Opinion
No. 12–P–1648.
2013-10-30
COMMONWEALTH v. Joseph C. INACIO.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Joseph C. Inacio, appeals from his conviction of wilful and malicious destruction of property under $250, which stems from a trash can fire in a campus bathroom at the University of Massachusetts at Dartmouth. Inacio makes three arguments on appeal: (1) there was insufficient evidence to identify him as the perpetrator and insufficient evidence as to the requisite intent for the crime; (2) the trial judge improperly limited Inacio's testimony regarding his alibi; and (3) the prosecutor impermissibly referred to facts not in evidence during closing argument. We affirm.
Sufficiency of the evidence. Inacio claims that the Commonwealth did not present sufficient evidence to identify him as the person who set the fire; and that even if there was sufficient identity evidence, there was not sufficient evidence that the destruction of the trash can was wilful and malicious.
Evidence is sufficient if, viewed in the light most favorable to the prosecution, any rational trier of fact could find the defendant's guilt beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The Commonwealth presented sufficient identity evidence to convict Inacio. An eyewitness identified Inacio at trial, with 100 percent certainty, as the man he saw leaving the bathroom immediately before the fire was discovered. Multiple other witnesses placed Inacio in the area of the bathroom at the time of the fire, including a police officer who testified that he saw Inacio running at a time and place that was consistent with his having set the fire. In the light most favorable to the Commonwealth, a rational trier of fact could have found that Inacio was the person who set the fire.
In addition to the eyewitness identification evidence presented at trial, Inacio also made several admissions that would support his conviction by a rational trier of fact. When the police initially went to Inacio's dorm to interview him, he said that he knew they were there “about the fires.” Additionally, when the police told Inacio why he was a suspect, he stated, “It's not what you know, it's what you can prove.”
The Commonwealth also presented sufficient evidence to show that Inacio committed the crime both wilfully and maliciously. Wilful and malicious destruction of property requires a showing that, “[i]n addition to the intent to inflict injury to property, [there was] a state of mind infused with cruelty, hostility or revenge.” Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 4 (2001). Here, the Commonwealth presented evidence that an accelerant had been used in the trash can to set the fire, which supports a finding of wilful and malicious destruction. See Commonwealth v. Cimino, 34 Mass.App.Ct. 925, 927 (1993) (finding wilful and malicious destruction where defendant intentionally aimed and shot BB gun at car windows). The defendant did not set a fire in the men's room haphazardly and without direction, which then spread to the trash can and destroyed it. Rather, the defendant specifically set the fire inside of the trash can, intentionally destroying it. Moreover, a rational trier of fact could have inferred from the evidence presented that Inacio wanted to “tone out” the fire department as revenge for a previous disciplinary action. Thus, there was sufficient evidence to convict the defendant of wilful and malicious destruction of property.
“Toning out” refers to the signal that an activated fire alarm sends to the fire department.
Alibi defense. Inacio next argues that the judge improperly limited his alibi testimony under rule 14 of the Massachusetts Rules of Criminal Procedure, as amended, 444 Mass. 1501 (2005). However, defense counsel did not make an offer of proof as to the substance of Inacio's excluded testimony at trial. Error cannot be predicated upon a ruling excluding evidence unless “the substance of the evidence was made known to the court by an offer of proof ....“ Mass. G. Evid. § 103(a)(2) (2013). See Commonwealth v. Chase, 26 Mass.App.Ct. 578, 581 (1988). A court may still take notice of a plain error in a criminal case if “such error constitutes a substantial risk of a miscarriage of justice.” Mass. G. Evid. § 103(d).
Even if the judge committed error in limiting Inacio's testimony, such error did not create a substantial risk of a miscarriage of justice. As an initial matter, it appears that Inacio's testimony as to his alibi itself was not substantially limited; the defendant testified to his whereabouts on both direct examination and cross-examination. The judge only limited Inacio in providing further explanatory detail as to how he recalled his precise whereabouts when he had previously told police that he could have been in one of three locations. Further, even if Inacio had been able to offer such explanatory detail, the “alibi” he presented did not itself establish that he could not have set the fire. Thus, the alleged error did not create sufficient prejudice to have materially influenced the result in this case. See Commonwealth v.. Randolph, 438 Mass. 290, 298 (2002).
Commonwealth's closing argument. Finally, Inacio argues that the prosecutor impermissibly referred to facts not in evidence during closing argument when he stated that the defendant “had wore, like, bangs” at the time of the fire. Because defense counsel did not timely object to the prosecutor's remark during trial, we review the issue to determine whether the comment created a substantial risk of a miscarriage of justice. See Commonwealth v. Miranda, 458 Mass. 100, 114 (2010), cert. denied, 132 S.Ct. 548 (2011).
Although there was no evidence presented at trial that Inacio had bangs on the date of the fire, rendering the prosecutor's statement impermissible, we cannot conclude that the statement created a substantial risk of a miscarriage of justice. For the reasons discussed above, the Commonwealth presented sufficient evidence for the trier of fact—in this case, the judge—to have found the defendant's guilt beyond a reasonable doubt. We are confident that, even if the prosecutor's statement had not been made, the result would have been the same. See Commonwealth v. Fossa, 40 Mass.App.Ct. 563, 570 (1996). The conviction is affirmed.
Judgment affirmed.