Opinion
14-P-419
09-03-2015
COMMONWEALTH v. LUZANDER MONTOYA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A Superior Court jury convicted the defendant of assault and battery and threatening to commit a crime. The charges arose from an episode of domestic violence involving the defendant and his girlfriend. On appeal, the defendant argues that there was insufficient evidence to prove the offense of threatening to commit a crime and, consequently, the judge erred in denying his motion for a required finding of not guilty, which was filed at the close of the Commonwealth's case and renewed following the jury's verdict. See Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). For the reasons that follow, we reverse the judgment on the charge of threatening to commit a crime. We do not disturb the judgment on the charge of assault and battery, which the defendant does not challenge.
The grand jury returned counts of an indictment charging other crimes stemming from the same incident and one that occurred on July 15, 2011. See note 2, infra. These charges were resolved as follows: a charge of intimidation of a witness was dismissed prior to trial, the judge granted the defendant's motion for a required finding of not guilty on a charge of assault with intent to murder, and the defendant was acquitted of a second count of assault and battery.
Facts. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the facts are as follows. The victim was involved in a tumultuous relationship with the defendant with whom she had lived "on and off" for many years. In September, 2011, the victim lived on Tokeneke Road in Holyoke with the defendant, their four year old son, and the victim's eight year old daughter from a previous relationship. At some point during the day on September 21, 2011, the victim and the defendant had a heated argument over the victim's alleged infidelity. The argument escalated and ultimately turned into a physical confrontation. At about 6:00 P.M., the victim left the apartment with her children and sought refuge in the home of her aunt, who lived nearby. The victim telephoned 911 using her aunt's telephone and reported "domestic violence." She stated that the defendant was chasing her around the neighborhood and implored the police to "hurry" as the defendant was "crazy" and had taken her car. Holyoke police Officer Dorota Beben was dispatched to the victim's home in response to the 911 call. The victim was outside when Officer Beben arrived. The victim appeared scared, and was crying. The victim told Officer Beben that her boyfriend (the defendant) had beat her up. She had blood on her right ear, scratches on her neck, and a bruise on her right arm. In addition, as Officer Beben observed, the victim's apartment was in complete disarray, trash was spilled on the floor, the curtains had been ripped down, and the couch had been moved away from the wall.
Certain facts relating to a separate incident, which took place on July 15, 2011, and which formed the basis for the assault and battery charge that resulted in an acquittal, are omitted because they have no bearing on this appeal.
These were the children's ages at the time of trial.
The victim testified for the Commonwealth, but she was not a cooperative witness. She claimed both that she could not remember the incident and that it did not happen. She also speculated that the injuries observed by the police and depicted in photographs, which were taken of her at the time of the incident and introduced at trial, were caused by playing softball. At the time of the trial, the victim was expecting her second child with the defendant.
Discussion. "The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000), quoting from Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). There is no merit to the defendant's argument that the Commonwealth did not present sufficient evidence to prove that a threat was communicated. As the Commonwealth notes in its brief, there is no requirement that the expression of intention be verbal. Cf. Commonwealth v. Milo M., 433 Mass. 149, 151 (2001). We agree with the Commonwealth that, viewed in context, the defendant's conduct -- chasing the victim around the neighborhood while acting "crazy" -- communicated an intent to injure the victim or her property.
There is, however, merit to the defendant's second argument that because both the indictment and the verdict slip specified that the underlying crime was "[to] kill," the Commonwealth was required to prove that the defendant threatened to kill the victim and not merely that the defendant threatened to commit a crime. To begin with, the Commonwealth's theory of the case, as expressly stated to the jury, was that the defendant threatened to kill the victim. The prosecutor's opening statement identified the threat to kill the victim as the crux of the offense. Specifically, he stated: "the September 21 incident not only involved physical violence, but also involved a threat to kill her. That is, Luzander Montoya told her that if she called the police on him, he would kill her." Although the prosecutor did not refer to the theory of the case in his closing argument and, more significantly, the judge did not identify the underlying crime when she instructed the jury on the elements of the offense, the case was unquestionably presented to the jury on the theory that the underlying crime was "to kill." Furthermore, as noted, the verdict slip specified that the crime in question was to "kill," as to which the jurors marked the box next to the word "guilty." In these circumstances, we think that the jury did, indeed, find the defendant guilty of threatening to commit an offense and that offense was to "kill." Because the evidence was insufficient to prove beyond a reasonable doubt that the crime the defendant intentionally threatened was "to kill" the victim as opposed to some other crime, the conviction of threatening to commit a crime cannot stand.
This argument was raised for the first time at oral argument. Generally, arguments raised for the first time at oral argument are waived. In this case, however, we consider the defendant's claim because we view it as an extension of the argument made in his brief concerning the sufficiency of the evidence.
The judge instructed the jury that to convict on the threatening to commit a crime charge they were required to find as follows: "First, that the defendant communicated to [the victim] an intent to injure her person or property now or in the future. Second, that the injury that was threatened, if carried out, would constitute a crime. And, third, that the defendant made the threat under circumstances which could reasonably have caused [the victim] to fear that the defendant had both the intention and the ability to carry out a threat."
Additionally, the judge stated to the venire that "[t]he allegation is that on September 21st, at Holyoke, Luzander Montoya assaulted and beat [the victim], that on the same date he assaulted her with intent to murder or threatened to kill." We are aware that this latter description was given before the jury were empanelled, and merely note that this may have had a cumulative effect. See Commonwealth v. Tyree, 387 Mass. 191, 207-209 (1982) (considering judge's remarks to venire concerning nature of allegations).
Conclusion. The judgment on the charge of threatening to commit a crime is reversed, the verdict is set aside, and that indictment is to be dismissed. The judgment on the charge of assault and battery is affirmed.
There is no need to remand this case for resentencing
So ordered.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 3, 2015.