Commonwealth v. Camacho

Following a jury trial in the Superior Court, the defendant was convicted of one count each of breaking and entering in the nighttime with intent to commit a felony (breaking and entering at night), assault and battery, violating a G.L.c. 209A abuse prevention order (restraining order), intimidating a witness, and threatening to commit a crime. On appeal, the defendant's primary contention is that the evidence was insufficient to support the convictions of breaking and entering at night and of violating a restraining order. The defendant also claims that the trial judge gave an erroneous jury instruction regarding the intent element of the charge of breaking and entering at night, that the trial judge abused her discretion in allowing testimony concerning certain of the defendant's prior and subsequent bad acts, and finally, that the prosecutor misstated several facts in her closing argument. We affirm. 1. Background. Viewing the trial evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979). The defendant and the victim had been involved in a tumultuous, on-and-off dating relationship for several years. In December, 2009, the victim sought and obtained a restraining order against the defendant. The victim informed the defendant of the restraining order on numerous occasions, both in person and over the telephone.

Shortly after midnight on December 11, 2010, the victim was sleeping in her apartment along with her thirteen year old son, Luis . At approximately 1:00 A. M., the victim awoke to a knock on the apartment door. Believing it was one of her other sons, the victim cracked open the door. The victim immediately saw that it was the defendant and attempted to close the door. Despite her physical efforts and verbal protests, the defendant pushed his way through the door and into the apartment. Once inside the apartment, the defendant directed a tirade of insults and threats toward the victim. The defendant had an object tucked in the waistband of his pants that appeared to be a handgun. The defendant repeatedly gestured toward his waistband while screaming at the victim that he was going to kill her.

The defendant accused the victim of hosting another man in the apartment. The defendant searched the apartment for signs of another person but found none—except for Luis, who was sleeping at the time. The defendant also grabbed the victim's cellular telephone (cell phone) and scrolled through the recent call list looking for the telephone numbers of other men. The victim eventually wrestled her cell phone from the defendant and hid it in her bra. This prompted the defendant to bite the victim on her right breast.

The defendant remained in the apartment for the remainder of the night, for the most part not letting the victim out of his sight. At various points throughout the night, the defendant pushed, hit, and swore at the victim. It was not until 8:00 A.M. the following morning that the victim convinced the defendant to allow her and Luis to leave the apartment for the day. The victim secured her release only by promising the defendant that she would return home at the end of the day and that the two of them would figure out their relationship. Once the victim and Luis were outside the apartment, however, the victim handed her cell phone to Luis and instructed him to call the police. Luis did so, and the defendant was arrested shortly thereafter inside the apartment.

2. Sufficiency of the evidence. First, the defendant claims that the trial evidence was not sufficient to support the conviction for breaking and entering at night. Specifically, the defendant contends that the evidence was lacking as to the element of unlawful breaking and entering and the element of intent to commit a felony. We disagree.

As to unlawful breaking and entering, the victim testified that the defendant pushed his way past the apartment door despite the victim's verbal protests. The victim also testified that she used “all [her] strength” to physically prevent the defendant's forced entry. This evidence fully satisfies the sufficiency threshold, as “[t]here is no question that evidence of the use of force to gain entry into the apartment supports the element of breaking and entering.” Commonwealth v. Lee, 460 Mass. 64, 68 (2011). Moreover, as discussed infra, there was ample evidence to demonstrate that the defendant was aware of the outstanding restraining order and that his entry into the apartment was therefore unlawful.

The defendant's argument with regard to felonious intent likewise fails. The victim testified that, from the outset of the encounter, the defendant was attempting to enter the apartment against the victim's will. The victim also testified that the defendant was, all the while, leveling a barrage of threats at the victim—many of which were to the effect that the defendant was going to “kill” the victim. These threats were made credible not only by the defendant's agitated state, but also by the bulge at the defendant's waistband that appeared to be a concealed firearm. Many of the defendant's verbal threats were accompanied by physical gestures toward his waistband and the area of the bulge. In light of this evidence, the jury could have reasonably concluded that the defendant possessed felonious intent at the time of his forceful entry. Whether the defendant's intent might have related to a specifically charged felony—e.g., assault and battery in violation of a restraining order—matters not. Cf. Commonwealth v. Willard, 53 Mass.App.Ct. 650, 653 (2002) (“A burglary indictment need not specify the intended felony by name, as the identity of the felony is not an element of the crime and the jury can find an intent to commit an unspecified felony”).

In his final sufficiency argument, the defendant contends that the conviction for violation of a restraining order was unfounded due to a lack of evidence that the defendant was on notice of the restraining order or otherwise knew of the specific terms of the order. This is not so. The victim testified that she informed the defendant of the restraining order on multiple occasions, both in person and by telephone. The victim further testified that she specifically warned the defendant that, pursuant to the terms of the restraining order, “he was not supposed to be anywhere near me.” Viewed under the standard of Commonwealth v. Latimore, supra, the evidence was sufficient to establish the defendant's knowledge of the existence and terms of the restraining order. See Commonwealth v. Mendonca, 50 Mass.App.Ct. 684, 688 (2001).

