Opinion
20-P-781
12-09-2021
COMMONWEALTH v. Eduard SHVETSOV.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of disorderly conduct. On appeal, for a variety of reasons, he claims there was insufficient evidence to support his conviction. We affirm.
The judge allowed the defendant's motion for a required finding of not guilty on charges of assault and battery on a police officer, and filing a false motor vehicle license application.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting ... Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is 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’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, supra" (quotation omitted). Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83-84 (2013).
When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16 ; Latimore, 378 Mass. at 677-678. To sustain the defendant's conviction of disorderly conduct pursuant to G. L. c. 272, § 53, the Commonwealth had to prove three elements: (1) that the defendant involved himself in at least one of the following actions: (a) he engaged in fighting or threatening, (b) he engaged in violent or tumultuous behavior, or (c) he created a hazardous or physically offensive condition by an act that served no legitimate purpose; (2) that the defendant's actions were reasonably likely to affect the public; and (3) that the defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm. See Commonwealth v. Feigenbaum, 404 Mass. 471, 474-475 (1989) (describing Supreme Judicial Court's interpretation of "disorderly" in accordance with Model Penal Code).
Relative to the first element, the defendant claims the Commonwealth's evidence was insufficient as to all three methods of proof. However, because the various manners of establishing the first element are set out in the disjunctive, see Feigenbaum, 404 Mass. at 474, the Commonwealth needed only to show that the defendant had engaged in one of the three manners of prohibited conduct. Cf. Commonwealth v. Murphy, 415 Mass. 161, 164 (1993) (elements of G. L. c. 268A, § 2 [a ]). In other words, "[w]here [a] statute disjunctively prescribes several acts in a series of acts, all of which are alleged in the complaint, then the Commonwealth may prove the violation of the statute by proof of the performance by the defendant of any one of the said acts." Commonwealth v. Martin, 304 Mass. 320, 322 (1939).
The complaint in this case alleged all three manners of proof.
Here, the Commonwealth proceeded on the theory that the defendant had engaged in tumultuous behavior. " ‘Tumultuous’ conduct, ‘while perhaps not physically violent, may nevertheless be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance.’ " Commonwealth v. Sholley, 432 Mass. 721, 729 (2000), cert. denied, 532 U.S. 980 (2001), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 597 (1975). In the light most favorable to the Commonwealth, the jury were entitled to find that when the State trooper refused to accept what purported to be copies of auto parts receipts, the defendant behaved in an aggressive and agitated manner, he screamed obscenities at the trooper while standing less than a foot away, and he intentionally hit the paperwork in the trooper's hand, approximately "eight to ten times." See Commonwealth v. Mulero, 38 Mass. App. Ct. 963, 965 (1995). The trooper repeatedly told the defendant to leave, but the defendant disobeyed those orders. See Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009) (" ‘tumultuous behavior,’ for the purposes of § 53, includes the refusal to obey a police order"). The defendant's behavior caused Catherine Lampiasi, a nearby civil engineer who worked for the Department of Transportation (DOT), to be concerned for the trooper's safety, and to feel uncomfortable to the point she felt she had to leave the building.
Contrary to the defendant's suggestion, the his conviction did not rest on mere speech.
Relative to the second element, we conclude that the defendant's actions were reasonably likely to affect the public. " ‘Public’ is defined as ‘affecting or likely to affect persons in a place to which the public or a substantial group has access.’ " Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003), quoting Commonwealth v. A Juvenile, 368 Mass. at 586. This element may be satisfied even if the disturbance takes place in a secluded location, so long as members of the public are likely to be affected. See Mulvey, supra at 583.
Here, the events in question took place on June 21, 2018, at approximately 11 A.M. at the DOT garage. The garage is open to the public for vehicle salvage and title inspections (and, at that time, without the need for an appointment). On a typical day, vehicles will assemble in a queue outside the garage to await an inspection. Lampiasi was also present at the garage in the office area. When the trooper opened his office door, Lampiasi left her work area because of the disturbance. She became "distrac[ted] and uncomfortable." She was "going to pack up [her] things and leave." She looked shocked by the defendant's behavior; she was concerned and she "came to see if [the trooper] was okay." Even though at one later point the trooper asked Lampiasi to be a witness to what was transpiring, that request did not cause her to cease to be a member of the public. The evidence, when viewed in the light most favorable to the Commonwealth, was sufficient to satisfy the second element. See Commonwealth v. Collins, 36 Mass. App. Ct. 25, 33 (1994).
When the defendant first appeared at the garage on May 17, 2018, there were four such cars waiting outside.
Finally, the evidence was also sufficient on the third element of disorderly conduct. That is, the defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm. Here, at the very least, the jury were free to conclude that the defendant's conduct met the "reckless" standard. A defendant is reckless in this context when his behavior shows a conscious disregard for the probable outcome of his actions that he knew, or should have known, would create a substantial and unjustifiable risk of public inconvenience, annoyance, or alarm. See Feigenbaum, 404 Mass. at 474-475. Compare Commonwealth v. Welansky, 316 Mass. 383, 397-401 (1944).
Here, in the light most favorable to the Commonwealth, the defendant's conduct caused Lampiasi both annoyance and alarm. Although more was not required, see Commonwealth v. LePore, 40 Mass. App. Ct. 543, 548-549 (1996), it was also reasonable and possible for the jury to infer that the defendant's conduct caused an inconvenience for other customers who typically lined up for their own inspections, like those present on the defendant's first visit. See Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (inference drawn from circumstantial evidence "need only be reasonable and possible; it need not be necessary or inescapable"). Therefore, the evidence properly supported the defendant's conviction of disorderly conduct.
Judgment affirmed.