Commonwealth v. Matthew B. Vaillette. ( 2024 )

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
23-P-1042
COMMONWEALTH
vs.
MATTHEW B. VAILLETTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, during
which the judge denied the defendant's motion for a required
finding of not guilty, the defendant was convicted of disorderly
conduct, G. L. c. 272, § 53. We affirm.
Background.1 On December 8, 2022, a Leominster resident
(resident) was tending to his Frosty the Snowman Christmas
decoration in his front yard. The defendant, a complete
stranger, was walking down the opposite side of a public street
and screamed "fucking racist" at the resident three to four
times. The resident told the defendant to move along. Instead,
1The facts are stated in the light most favorable to the
Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979).
the defendant stopped and turned towards the resident, who told
the defendant not to come near him or on his property. The
defendant crossed the street and stepped onto his driveway. The
resident warned that if the defendant took a step onto his
property, he would release his dog. The defendant "kind of
laughed" and giggled and walked closer to him, though no closer
than twenty-five feet. The resident testified that "[t]he
second his foot hit my driveway," his dog let out "a lion's
roar," causing the defendant to "beat feet" down the road. The
resident felt threatened and described the interaction as
"[a]ggravating." The entire interaction was approximately six
to seven minutes.
The resident saw the defendant stop at a neighbor's house
about one hundred to one hundred and fifty feet away and heard
him yell the same thing he had yelled at the resident. The home
belonged to an older couple and the resident knew they were
home. Concerned for his neighbors, he called the police.
Nobody else was around.
Officer Shane Crawford spoke with the resident, and then
located the defendant on a nearby street. After a discussion in
which the defendant told the officer that the resident
threatened him, the officer informed the defendant that he would
be summonsed for disorderly conduct.
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Discussion. A person engages in disorderly conduct if the
person "with purpose to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, engaged in
fighting or threatening, or in violent or tumultuous behavior or
created a hazardous or physically offensive condition by any act
which serves no legitimate purpose of the actor" (quotation and
citation omitted). Commonwealth v. Accime, 476 Mass. 469, 472-
473 (2017).
1. Prohibited behavior. Fighting or threatening conduct
"involves the use of physical force or violence or any threat to
use such force or violence if that threat is objectively
possible of immediate execution." Commonwealth v. A Juvenile,
368 Mass. 580, 597 (1975). "Vulgar, profane, offensive or
abusive speech is not, without more, subject to criminal
sanction." Id. at 589. However, threatening behavior can
consist of, as it did here, "a comment or act coupled with an
aggressive move toward the victim." Commonwealth v. Cahill, 64
Mass. App. Ct. 911, 911 (2005), rev'd on other grounds, 446
Mass. 778 (2006). When faced with the defendant screaming
"fucking racist" multiple times, and then stepping onto the
resident's driveway after being requested to leave, a trier of
fact could reasonably find that the evidence supported an
apprehensive response by the resident, and thus could properly
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be understood as a threat. See Commonwealth v. Chou, 433 Mass.
229, 234 (2001).2
2. Public alarm or annoyance. The defendant argues that
the evidence was insufficient to show that he caused any public
alarm where nobody else was nearby.
The Commonwealth need only show that the defendant's
conduct "was likely to have had an impact upon persons in an
area accessible to the public." Commonwealth v. Mulvey, 57
Mass. App. Ct. 579, 583 (2003). "Public is defined as affecting
or likely to affect persons in a place to which the public or a
substantial group has access" (quotation and citation omitted).
Id. at 582. "The public element of the offense is readily met
in cases where the proscribed conduct takes place on public
streets." Id. Here, the defendant's conduct took place on a
public street and affected the resident and potentially the
elderly neighbors.
3. Intent. The Commonwealth must establish that the
defendant either intended to cause public inconvenience,
2 As threatening behavior is sufficient to satisfy the first
prong of the crime of disorderly conduct, we need not address
whether the behavior was tumultuous. Additionally, where, as
here, the Commonwealth seeks to rest its case primarily on proof
that the defendant engaged in tumultuous or threatening
behavior, it need not prove that the defendant's conduct served
no legitimate purpose. Commonwealth v. Sinai, 47 Mass. App. Ct.
544, 548 (1999).
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annoyance or alarm, or recklessly created a risk of public
inconvenience, annoyance or alarm. Accime, 476 Mass. at 472-
473. Recklessness in this context means "conscious disregard of
a substantial and unjustifiable risk of public nuisance." Id.
at 473, quoting Model Penal Code § 250.2 comment 2 at 328-329
(Official Draft and Revised Comments 1980). "A person's
knowledge or intent is a matter of fact, which is often not
susceptible of proof by direct evidence, so resort is frequently
made to proof by inference from all the facts and circumstances
developed at the trial." Commonwealth v. Casale, 381 Mass. 167,
173 (1980). When the defendant ignored the requests of the
resident to move along, and instead approached him and stepped
on his driveway and yelled and screamed at a second home such
that the resident could hear him from one hundred feet away, a
trier of fact could reasonably infer that the defendant
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recklessly created a risk of public inconvenience, annoyance, or
alarm.
Judgment affirmed.
By the Court (Henry, Grant &
D'Angelo, JJ.3),
Clerk
Entered: August 30, 2024.
3 The panelists are listed in order of seniority.
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