3. The jury instruction. The defendant claims that the trial judge's jury instruction on breaking and entering at night—specifically with regard to the element of intent to commit a felony—was incorrect in two respects. We address each claim and conclude that the trial judge's instruction was proper.

First, the defendant claims that the trial judge erred by failing to provide a general definition for the term “felony.” We disagree. No such definition was necessary, as the judge specifically instructed the jury that the charge of assault and battery in violation of a restraining order is a felony as a matter of law. Compare Commonwealth v. Graham, 62 Mass.App.Ct. 642, 645 (2004) ( “The indictment is silent as to the nature of the felony, but the trial judge instructed the jury that ‘the felony that the Commonwealth is alleging in this indictment is that the defendant intended to commit a larceny in the dwelling’ ”).

The defendant also claims that the trial judge's instruction was ambiguous with regard to the moment at which the defendant was required to have formed the intent to commit a felony. The defendant focuses on the trial judge's use of the following language: “the prosecution must have proven that it was [the defendant's] specific intent to commit that crime once he got inside this particular dwelling” (emphasis added). The defendant argues that the phrase “once he got inside” suggests that the intent to commit a felony could have been formed after entering the apartment. We are not so convinced. We think this instruction made it sufficiently clear that the intent to commit a felony must have been formed at the time of entry; the phrase “once he got inside” merely clarifies that the intended felony was to be committed within the subject dwelling.

Whatever ambiguity possibly remained on this point was cured by the trial judge's contemporaneous instruction on the related charge of armed burglary, which made it absolutely clear that the intent to commit a felony must have been formed “at the time of breaking and entering.” “[L]egal sufficiency of the instructions to the jury is to be judged on the basis of the charge as a whole, and not on the basis of limited or isolated portions of it.” Commonwealth v.. Costello, 392 Mass. 393, 401 (1984), quoting from Commonwealth v. Redmond, 357 Mass. 333, 342 (1970). Viewing the instructions as a whole, we perceive no error.

4. Prior and subsequent bad acts. Next, the defendant claims that the trial judge abused her discretion in allowing testimony concerning certain of the defendant's prior and subsequent bad acts. Specifically, the judge allowed “general” testimony regarding the prior abusive nature of the defendant's relationship with the victim. The judge was careful to limit such testimony so as to exclude the details of any one specific act of abuse. The testimony was allowed only for the limited, and permissible, purpose of establishing the victim's state of mind, as well as the defendant's intent and state of mind toward the victim. See Commonwealth v. Barrett, 418 Mass. 788, 793–794 (1994). See also Mass. G. Evid. § 404(b) (2013). The judge also gave thorough limiting instructions, both during the testimony and in the final jury charge. “Juries are presumed to follow such limiting instructions.” Commonwealth v. Johnson, 45 Mass.App.Ct. 473, 479 (1998). There was no abuse of discretion, and the defendant was not unfairly prejudiced.

The same can be said with regard to the testimony concerning the defendant's subsequent acts of sending the letters to the victim. The evidence was admitted only for the limited purpose of reinforcing the defendant's intent and state of mind, which, according to the Commonwealth's theory, was to maintain continuing contact with, and control over the victim, regardless of the existence of a restraining order. The testimony was framed in general terms and referred only to the fact that the letters were sent. There was no error.

5. The prosecutor's closing argument. The defendant claims that the prosecutor made six distinct misstatements during her closing argument. Five of these statements were not objected to at trial. “With respect to each challenge, we consider the prosecutor's remarks in the context of his entire argument, the evidence at trial, and the judge's instructions to the jury.” Commonwealth v. Christian, 430 Mass. 552, 564 (2000). After conducting such a review of the five alleged misstatements that were not objected to, we conclude that each was based on fair inferences from the trial evidence. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). In any event, whatever prejudice may have resulted did not give rise to a substantial risk of a miscarriage of justice.

Finally, we turn to the sixth alleged misstatement, which was objected to at trial. The prosecutor stated that the defendant “basically conceded” that he was physically and emotionally abusive toward the victim. The statement was indeed erroneous, as the defendant made no such concession. The trial judge sustained the defendant's objection and immediately admonished the prosecutor for straying from the trial evidence. The judge also reminded the jury on three separate occasions that the closing arguments are not evidence and should not be considered as such. “Extraevidentiary remarks in closing arguments are normally adequately neutralized by a timely curative instruction and a general reminder that arguments of counsel are not evidence.” Commonwealth v. O'Connell, 432 Mass. 657, 659 n. 3 (2000), quoting from Commonwealth v. Giguere, 420 Mass. 226, 234 (1995). Here, the judge's actions mitigated any possible prejudice caused by the prosecutor's single, fleeting statement.

Judgments affirmed.
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