Commonwealth v. Kevin A.cummings. ( 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
21-P-714
COMMONWEALTH
vs.
KEVIN A.CUMMINGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, the defendant was convicted
of one count of threatening to commit a crime under G. L.
c. 275, § 2.1 On appeal, the defendant contends that the judge
erred in denying his motion for a required finding of not guilty
because the Commonwealth failed to establish his identity as the
perpetrator as well as the other essential elements of the
offense. We affirm.
Discussion. We review the denial of a defendant's motion
for a required finding of not guilty to determine "whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
1 The defendant was also charged with assault and battery on a
household member, subsequent offense, under G. L. c. 265, § 13M
(b). This charge was dismissed for failure to prosecute.
essential elements of the crime beyond a reasonable doubt."2
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To sustain a
conviction for threatening to commit a crime under G. L. c. 275,
§ 2, the Commonwealth was required to prove beyond a reasonable
doubt that the defendant expressed an intention to inflict a
crime on another person and had the "ability to do so in
circumstances that would justify apprehension on the part of the
recipient of the threat." See Commonwealth v. Haverhill, 459
Mass. 422, 426-427 (2011), quoting Commonwealth v. Sholley, 432
Mass. 721, 724-725 (2000).
Here, the Commonwealth presented evidence that police were
dispatched to a specific apartment within a building in Saugus.
Three officers responded to the fourth floor apartment where the
loud screaming of a male voice and a female voice could be heard
coming from within the apartment. The male voice said, "I’ll
2 "Because the defendant moved at the close of the Commonwealth's
case for a required finding of not guilty, we assess the
evidence as it stood at that point." Commonwealth v. Sanders,
101 Mass. App. Ct. 503, 508 n.7 (2022). While the defendant
renewed his motion at the close of all the evidence, the
defendant's brief is couched in terms of the insufficiency of
the Commonwealth's evidence. In any event, viewing the evidence
at the close of all the evidence in the light most favorable to
the Commonwealth, the defense's theory at trial -- that the
defendant had a seizure and did not recall the incident -- did
not deteriorate the Commonwealth's position as to proof after it
closed its case. See Commonwealth v. Bacigalupo, 455 Mass. 485,
490 (2009).
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fucking kill you[,] you cunt," and the female voice responded
something back. The officers then knocked and announced their
presence. A short time later, thirty to forty-five seconds, the
defendant opened the apartment door. The officers secured the
defendant and cleared the apartment, where they found a woman
remaining and no one else. Thus, the facts allowed the judge to
infer that the defendant threatened to kill the woman.
The defendant contends nevertheless that the evidence was
insufficient to establish that he was the one who uttered the
statement constituting the threat, because there was no voice
identification procedure matching his voice to the one heard by
the police making the threatening statement. But no such
procedure was necessary where the officers could hear that the
statement was made by a male voice from within the apartment and
the defendant was the only man who emerged from the apartment
seconds after the threat was made. The defendant’s answer to
this commonsense deduction is that the woman in the apartment
could have possessed the male-sounding voice that the police
heard making the threat.3 In the light most favorable to the
Commonwealth, however, the facts lead to the reasonable
3 Had there been any evidence that the woman had a male-sounding
voice, the defendant was free to explore this on cross-
examination but did not. Indeed, the prospect that the woman
could have been the one making the threat was not raised at
trial.
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inference that the defendant made the threat. See Davis v.
Commonwealth, 491 Mass. 1011, 1013 (2023) (where identity of
assailant was based on circumstantial evidence, all reasonable
inferences were to be drawn in favor of commonwealth on review).
The defendant next contends that, even if he had made the
statement, the Commonwealth failed to establish that the
defendant expressed an intention to commit a crime against
another person. He argues that the statement "I'll fucking kill
you" could have been an expression of frustration, directed at a
television that failed to work. However, the loud back and
forth yelling which preceded the threat tends to negate the
theory that the threat was an expression of exasperation at an
inanimate object. Moreover, that the threat was followed up
with "you cunt," leads to a reasonable inference that the threat
was directed at the woman. See Commonwealth v. Lao, 443 Mass.
770, 779 (2005) (inferences drawn by fact finder "need only be
reasonable and possible and need not be necessary or
inescapable" [citation omitted]).
Finally, the defendant contends that there were no facts
presented to establish reasonable apprehension of fear on the
part of the woman. Although the Commonwealth need not show that
the recipient of a threat was actually placed in fear, it must
establish that "the threat by its content in the circumstances
was such as would cause the target of the threat to fear that
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the threatened crime or injury might be inflicted."
Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). The
standard is objective. See Commonwealth v. Kerns, 449 Mass.
641, 653 n.18 (2007). Here, the police were dispatched to the
apartment, heard loud back and forth yelling from within the
apartment, culminating in a threat to kill, in circumstances
where the defendant and the woman were the only ones within the
confines of the apartment. These circumstances were sufficient
from which a fact finder could conclude a reasonable
apprehension of fear. See Sholley, 432 Mass. at 725-726 (taking
into consideration "demeanor" and "tone" where threat was made
in context of "screaming" and "yelling").
The motion for required finding of not guilty was properly
denied.
Judgment affirmed.
By the Court (Vuono,
Sullivan & Singh, JJ.4),
Clerk
Entered: April 25, 2023.
4 The panelists are listed in order of seniority.
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