Opinion
No. 15–P–301.
05-25-2016
COMMONWEALTH v. Manuel SANABRIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of attempted murder, G.L. c. 265, § 16, aggravated kidnapping, G.L. c. 265, § 26, assault and battery by means of a dangerous weapon causing serious bodily injury, G.L. c. 265, § 15A(c), second theory mayhem, G.L. c. 265, § 14, armed robbery, G.L. c. 265, § 17, intimidation of a witness, G.L. c. 268, § 13B, and larceny of a motor vehicle, G.L. c. 266, § 28. He was acquitted of rape, G.L. c. 265, § 22(b ). On appeal, the defendant claims, first, that there was insufficient evidence to convict him of armed robbery, and second, that several of his convictions are duplicative. We affirm.
The mayhem indictment was on the second of the two theories of the crime listed in G.L. c. 265, § 14. Henceforth, this charge will be referred to as “mayhem.”
Background. We set forth the facts in the light most favorable to the Commonwealth, except where the jury's verdict rejected the Commonwealth's theory of the case.
The defendant and the victim dated when the victim was fifteen years old. In the winter of 2011, when the victim was twenty-two, the defendant got back in touch with her. The defendant and the victim saw each other three times during that winter.
On October 9, 2011, the defendant sent the victim a text message asking her to take him to her church. The victim picked up the defendant in her car. She had four hundred dollars in cash in her purse, along with a cellular telephone (phone).
The defendant asked if they could stop at his brother's house so he could pick up a key, and the victim agreed. After she pulled into a parking lot near the house, the defendant put her in a head lock. He told her to get into the back seat of the car and keep her head down. She complied. The defendant drove the car for a few minutes, until they arrived at a grassy area. The defendant then moved to the back seat and had sex with the victim.
The victim testified that the sex was nonconsensual and forcible, while the defendant testified to the contrary. The jury acquitted the defendant of rape.
Afterward, the defendant strangled the victim until she lost consciousness. When she regained consciousness, the defendant was hitting her in the head and face with a rock. He used two different rocks to strike her thirty to fifty times. These blows resulted in multiple, deep lacerations to the face and scalp that cut to the victim's bone. She tried to block some of the blows with her arms. Her left arm ended up fractured, bruised, and lacerated.
While the defendant was striking the victim with the rock, she pleaded with him to stop. She promised not to tell anyone and told him that he could have her money, her phone, and her car. After she made these offers, he stopped hitting her. He returned to the front seat of the car and drove for five minutes before stopping at the side of the road. He told her to run down an embankment to a river, and wait there until he drove away. The victim could not open the door with her broken arm, so the defendant had to let her out of the car.
After the defendant drove away, the victim walked back up the embankment and ran into the road looking for help. Eventually she collapsed in the middle of the road and someone called 911. The victim told the medics that Manuel Sanabria had raped her and tried to kill her.
The victim's broken arm healed in three months, but at the time of trial still occasionally caused her pain. She was left with permanent scars on the top of her head, which prevent her hair from growing.
The defendant testified in his own defense. In his account, the victim drove him to the grassy area so that they could have consensual sex in the back seat of her car. After they had sex, he reached into her purse to steal her money. The victim screamed and “swiped” at him, grazing his face. He responded by hitting her repeatedly, first with his hand and then with a rock. He admitted to causing the injuries to the victim's face, head, and arms by striking her with a rock. He also admitted to taking her money and her car.
Discussion. 1. The sufficiency of the evidence of armed robbery. The defendant argues both that there was insufficient evidence that there was in fact a taking of the victim's money and that there was insufficient evidence that he formed the intention to steal from the victim before the assault ended.
Sufficient evidence exists when, viewing the evidence in the light most favorable to the Commonwealth, a rational fact finder could find each element of the offense beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that because he moved for a required finding of not guilty at the close of the Commonwealth's case, we may consider only the evidence presented up to that point when assessing sufficiency. See Commonwealth v. Kelley, 370 Mass. 147, 150 & n. 1 (1976). The Commonwealth argues, in opposition, that because the defendant did not make any particular argument with respect to the armed robbery charge when he made his motion, we may consider all the evidence. See Commonwealth v. Crimmins, 46 Mass.App.Ct. 489, 492 n. 5 (1999). We need not decide this question, as we hold that the evidence presented by the close of the Commonwealth's case was sufficient.
