Opinion
21-P-312
03-22-2022
COMMONWEALTH v. Phillip J. DANIEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, the defendant was convicted of assault on a family or household member. Because we are satisfied that the evidence was sufficient to prove that the defendant assaulted the victim and the defendant challenges only the sufficiency of the evidence as to that element of the offense, we affirm.
Facts. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Cordle, 412 Mass. 172, 175 (1992), the judge could have found that the defendant and the victim, his wife, had a dispute one morning over how the defendant should treat his incipient cold symptoms. The dispute continued via text message throughout the day and expanded to include issues related to the couple's marriage. When the defendant arrived home at approximately 8 P.M. that evening, the victim attempted to start a conversation with the defendant, in the presence of the victim's father and the defendant's mother, about the impact of their conflict on their children and ways in which they might avoid future "confrontations." As the victim spoke, the defendant became increasingly agitated, raising his voice and becoming visibly angry. Within minutes, the defendant had risen from his chair and was "screaming" at the victim, "storm[ing]" in and out of the apartment and shouting from another room. When the victim confronted the defendant with a book about "abusive relationships," the defendant became angrier still, "screaming louder, ... pacing even more, [with] his fists ... clenched, ... ready to burst."
The victim got "very nervous," and, once she stood up, the defendant came within a foot of her, "[getting] right into [her] face." At that point, the defendant had his hands in fists, was "shaking out of anger and red in [the] face," and "was so angry that it just looked like something was going to happen." The victim was crying and yelling back at the defendant when she saw him "angrily looking around." There was a glass of juice on a bookcase, and the defendant, then three feet away from the victim, "went for the glass, grabbed it, picked it up above his head and whipped it as hard as he possibly could" at the floor in front her. The glass hit the ground inches from the victim's feet, then shattered across the room. The victim was "horrified and petrified, ... very scared," particularly since the defendant, who had acted violently during previous arguments with her, "had never actually thrown something that close to [her]."
Discussion. In assessing the sufficiency of the evidence, we ask "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" (citation omitted). Commonwealth v. Nee, 458 Mass. 174, 180 (2010). General Laws c. 265, § 13M (a ) prohibits "assault ... on a family or household member." The defendant does not challenge the sufficiency of the evidence that the victim, his wife, was a "family or household member"; his appeal is limited to the sufficiency of the evidence that he committed an assault on the victim.
Because the Commonwealth tried the case on the theory of assault as an imminently threatened battery, see Commonwealth v. Lavrinenko, 473 Mass. 42, 56 (2015) (discussing alternate theories of assault), the question before us is whether the evidence was sufficient to prove that (1) "the defendant engaged in ‘objectively menacing’ conduct with the intent to put the victim in fear of immediate bodily harm" (citation omitted), Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000), and (2) the victim had an actual and reasonable apprehension of the threat of physical harm. See Lavrinenko, 473 Mass. at 56 ; Commonwealth v. Porro, 458 Mass. 526, 533-534 (2010).
We are satisfied that, in the context of a heated argument that had escalated on the defendant's part to the point of "screaming," clenched fists, and "[getting] right into [the victim's] face," the defendant's raising a glass over his head and "whipp[ing] it" with force on the ground at the victim's feet was " ‘objectively menacing’ conduct," Gorassi, 432 Mass. at 248, that was intended to cause the victim to fear being physically hurt, and which did cause the victim such reasonable apprehension. See Lavrinenko, 473 Mass. at 56, quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990) ("actions and words of the defendant in light of the attendant circumstances" determine reasonableness of victim's apprehension); Parreira v. Commonwealth, 462 Mass. 667, 673 (2012) (defendant's "erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension" of imminent battery); Commonwealth v. Boodoosingh, 85 Mass. App. Ct. 902, 902-903 & n.1 (2014) (evidence sufficient to prove assault as imminently threatened battery where defendant verbally threatened victim while holding bat, then lifted hand to hit victim but was pushed away). Even if the defendant was not aiming the glass at the victim when he released it, that fact does not neutralize the menace inherent in the defendant's holding a glass over his head, poised to throw in the victim's direction, nor does it make unreasonable the victim's apprehension of imminent physical harm.
The defendant's passing references to remarks about intent made by the judge at the time of the guilty verdict do not go to the sufficiency of the evidence to support that verdict, and do not rise to the level of acceptable appellate argument.
Judgment affirmed.