The defendant filed a motion in limine to exclude Officer Santamaria's observation of the bloody tissues. The defendant argued that the evidence was not relevant because the Commonwealth could not establish that the blood on the tissues came from the victim. He also argued that the probative value of the evidence was outweighed by its prejudicial impact. We review the admission of the evidence for abuse of discretion. See Commonwealth v. Denton, 477 Mass. 248, 250 (2017).
Evidence is relevant if it has some tendency to prove a material fact. Harris-Lewis v. Mudge, 60 Mass.App.Ct. 480, 485 (2004). "Relevant evidence is admissible as long as the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Commonwealth v. Wall, 469 Mass. 652, 661 (2014). Here, other evidence showed that the defendant repeatedly punched the victim "in the middle of the face" with his fist, and with sufficient force that "her head went back." It was reasonable to infer that the repeated blows to the victim's face could cause her to bleed. Officer Santamaria's observation of the bloody tissues in the toilet within minutes of the reported assault further supported the inference that the blood on the tissues was related to the assault on the victim.
The judge was not required to accept the victim's hearsay statement to the police that the bloody tissues came from one of her children. That statement went to the weight of the evidence, not its admissibility. See Commonwealth v. Hoime, 100 Mass.App.Ct. 266, 273 (2021). Nor do we discern anything unfairly prejudicial about the bloody tissue evidence. There was nothing inflammatory in the description of the evidence and Officer Santamaria's testimony regarding his observation was brief. The admission of evidence regarding the bloody tissues was within the judge's discretion.
2. Sufficiency of evidence of disorderly conduct.
We review the defendant's sufficiency claim to 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" (emphasis in original). Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). General Laws c. 272, § 53 (b), punishes "[d]isorderly persons and disturbers of the peace." "Disorderly persons" are those who "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . .: (a) engage[] in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Commonwealth v. Peace Chou, 433 Mass. 229, 232 (2001), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 596 (1975) .
The defendant claims that the evidence was insufficient to support a conviction for disorderly conduct because there was no evidence that he either intentionally or recklessly created a risk of public inconvenience, annoyance, or alarm. The Commonwealth does not argue that the defendant acted with the intent to cause public inconvenience, annoyance or alarm. Therefore, we focus our review on whether there was sufficient evidence that the defendant's conduct recklessly created a risk of public alarm.
A defendant acts recklessly when he "consciously disregard[s] a substantial and unjustifiable risk of public inconvenience, annoyance or alarm." Commonwealth v. Feigenbaum, 404 Mass. 471, 474-475 (1989). "'Public' is defined as 'affecting or likely to affect persons in a place to which the public or a substantial group has access.'" Commonwealth v. Mulvey, 57 Mass.App.Ct. 579, 582 (2003), quoting A Juvenile, 368 Mass. at 586. The Commonwealth need only establish that a defendant's conduct "was likely to have had an impact upon persons in an area accessible to the public." Mulvey, 57 Mass.App.Ct. at 583.
There was ample evidence from which the jury could conclude that the defendant, by violently beating his girlfriend in public view, recklessly created a risk of public alarm. The jury heard that the defendant repeatedly struck the victim in the face while on a balcony facing Rantoul Street, a city street lined with sidewalks, parked cars, businesses, and other apartment buildings. From this evidence the jury could have reasonably inferred that the balcony was exposed to public view and that anyone witnessing the violent beating of the victim would be alarmed. Indeed, the jury heard that the Craggs witnessed the attack as they drove by the apartment building on Rantoul Street and were alarmed enough to stop and call the police. This evidence, viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the defendant's violent conduct "was likely to have had an impact upon persons in an area accessible to the public." Mulvey, 57 Mass.App.Ct. at 583.
Judgments affirmed.
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.