There was sufficient evidence that the defendant took the purse, including the money inside. One of the elements of armed robbery, which the Commonwealth has the burden of proving beyond a reasonable doubt, is that the defendant took money or other property from the victim. See Commonwealth v. Knapp, 61 Mass.App.Ct. 514, 516 (2004). The victim testified that she had $400 in her purse on the day of the attack and that the defendant stopped striking her with a rock only after she both promised not to tell anyone what happened and offered to give him her money, phone, and car. When the victim was unable to open the car door with her broken arm, the defendant reached over and let her out. A reasonable jury could conclude beyond a reasonable doubt that, where the money was part of the price the victim offered to pay for her life and the defendant was watching the victim as she left the car, she did not take her purse with her on the way out of the car.
Thus, the armed robbery conviction could also be sustained on the ground that the defendant took the victim's car. See Commonwealth v. Smith, 44 Mass.App.Ct. 394, 397 n. 2 (1998) (a car can be the subject of a robbery). However, if that were the basis for the conviction, the armed robbery conviction would be duplicative of the larceny of a motor vehicle conviction. Since we find that there was sufficient evidence that the defendant took the victim's money, we need not address this issue in light of the judge's separate and distinct acts instruction, discussed infra.
There was also sufficient evidence that the defendant formed the intent to steal from the victim before or during the assault. A defendant is guilty of armed robbery only if he forms the intent to steal before or during the assault. Commonwealth v. Moran, 387 Mass. 644, 646 (1982) (“The principal policy served by th[e] greater punishment [for robbery than for larceny from the person] is deterrence of the use of force (and the accompanying risk to human life) to obtain money or other property.... This policy is not served where the intent to steal is not formed until after the assault”). Contrary to the defendant's argument on appeal, the assault did not end when the defendant stopped beating the victim. “[A]n assault is defined as either an attempt to use physical force on another, or as a threat of use of physical force.” Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000). Thus, an assault is ongoing as long as the defendant threatens to use physical force. Here, the defendant paused the beating while the victim was begging for her life, but the threat of force remained while the victim promised not to tell anyone and offered to give him her money, phone, and car. It was only after this offer that the defendant got out of the back seat and into the driver's seat. A reasonable jury could therefore find beyond a reasonable doubt that the defendant had formed the intent to steal the money during the assault.
We assume, but do not, and need not, decide that the assault had ended at this point.
2. The convictions of aggravated kidnapping, mayhem, and assault and battery by means of a dangerous weapon causing serious bodily injury. The defendant was convicted of kidnapping aggravated by being armed with a dangerous weapon and inflicting serious bodily injury, mayhem, and assault and battery by means of a dangerous weapon causing serious bodily injury. He argues that (1) assault and battery by means of a dangerous weapon causing serious bodily injury is a lesser included offense of mayhem and that (2) the aggravating factors to the kidnapping charge are a lesser included offense of mayhem.
As a matter of law, the defendant is correct on the first point and incorrect on the second. Assault and battery by means of a dangerous weapon causing serious bodily injury is a lesser included offense of second theory mayhem. Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 129 (2009). On the other hand, aggravating factors are not themselves convictions that can be vacated as duplicative.
The question left open in Commonwealth v. Dykens, 438 Mass. 827, 840–841 (2003), and Commonwealth v. Rodriguez, 83 Mass.App.Ct. 267, 274–275 (2013), is the converse question: whether aggravating factors are “elements” of a felony for the purpose of determining whether an aggravated felony is a greater offense.
Both these questions of law are irrelevant here, however, since the judge instructed the jury: “You must consider each charge separately and return a separate verdict of guilty or not guilty for each charge based on separate and distinct conduct by the defendant as to each charge.” “Convictions of greater and lesser included offenses are allowed when they ‘rest on separate and distinct acts.’ ‘Whether a defendant's actions constitute separate and distinct acts or must be considered a single crime is a question of fact for the jury to resolve.’ “ Commonwealth v. Kelly, 470 Mass. 682, 699 (2015) (citations omitted).
There was sufficient evidence for the jury to convict the defendant of all three of these crimes on the basis of separate and distinct acts. The victim testified that the defendant struck her with a rock thirty to fifty times, leaving permanent marks all over her face and scalp and breaking one of her arms. A jury may find separate and distinct acts on the basis of separate blows or groups of blows. See Commonwealth v. Figueroa, 471 Mass. 1020, 1021 (2015).
Conclusion. The defendant's convictions are affirmed.
Judgments affirmed.