Commonwealth v. Oswaldo O., a juvenile ( 2018 )

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17-P-849 Appeals Court
COMMONWEALTH vs. OSWALDO O.,1 a juvenile.
No. 17-P-849.
Suffolk. September 6, 2018. - December 10, 2018.
Present: Blake, Wendlandt, & McDonough, JJ.
Assault by Means of a Dangerous Weapon. Moot Question.
Juvenile Court, Delinquent child. Practice, Civil, Moot
case. Practice, Criminal, Juvenile delinquency proceeding.
Intent. Due Process of Law, Juvenile delinquency
proceeding, Notice.
Complaint received and sworn to in the Suffolk County
Division of the Juvenile Court Department on May 25, 2016.
The case was heard by Stephen M. Limon, J.
Eva G. Jellison for the juvenile.
Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
WENDLANDT, J. This case involves the application of the
doctrine of transferred intent to the crime of assault, which
consists of two forms: attempted battery and immediately
1 A pseudonym.
2
threatened battery. In Commonwealth v. Melton, 436 Mass. 291
(2002), the Supreme Judicial Court applied the doctrine in
connection with the intent element of the attempted battery form
of assault. We address now whether the doctrine applies to the
intent element of the immediately threatened battery form of
assault. In particular, following a bench trial, a Juvenile
Court judge adjudicated the juvenile delinquent on one count of
assault by means of a dangerous weapon, G. L. c. 265, § 15B.2 On
appeal, the juvenile contends the judge found only that he
intended to place one specific victim3 in fear (as to whom there
was no charge) and improperly relied on the doctrine of
transferred intent to satisfy the intent element of the
immediately threatened battery form of assault with regard to
two different victims.4 Concluding that the doctrine of
transferred intent applies to the immediately threatened battery
form of assault, we affirm.
2 The judge allowed the juvenile's motion for a directed
finding of not delinquent on a second count, charging a
municipal ordinance violation for carrying a dangerous weapon.
3 We shall refer to this victim as "E"; his surname was not
in the record.
4 Although the trial judge's findings discuss the doctrine
of transferred intent with respect to two different victims
(B.H. and A.R.), the delinquency complaint charged the juvenile
with only one count of assault by means of a dangerous weapon,
against B.H. This discrepancy does not alter our analysis.
3
Background. The judge's underlying factual findings are
not disputed. On May 24, 2016, three high school students
(B.H., A.R.,5 and B.H.'s friend, E) were having lunch at a
restaurant near their high school in Chelsea when the juvenile
approached them. The juvenile was wearing a Tennessee Titans
hat, while E was wearing a Chicago Bulls hat; the juvenile asked
E to which gang he belonged and told E to "take off" his hat.
B.H. testified that he understood the Bulls hat to signify
affiliation with the MS gang. The juvenile opened his backpack,
displaying a knife. A.R. saw the knife. The juvenile left the
restaurant, but remained immediately outside the restaurant with
four companions.
After finishing lunch, B.H., A.R., and E left the
restaurant together and entered the park across the street,
heading back toward their high school. The juvenile followed
them on his bicycle, remaining approximately three meters behind
the boys. At some point, however, the juvenile passed the boys,
arrived at a small staircase in the park, and dismounted his
bicycle. As the boys approached the stairs, the juvenile
stopped them. He asked A.R. whether he knew the meaning of the
Bulls hat. A.R. replied that he did not. The juvenile then
instructed E to take off the Bulls hat, if he did not want any
5 The judge referred to these witnesses by their first
names; we refer to them by their initials.
4
trouble. Following the threat, the juvenile moved behind B.H.,
A.R., and E, and pulled his backpack from his back to his chest.
The juvenile unzipped the backpack and reached inside for the
knife. A.R. again saw the knife, and B.H. covered his hands
with his sleeves to shield himself from a possible weapon. B.H.
and A.R. wrestled the backpack away from the juvenile and ran to
the high school.
Procedural history. The juvenile was adjudicated
delinquent on the charge of assaulting B.H. by means of a
dangerous weapon.6 At defense counsel's request, the judge
entered a continuance without a finding until the juvenile's
eighteenth birthday.7 Under the terms of the continuance, if the
juvenile successfully completed the probationary period, the
matter would be dismissed, and the juvenile would not have a
record of delinquency as a result of the case. The juvenile
filed a timely notice of appeal. Approximately half way through
his probationary period, and while his appeal was pending, the
juvenile filed a motion to terminate probation, which was
allowed. Thereafter, the case was dismissed.
6 He was not charged with assaulting E or A.R.
7 See Commonwealth v. Magnus M., 461 Mass. 459, 463-464
(2012) (determining that, in juvenile delinquency proceedings,
G. L. c. 119, § 58, permits Juvenile Court judge to continue
case without a finding notwithstanding adjudication of
delinquency).
5
The Commonwealth moved to dismiss the appeal as moot in
view of the continuance without a finding and the dismissal of
the underlying case. A single justice of this court denied the
motion.
