Commonwealth v. Mark A. Tyler. ( 2023 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-477
COMMONWEALTH
vs.
MARK A. TYLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order dismissing a
District Court complaint charging the defendant with assault by
means of a dangerous weapon, in violation of G. L. c. 265, § 15B
(b). We reverse.
We review a judge's ruling to allow a motion to dismiss a
complaint for lack of probable cause de novo. Commonwealth v.
Newton N., 478 Mass. 747, 751 (2018). A motion to dismiss a
complaint for lack of probable cause "is decided from the four
corners of the complaint application, without evidentiary
hearing" (citation omitted). Id. Such a motion will be allowed
if the application does not establish probable cause.
Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). "To
establish probable cause, the complaint application must set
forth 'reasonably trustworthy information sufficient to warrant
a reasonable or prudent person in believing that the defendant
has committed the offense'" (citation omitted). Newton N.,
supra. "Probable cause requires 'more than mere suspicion,' but
'considerably less than proof beyond a reasonable doubt, so
evidence that is insufficient to support a guilty verdict might
be more than sufficient to establish probable cause'" (citations
omitted). Id. We assess the application in the light most
favorable to the Commonwealth. See id.; Commonwealth v. Geordi
G., 94 Mass. App. Ct. 82, 85 (2018).
"The elements of assault by means of a dangerous weapon are
that a defendant committed an assault, the defendant intended to
commit an assault, and the assault was committed by means of a
dangerous weapon." Commonwealth v. Buttimer, 482 Mass. 754, 767
(2019). An assault can be committed either by attempted or
immediately threatened battery. See Commonwealth v. Melton, 436
Mass. 291, 294 (2002). Here, the Commonwealth alleges an
immediately threatened battery. To prove threatened battery,
the Commonwealth must show that the defendant "engaged in
objectively menacing conduct with the intent to put the victim
in fear of immediate bodily harm" (quotation and citation
omitted). Commonwealth v. Lednum, 75 Mass. App. Ct. 722, 725
(2009). The defendant need only have the apparent ability to do
bodily harm or carry out his threat. See Buttimer, supra at
767-768.
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According to the police report submitted with the
application for complaint, the defendant was called to a family
gathering by his sister, who told him that she had been "jumped"
by her family members. Police saw the defendant's car "parked
in the middle of the road." The alleged victim, the defendant's
aunt, told police that when the defendant arrived, "he got out
of the car and pulled out a gun and put it on the hood of the
car." The defendant then asked her "who jumped my sister," and
said "what are you going to do now" and "you don't know me."
The defendant's aunt told police that she was "in fear for [her]
life" when she saw the defendant with a gun. According to the
defendant's uncle, after the gun was put on the hood of the car,
the defendant said, "Don't make me slap out of you." When the
uncle tried to take the gun to "safely keep it," the defendant
"grabbed [it] and put it inside his coat." The defendant's
girlfriend indicated that she and her young daughter accompanied
the defendant to the gathering, there was "a lot of yelling,
about [ten] to [fifteen] family members surrounded [the
defendant]" and he "pulled out his gun, while still in the
holster, [] put it on the hood of his car and stated that he was
not going to use it."
The judge dismissed the case on the basis that the
complaint did not establish probable cause that the defendant
committed assault by means of a dangerous weapon because "[t]he
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police report doesn't say that this holstered gun was pointed at
anyone, that the defendant made any statements threatening to
use the gun. And, in fact, the police report indicates, and
there's corroboration of it, that he says he didn't intend to
use it, which never happened."
We are persuaded by the Commonwealth's argument that the
defendant's words and conduct, when viewed in the light most
favorable to the Commonwealth, could reasonably be interpreted
as menacing and intending to place those around him, including
his aunt, in fear of imminent harm. See Commonwealth v.
Lavrinenko, 473 Mass. 42, 56 (2015); Commonwealth v. Mattei, 455
Mass. 840, 845-846 (2010). To establish probable cause for
assault by means of a dangerous weapon, there is no requirement
that the gun be pointed at someone. See Commonwealth v.
Lengsavat, 49 Mass App. Ct. 243, 244-245 (2000). Although
evidence that the defendant said he did not intend to use the
gun may well be material and even persuasive at trial, there is
no indication in the police report that the aunt (or anyone
other than the defendant's girlfriend) heard him say it.
Moreover, statements to police by the defendant's girlfriend
that the gun was holstered do not necessarily negate probable
cause of the defendant's intent or reasonable apprehension of
harm by the victim. See Commonwealth v. Arias, 78 Mass. App.
Ct. 429, 435 (2010) ("to indulge this argument, we would have to
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view the evidence in the light least favorable to the
Commonwealth, which, of course, we cannot do"). The defendant's
statements as reported by his aunt and uncle, while not overt
threats to use the gun, were confrontational. In context,
taking the gun out of his coat and placing it on the hood of his
car where all around him could see it could reasonably be
construed as a threatening gesture.
In sum, the facts alleged in the police report appended to
the application for complaint were sufficient to establish
probable cause to believe the defendant committed the crime of
assault by means of a dangerous weapon. The order allowing the
motion to dismiss is reversed, and the case is remanded for
further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Milkey, Singh &
Brennan, JJ.1),
Clerk
Entered: April 7, 2023.
1 The panelists are listed in order of seniority.
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