Commonwealth v. Ruben E. Holguin, Jr. ( 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-618
COMMONWEALTH
vs.
RUBEN E. HOLGUIN, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant was found guilty of breaking and entering in the
nighttime with intent to commit a misdemeanor, G. L. c. 266,
§ 16A. On appeal, the defendant claims the judge erred in
denying his motions for a required finding of not guilty because
the Commonwealth failed to prove that he did not act out of
necessity. We affirm.
Background. Around 1 A.M. on June 28, 2019, the defendant
climbed through an open window into a Lynn residence occupied by
the victim, her adult granddaughter, and her granddaughter's
nine year old son. The granddaughter was trying to fall asleep
when the defendant entered her room. He locked her bedroom door
and told her to stay quiet and call the police because he was
being chased and someone was trying to kill him. After the
granddaughter called 911 the defendant took her phone and texted
"Cacito," a contact he added to the phone. He also blocked the
bedroom door with chairs and told her to stay in the room
because someone was downstairs or outside. Meanwhile, the
victim, who was in an upstairs bedroom, had called 911 after she
was awakened by someone screaming and what she believed was the
sound of a chair being thrown inside her home. When police
arrived, the defendant came out of the granddaughter's room. A
police officer noted that the defendant was extremely sweaty,
had an overwhelming odor of alcohol, was not wearing shoes, and
had blood on his feet.
The defendant testified that he was socializing with a
friend and an acquaintance outside his mother's house in Lynn.1
He claimed that after a couple of hours together, his friend
drove to the back of the building, where the defendant noticed
"someone with a gun." He indicated that he was afraid that the
man was going to kill him, so he ran. He did not explain why he
did not go into his mother's apartment building, but testified
that his phone battery had died so he was unable to call the
police. The defendant claimed he knocked on several business
doors and tried to stop a passing motorist for help. After the
1 Although the defendant testified that he lived in Lawrence with
his girlfriend at the time, he considered his mother's house to
be his "home."
2
defendant ran one-quarter to one-half of one mile, he jumped
through an open window to escape "the person with a gun." The
defendant acknowledged that no shots were ever fired and he
never had an actual confrontation with the man he believed was
chasing him. At the time he entered the victim's home, he did
not know if he was being pursued because he never looked back as
he was running.
The defendant moved for a required finding of not guilty at
the close of the Commonwealth's case and renewed his motion at
the close of the evidence, arguing the defense of necessity.
The judge denied the motions and found the defendant guilty of
breaking and entering in the nighttime with intent to commit a
misdemeanor.2 The judge subsequently stated that she "did not
find credible a necessity defense, just so you're clear."
Discussion. The defendant contends the judge erred in
denying his motions for a required finding of not guilty because
the Commonwealth failed to disprove the defense of necessity. A
defendant properly raises a necessity defense only if he
presents "some evidence" on each of four underlying
requirements: "(1) a clear and imminent danger, not one which
is debatable or speculative; (2) [a reasonable expectation that
2 The defendant was originally charged with breaking and entering
in the nighttime with intent to commit a felony, G. L. c. 266,
§ 16. On appeal, the defendant does not challenge the
sufficiency of the evidence of the lesser included offense.
3
his or her action] will be effective as the direct cause of
abating the danger; (3) there is [no] legal alternative which
will be effective in abating the danger; and (4) the Legislature
has not acted to preclude the defense by a clear and deliberate
choice regarding the values at issue"3 (quotations and citations
omitted). Commonwealth v. Magadini, 474 Mass. 593, 597 (2016).
"In determining whether there has been sufficient evidence of
the foundational conditions to the necessity defense, 'all
reasonable inferences should be resolved in favor of the
defendant, and, no matter how incredible his testimony, that
testimony must be treated as true.'" Id. at 600, quoting
Commonwealth v. Pike, 428 Mass. 393, 395 (1998). "If the
defendant satisfies these foundational conditions, the burden is
on the Commonwealth to prove beyond a reasonable doubt the
absence of necessity" (quotation and citation omitted).
Magadini, supra at 597.
Here, the defendant failed to meet his initial burden of
producing evidence sufficient to raise the defense of necessity.
The person with the gun never threatened the defendant nor fired
the weapon. By his own admission, the defendant ran for at
least ten minutes without looking back, and in any event never
saw anyone chasing him. Thus, there was no evidence of a clear
3 The parties agree that the Legislature has not acted to
preclude the defense in the circumstances of this case.
4
and imminent danger. See Pike, 428 Mass. at 400-401 (no
necessity for defendant to steal police cruiser to escape if not
being attacked at time he took it); Commonwealth v. Hubbard, 69
Mass. App. Ct. 232, 238 (2007) (no imminent threat absent
pursuit after fight broken up). Nor are we persuaded that any
danger faced by the defendant was reasonably abated by him
breaking into a residence in the middle of the night. Assuming
the defendant's fears were rational, his actions served only to
bring potential danger to the unsuspecting victims who lived in
the home. Finally, the defendant had alternatives available
short of criminal breaking and entering, including accessing his
mother's apartment building, where he was staying that night.
See Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 697 (2007)
(juvenile who did not "exit[] the Jeep and run the short
distance to his house to seek help" had not pursued legal
alternatives to abate danger). In sum, we conclude that the
judge did not commit error by denying the defendant's motions
for a required finding where the defendant failed to show that
the harm sought to be avoided exceeded the harm resulting from
the crime committed. See Commonwealth v. Kendall, 451 Mass. 10,
13-14 (2008).
Even assuming the defendant met his burden and raised a
necessity defense, we are satisfied that there was no error in
the judge's denial of the defendant's motions for a required
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finding or in her guilty verdict. In a jury-waived trial, it is
presumed that the judge correctly instructs herself on the law.
See Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000). More
specifically, "[a] trial judge sitting without a jury is
presumed, absent contrary indication, to have correctly
instructed [herself] as to the manner in which evidence was to
be considered in [her] role as factfinder." Commonwealth v.
Batista, 53 Mass. App. Ct. 642, 648 (2002). Whether taking the
evidence in the light most favorable to the Commonwealth at the
required finding stage or as the ultimate factfinder, see
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the
trial judge is "not required to believe the defendant's trial
testimony." Batista, supra. Here, the judge exercised her
prerogative to assess the defendant's testimony and found his
necessity defense lacked credibility. We are satisfied that her
conclusion fell within her role as the finder of fact, and thus
was not error.
Judgment affirmed.
By the Court (Meade, Blake &
Brennan, JJ.4),
Clerk
Entered: June 23, 2023.
4 The panelists are listed in order of seniority.
6