Discussion. 1. Mootness. As a preliminary matter, the
Commonwealth contends in its brief (as it did in its motion to
dismiss) that the juvenile's appeal is moot because the case was
dismissed after he agreed to the continuance without a finding.
In response, the juvenile asserts that his appeal is not moot
because he is currently applying for a change of immigration
status, and the adjudication of delinquency and continuance
without a finding could jeopardize his application. The
juvenile cites several immigration decisions in which juvenile
delinquency and gang affiliation were considered in connection
with the denial of a request for a change in immigration status8
and, thus, he has shown that "there remain genuine and serious
collateral consequences" to the judge's adjudication, and the
case is not moot. Commonwealth v. Villalobos, 437 Mass. 797,
800 (2002) (quotation omitted). See id. at 799-800 (declining
to dismiss as moot reported question concerning adequacy of
alien warnings where defendant faced unfavorable immigration
consequences from admission to sufficient facts, notwithstanding
8 The Commonwealth provides no substantive response.
6
dismissal of charge after successful completion of continuance
without a finding period). See also Commonwealth v. Argueta, 73
Mass. App. Ct. 564, 566 (2009) (holding that appeal from order
denying motion for new trial where defendant received
continuance without finding and charges were subsequently
dismissed not moot because "the defendant has a continuing
personal stake in the outcome of this litigation").
Accordingly, we address the merits of the juvenile's arguments
on appeal.
2. Assault by means of a dangerous weapon. An assault may
be perpetrated in either of two ways: an attempted battery9 or
an immediately threatened battery. See Commonwealth v.
Chambers, 57 Mass. App. Ct. 47, 48 (2003). Acknowledging that
the Supreme Judicial Court in Melton applied the doctrine of
transferred intent to the attempted battery form of assault, the
juvenile asserts that the doctrine should not be applied to the
immediately threatened battery form of assault -- the form of
assault at issue in the present case. This form of assault
requires the Commonwealth to prove that "the defendant
intentionally engaged in menacing conduct that reasonably caused
9 "Under the attempted battery theory, the Commonwealth must
prove that the defendant [i] intended to commit a battery,
[ii] took some overt step toward accomplishing that intended
battery, and [iii] came reasonably close to doing so." Melton,
436 Mass. at 295. The Commonwealth does not contend that the
juvenile committed this form of assault.
7
the victim to fear an imminent battery."10 Melton, 436 Mass. at
295 n.4. It is a specific intent crime, which requires the
Commonwealth to show that the defendant intended to put the
victim in fear. Commonwealth v. Musgrave, 38 Mass. App. Ct.
519, 523-525 (1995), S.C., 421 Mass. 610 (1996). The juvenile
contends that the judge found that he intended only to put E in
fear, and impermissibly relied on the doctrine of transferred
intent in finding that he also intended to put B.H. and A.R. in
fear.
a. Direct intent. We begin by examining the premise
underlying the juvenile's argument -- namely, that the judge
found that he intended only to place E in fear and relied solely
on the doctrine of transferred intent with regard to B.H. and
A.R. We agree that the judge appeared to apply the doctrine of
transferred intent, as discussed infra. However, the judge also
stated that "[i]ntent may be inferred on the basis of an overt
act, which puts another person in fear, and that fear is
reasonable, irrespective of whether the defendant actually
intended bodily harm." Continuing, he stated that "both [A.R.]
and [B.H.] were in fear when [the juvenile] unzipped his
The crime of assault by means of a dangerous weapon adds
10
one additional element -- namely, that the assault was
perpetrated by means of a dangerous weapon. Melton, 436 Mass.
at 294. The juvenile does not contest that the knife
constitutes a dangerous weapon.
8
backpack and reached for a knife. That fear was reasonable
considering the fact that they were with E[] when [the juvenile]
had made a similar demand of E[ to remove his hat], revealing a
knife to him inside [the restaurant] just minutes before."
Thus, it appears that the judge found that the juvenile intended
to cause fear in B.H. and A.R. based on the juvenile's overt
acts of unzipping his backpack and reaching for the knife.
Moreover, the evidence was sufficient to support such a
finding, contrary to the juvenile's contention on appeal. The
juvenile approached E while he was sitting together with B.H.
and A.R. in the restaurant. The juvenile showed his knife to E
and, in doing so, also to A.R. He proceeded to follow not just
E, but also A.R. and B.H. in the park. At the stairs, he
stopped all of them, asked whether A.R. understood the meaning
of the Bulls hat and threatened that E should remove the hat to
avoid "trouble." He moved behind B.H., A.R., and E as he pulled
the backpack to his chest, opened it, and reached for the knife,
which he had previously displayed in the restaurant. From these
facts, a trier of fact could rationally find that the juvenile's
intended victim was not only E (who was wearing the Bulls hat),
but also E's companions. See, e.g., Melton, 436 Mass. at 300
(noting that defendant who waved gun in direction of motor
vehicle with four passengers would be guilty of four assaults by
means of dangerous weapon "because his intentionally menacing
9
conduct would have been directed at and instilled fear in four
people," despite fact that only one of the four individuals was
intended victim); Musgrave, 38 Mass. App. Ct. at 524 (explaining
that "in most cases intentionally menacing conduct gives rise to
a reasonable inference of intent to cause apprehension").
