Opinion
19-P-705
12-07-2020
COMMONWEALTH v. NATHAN JENSEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his conviction, after a Superior Court jury trial, of assault and battery by means of a dangerous weapon causing serious bodily injury. On appeal, the defendant contends that (1) the evidence was insufficient to disprove his claim of self-defense and (2) the judge abused her discretion in admitting, as evidence of consciousness of guilt, testimony that he intimidated a witness. Seeing no error or abuse of discretion, we affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On the evening of May 20, 2017, the victim, his fiancée, and another man and woman went to several bars and became intoxicated. While walking home, the victim and the other man raced out ahead of the women.
At this time, the defendant confronted the two women with a BB gun and accused the group of having tampered with a nearby car. The victim then returned and, using an expletive, told the defendant to leave. The victim made no hostile gestures toward the defendant, and none of the members of the group did anything to prevent the defendant from leaving.
As the victim approached, the defendant specifically accused him of being the one who tampered with the car. Without actually knowing what the defendant was referring to, the victim admitted, "yeah, it was me, go home." The defendant then shot the victim "point-blank" in the face with the BB gun. The victim was seriously injured.
One of the defendant's neighbors agreed to testify as a witness at the trial and met with a police officer and the trial prosecutor in early May of 2018. After that meeting, the witness saw the defendant waiting in front of her home three days in a row. On these occasions, the defendant stared at the witness, stood in her path in the middle of the sidewalk, and laughed in her face. This made the witness feel "intimidated."
Discussion. 1. Self-defense. To satisfy its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, the Commonwealth must establish that at least one of the following factors did not exist: "(1) the defendant had a reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; [or] (3) 'the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.'" Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). We review to 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 Jackson v. Virginia, 443 U.S. 307, 319 (1979).
First, the defendant argues that the victim placed him in reasonable fear of immediate physical harm. Even if we assume that the evidence established that the defendant had a subjective fear of harm, the question remains whether the fear was reasonable. See Commonwealth v. Pike, 428 Mass. 393, 396 (1998). Although the jury could have credited the defendant's testimony to that effect, they were also free to credit the Commonwealth's evidence -- even if provided by witnesses who were intoxicated at the time of the incident -- that the victim approached the defendant unarmed and in a nonthreatening manner, so that any such fear on the defendant's part was not reasonable. See Commonwealth v. Platt, 440 Mass. 396, 404 (2003) (determining credibility of witnesses is for jury).
The parties dispute whether firing the BB gun under these circumstances should be considered deadly force or nondeadly force. This question would bear on what level of harm the defendant was required to reasonably fear before resorting to such force. See Pike, 428 Mass. at 395. However, the jury could have found that the victim did nothing to cause the defendant any reasonable fear of harm, and so there was no justification for the defendant to use any level of force against the victim. Therefore, we need not decide whether use of a BB gun is deadly or nondeadly force.
The defendant also argues that the Commonwealth failed to disprove that he attempted to avoid combat or that the force he used was proportionate to the level of harm he anticipated. As above, the jury could have credited the Commonwealth's evidence that the defendant did not retreat despite being free to do so. The jury likewise could have credited the Commonwealth's evidence that the defendant used a dangerous weapon despite never having been threatened with the use of force.
The defendant also cites the principle that a finding beyond a reasonable doubt cannot be based on evidence "tend[ing] equally to sustain either of two inconsistent propositions." Commonwealth v. Eramo, 377 Mass. 912, 913 (1979), quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962). However, the defendant does not explain how that principle applies to these facts. Therefore, we need not discuss it further.
2. Bad acts evidence. Before trial, the defendant filed a motion in limine to preclude evidence that he intimidated a witness, his neighbor. The judge ruled the evidence admissible on the basis that it supported the defendant's consciousness of guilt. The defendant argues that the judge abused her discretion in doing so. "We review [a trial judge's] evidentiary decision under the abuse of discretion standard." Commonwealth v. Polk, 462 Mass. 23, 32 (2012).
Evidence of other crimes or bad acts is not admissible to show a propensity to commit similar acts. Mass. G. Evid. § 404(b)(1) (2020). However, such evidence is admissible to prove other matters, such as consciousness of guilt. See Commonwealth v. Burke, 414 Mass. 252, 260 (1993) ("evidence tending to show consciousness of guilt will not be rendered inadmissible simply because it may reveal to the jury that the defendant has committed another offense").
The defendant argues that here the evidence was inadmissible because he had not been convicted of witness intimidation, and the parties dispute whether the acts described fit the elements of that crime. This argument misses the point. It is sufficient that the evidence tended to show consciousness of guilt. The defendant cites no authority suggesting that acts that may be criminal must actually be charged or result in a conviction before a witness may testify to them.
This was not a proceeding to punish the defendant for witness intimidation, which would have required instructions on the elements of that crime, proof of those elements beyond a reasonable doubt, and the other safeguards of a criminal trial.
The defendant also argues that the evidence of witness intimidation was not probative of the assault and battery charge and thus was not relevant. Further, he argues that admitting evidence of witness intimidation without charging him with that offense created a substantial risk of unfair prejudice. Although the acts constituting intimidation were not themselves the subject of a charge submitted to the jury, the evidence of intimidation was offered to show consciousness of guilt regarding the defendant's charged conduct, and, as the judge properly instructed, the jury could consider whether evidence of consciousness of guilt was suggestive of guilt. Especially in light of this limiting instruction, the judge was within her discretion to conclude that the risk of unfair prejudice did not outweigh the evidence's probative value.
Judgment affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 7, 2020.