Opinion
No. 12–P–1082.
2013-08-9
COMMONWEALTH v. Nilton J. RAMOS.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of disorderly conduct, G.L. c. 272, § 53, and threatening to commit a crime, G.L. c. 275, § 2. On appeal, he argues that the evidence was insufficient to support either of these convictions. We affirm.
Standard of review. We 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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).
Discussion. 1. Threatening to commit a crime. “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. Robicheau, 421 Mass. 176, 183 (1995). After the defendant was handcuffed and placed in the back of the police cruiser, he said to Officer Lopez, “I'm going to shoot you, motherfuckers, as soon as I get out.”
The defendant makes the limited argument that the evidence was insufficient for the element of intent or ability to carry out the crime. We disagree. The defendant is correct that he could not have carried out the threat while restrained in the cruiser, but the threat explicitly contemplated shooting the officers immediately after he was released. The absence of a present ability to carry out the threatened crime does not preclude a conviction for threatening to commit a crime. See Commonwealth v. Milo M., 433 Mass. 149, 156 (2001); Commonwealth v. Ditsch, 19 Mass.App.Ct. 1005, 1005 (1985). Given the events that transpired between the defendant and the officers, a rational jury could have concluded that the defendant had the intent and ability to commit the crime once he was released. 2. Disorderly conduct. The conviction of disorderly conduct was placed on file with the defendant's consent and thus is not properly before this court on appeal. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). However, because a question of insufficiency of the evidence implicates due process, we have reviewed the evidence, and conclude it is sufficient to support the conviction.
Officer Lopez testified that he was upset by the comment, but did not fear the defendant at the time. Although apprehension is, as the defendant correctly acknowledges, an objective test that does not depend on subjective fear, the potential victim's subjective apprehension has probative value as to the capacity of the threats to create apprehension and to the intent to intimidate. See Commonwealth v. Winter, 9 Mass.App.Ct. 512, 528 (1980).
“A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or ... (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
“ ‘Public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access....” Commonwealth v. Chou, 433 Mass. 229, 232 n. 3 (2001), quoting from the Model Penal Code § 250.2 (1980).
The Massachusetts crime of disorderly conduct follows the definition set forth in American Law Institute, Model Penal Code § 250.2 (1980) (identical to the language previously set out in the 1962 Proposed Official Draft). See Alegata v. Commonwealth, 353 Mass. 287, 304 (1967). Subsection (b) of § 250.2, however, has been declared unconstitutionally overbroad in Massachusetts because of its potential application to protected speech. See Commonwealth v. A Juvenile, 368 Mass. 580, 587–595 (1975).
The defendant first claims that his actions did not, or were not reasonably likely to, affect the public. He argues that because his actions occurred in a residential neighborhood, and because the eight or ten other people on the porch continued about their business, his actions did not affect the public. We disagree. First, several people in the group told the defendant to calm down, belying his claim that the group was unaffected. Second, this case is unlike Commonwealth v. Mulvey, 57 Mass.App.Ct. 579, 583–585 (2003), where we held that conduct that occurred on private property approximately thirty to fifty feet up a driveway and that was partially shielded by a fence was not sufficiently public under the disorderly conduct statute. In contrast, the defendant's conduct here occurred on the front lawn and sidewalk of a residential neighborhood in Dorchester. The commotion could have been seen or heard by neighbors or by passing motorists and pedestrians. Cf. Commonwealth v. Lopiano, 60 Mass.App.Ct. 723, 725 (2004) (holding evidence sufficient where events occurred in parking lot just off highway and near a motel lobby, restaurant, and mall). Accordingly, the evidence was legally sufficient to establish the “public” element.
Next, the defendant argues that he did not act “with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” Commonwealth v. Chou, supra, quoting from Model Penal Code § 250.2(1).
We disagree. In addition to several people of the group requesting the defendant calm down, Officer Lopez testified that he ordered the defendant to calm down several times. Cf. Commonwealth v. Feigenbaum, 404 Mass. 471, 475 (1989) (ignoring police warnings to stop blocking tow trucks would have been sufficient to show defendant's disregard of risk of public inconvenience, but lack of legitimate purpose not shown where political protest). Further, the fact that this incident occurred in a residential neighborhood would permit an inference that the defendant recklessly created a risk that his actions would inconvenience, annoy, or alarm the neighbors. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (“A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial”). On these facts, a rational jury could have found that the defendant acted with purpose or recklessly.
“Reckless” in this context refers to behavior that “consciously disregards a substantial and unjustifiable risk that the material element [of public inconvenience, annoyance, or alarm, or of creation of a hazardous or physically dangerous condition serving no legitimate purpose] exists or will result from his conduct.” Commonwealth v. Feigenbaum, 404 Mass. 471, 475 (1989).
The defendant finally argues that the evidence was insufficient to show that his actions were either threatening or tumultuous. Not only did the defendant clearly engage in threatening behavior, see section 1, supra, he also engaged in tumultuous behavior when he loudly screamed and flailed his arms during the fifteen-minute tirade. See Commonwealth v. Sholley, 432 Mass. 721, 729 (2000) (tumultuous conduct “characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance”). In addition, the defendant ignored several police orders to calm down. See Commonwealth v. Marcavage, 76 Mass.App.Ct. 34, 38 (2009) (tumultuous behavior may, in combination with other factors, “include[ ] the refusal to obey a police order”). Although this case shares some factual similarities with Commonwealth v. Lopiano, 60 Mass.App.Ct. at 724–726, the defendant's reliance on that case is misplaced. In Lopiano, after the officers told the defendant to leave, he turned back, shouted that the officers were violating his civil rights, and briefly flailed his arms. Id. at 724. We concluded that this evidence was legally insufficient for the “tumultuous” element. Id. at 726. Here, however, the defendant's tirade lasted for “quite a few minutes,” during which the officer told him multiple times to calm down, and it took one officer restraining the defendant's left arm and the other officer restraining his right to place him in handcuffs. A rational jury therefore could have concluded that the defendant's conduct was sufficiently tumultuous.
Judgment affirmed.