b. Transferred intent. Nevertheless, we recognize that
the judge also stated that "[a] defendant's intent may extend to
others beyond the actual intended victim, including a victim who
happened to suffer along with the intended victim," citing
Melton, 436 Mass. at 297-298. He then found that "E[] was the
intended victim," but further found that "[A.R.] and [B.H.] also
were victimized by [the juvenile's] actions, given their
immediate presence with E[] and their reaction to [the
juvenile's] words and actions." Accordingly, the judge may have
relied on the doctrine of transferred intent, and we address the
juvenile's arguments regarding the propriety of its application
in the context of the immediately threatened battery form of
assault.
Our analysis is guided by the Supreme Judicial Court's
decision in Melton. In that case, the defendant shot one bullet
into a car with four passengers, striking none of them. Melton,
436 Mass. at 293. The jury convicted the defendant of four
counts of assault by means of a dangerous weapon on the basis of
the attempted battery form of assault. Id. at 294-295. The
10
defendant argued that he could not have intended to commit a
battery11 as to each of the four victims because he had shot just
one bullet. Id. at 295. Recognizing that only one of the
passengers was the intended victim, the court affirmed each of
the convictions, relying on the doctrine of transferred intent.
Id. at 298. In doing so, it rejected many of the same arguments
raised by the juvenile in the present case.
In particular, the juvenile objects to the application of
the doctrine of transferred intent to his case because,
according to the juvenile, it is a "novel" theory of law that
has not been applied previously to the immediately threatened
battery form of assault. Transferred intent is not novel. To
the contrary, as the Supreme Judicial Court acknowledged in
Melton, "We have never required that a defendant's intent be
directed at the precise victim of the crime. Rather, we have
long recognized the concept of 'transferred intent' in
situations where the defendant's conduct harms a person other
than the intended victim." Melton, 436 Mass. at 296. Indeed,
in Melton, the court both announced the applicability of the
doctrine to the attempted battery form of assault and applied it
to the defendant's case, affirming his convictions. Id. at 298-
300.
Intent to commit a battery is an element of the attempted
11
battery form of assault. See note 9, supra.
11
Further, while the court in Melton applied the doctrine to
the attempted battery form of assault, it implicitly recognized
that the doctrine applied equally to the immediately threatened
battery form. Id. at 299-300. Specifically, the court stated
that, had the defendant in that case merely waved his gun at the
four passengers, he would have committed an immediately
threatened battery form of assault against each of the four even
though the intended victim was only one of them. Id. "The
criminal law is designed primarily to preserve the public
peace." Chambers, 57 Mass. App. Ct. at 49, quoting Commonwealth
v. Slaney, 345 Mass. 135, 138-139 (1962). It would make little
sense to allow the perpetrator of an assault against one victim
to escape conviction with regard to the victim's immediate
companions, who, because of proximity to the intended victim,
also feared an immediate battery.
Next, the juvenile asserts that the doctrine of transferred
intent violates due process by relieving the Commonwealth of its
burden to show each element of the crime beyond a reasonable
doubt. This same argument was rejected in Melton. The court
explained, "[T]he requisite mens rea must be shown, but it does
not need to be shown separately or independently for each
victim. Rather, once established as to any victim, it satisfies
that element with respect to all other victims, even if those
victims are unintended or even unknown to the defendant."
12
Melton, 436 Mass. at 298. See id. at 296-297 (listing other
jurisdictions applying principle of transferred intent to
"satisfy the element of intent when a defendant harms both the
intended victim and one or more additional but unintended
victims").
The juvenile also claims that the doctrine of transferred
intent violates due process because it provides insufficient
notice of the proscribed conduct, asserting that the doctrine
would allow the juvenile to be convicted of assaulting an
"unknowable number" of bystanders in the park who might have
heard his threat to E and thus have feared being subject to
unintentional violence. Whatever the outer limits of the
doctrine may be, there is no due process violation here. The
juvenile approached the three high school students at the
restaurant, followed each of them through the park, stopped them
each at the stairs, and then placed himself behind each of them
as he reached for his knife. He was not prosecuted because he
instilled fear in an unknowable bystander in the park who
happened to overhear his threats, but instead because he
directly placed in fear B.H. and A.R. -- E's immediate
companions in the restaurant and park that afternoon.12 Holding
12To the extent that we do not address expressly the
defendant's other contentions, they "have not been overlooked.
We find nothing in them that requires discussion." Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
13
the juvenile responsible for the fear he instilled in B.H. and
A.R. no more offends due process than the potential outcome
acknowledged in Melton -- namely, that if the defendant had
merely waved his gun, rather than firing it at the automobile,
he could have been held responsible for the fear thereby
instilled in the four passengers despite the fact that his
immediately intended target was only one of them.
Adjudication of delinquency
affirmed.