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
24-P-1377
COMMONWEALTH
vs.
ERIC VILA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a Superior Court jury
trial of witness intimidation, G. L. c. 268, § 13B; vandalizing
property, G. L. c. 266, § 126A; and breaking and entering into a
building in the nighttime with the intent to commit a felony,
G. L. c. 266, § 16.1 On appeal, the defendant argues that the
evidence was insufficient as to the breaking and entering charge
and that the witness intimidation conviction must be vacated
because the Commonwealth presented alternative factual theories
of the commission of the offense, a specific unanimity
1The defendant was acquitted of two other charges and, after the jury reported that it was deadlocked on the remaining charges, the Commonwealth nol prossed those remaining charges. instruction was not provided, and the jury did not unanimously
agree on at least two of the factual theories. We affirm.
Background. We summarize the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Lopez, 484
Mass. 211, 211 (2020). The victim and the defendant were in a
relationship for three to four years but were no longer dating
by February 2023. On February 1, 2023, the victim reported to
the police that the defendant had damaged the door frame to the
front door of her apartment and had damaged the door to her
garage when the defendant took her car from the garage to the
apartment parking lot without her permission.
On August 4, 2023, a trial was scheduled regarding the
February incident. Around 12:45 A.M. on the morning of the
trial, the defendant approached the victim while she was in her
car outside her apartment building. The defendant pleaded to
talk with her to "fix things" and "work something out." The
defendant forced his way into the driver's seat of the car; the
victim, who had been in the driver's seat, crawled to the
passenger side and got out of the vehicle. After the victim
told the defendant to "go home" and "leave it alone," the
defendant got out of the car, followed the victim as she moved
away from him, grabbed her, and hit her in the face.
The victim went into her apartment, locked her door, and
called a friend. The victim noticed that someone had ripped
2 down two Ring cameras inside her apartment. She viewed the Ring
footage from earlier and saw the defendant walk from her balcony
and through her living room. The victim believed that the
balcony door was open so that her dog could go in and out during
the summer. The victim did not see any activity on the Ring
video showing the front door.
Discussion. 1. Breaking and entering indictment. We
review the sufficiency of the evidence to determine "whether,
after viewing the evidence in the light most favorable to the
[Commonwealth], any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis and citation omitted). Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). "If, from the evidence, conflicting
inferences are possible, it is for the jury to determine where
the truth lies, for the weight and credibility of the evidence
is wholly within their province." Commonwealth v. Lao, 443
Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007), and 460 Mass.
12 (2011). In addition, "[c]ircumstantial evidence is competent
to establish guilt beyond a reasonable doubt . . . and the
reasonable inferences drawn from such evidence need not be
necessary or inescapable, only reasonable and possible"
(quotations and citations omitted). Commonwealth v. MacCormack,
491 Mass. 848, 854 (2023).
3 The elements of breaking and entering into a building in
the nighttime with the intent to commit a felony are
"(1) breaking and (2) entering a building . . . belonging to
another (3) at night, (4) with the intent to commit a felony."
Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007). On appeal,
the defendant argues that the Commonwealth failed to prove that
a "breaking" took place.
The statutory element of a breaking "has long been
understood to include all actions violating the common security
of a dwelling" (quotation and citation omitted). Commonwealth
v. Burke, 392 Mass. 688, 689 (1984). The Supreme Judicial Court
(SJC) has concluded that "entry through an open window not
apparently intended, or useable in due course, as a means of
entry" constitutes a breaking, as "[t]he security of the house
in such a case is at least as much invaded as when a closed
unlocked door is opened." Commonwealth v. Tilley, 355 Mass.
507, 509 (1969). Although this statement was dictum, this court
has since squarely reaffirmed it. See Commonwealth v. Hall, 48
Mass. App. Ct. 727, 731 (2000) ("the very fact that the [SJC]
took some pains to pull away from more mechanistic views of a
'breaking' assures us that the Tilley court intended to state
the law in respect of entry by an open window that one cannot
walk through").
4 Here, it is obvious that the victim did not intend that the
third-floor balcony door would be an entrance to her apartment.
The balcony is not reachable from a fire escape or outdoor
staircase, nor is it attached to a neighbor's balcony. The fact
that the victim may have left the balcony door open so her dog
could go outside on the balcony does not change the fact that
the balcony door is not intended as an access way to the
apartment. In order to enter the victim's front door, one needs
a fob to enter the building and a code to open the front door.
Based on the video and the broken ring cameras, the jury
could have inferred that the defendant somehow accessed the
victim's private third-floor balcony and entered the apartment
through the balcony door. Viewing the evidence in the light
most favorable to the Commonwealth, the jury could have
permissibly inferred that the defendant's entry was a breaking.
See Latimore, 378 Mass. at 677-678.
2. Witness intimidation indictment. The defendant did not
object to the absence of a specific unanimity instruction, nor
did he request one. Since this claim is being raised for the
first time on appeal, our review is limited to whether the
absence of such an instruction created a substantial risk of a
miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.
App. Ct. 635, 640 (2022).
5 A judge's "failure to give a specific unanimity instruction
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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
24-P-1377
COMMONWEALTH
vs.
ERIC VILA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a Superior Court jury
trial of witness intimidation, G. L. c. 268, § 13B; vandalizing
property, G. L. c. 266, § 126A; and breaking and entering into a
building in the nighttime with the intent to commit a felony,
G. L. c. 266, § 16.1 On appeal, the defendant argues that the
evidence was insufficient as to the breaking and entering charge
and that the witness intimidation conviction must be vacated
because the Commonwealth presented alternative factual theories
of the commission of the offense, a specific unanimity
1The defendant was acquitted of two other charges and, after the jury reported that it was deadlocked on the remaining charges, the Commonwealth nol prossed those remaining charges. instruction was not provided, and the jury did not unanimously
agree on at least two of the factual theories. We affirm.
Background. We summarize the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Lopez, 484
Mass. 211, 211 (2020). The victim and the defendant were in a
relationship for three to four years but were no longer dating
by February 2023. On February 1, 2023, the victim reported to
the police that the defendant had damaged the door frame to the
front door of her apartment and had damaged the door to her
garage when the defendant took her car from the garage to the
apartment parking lot without her permission.
On August 4, 2023, a trial was scheduled regarding the
February incident. Around 12:45 A.M. on the morning of the
trial, the defendant approached the victim while she was in her
car outside her apartment building. The defendant pleaded to
talk with her to "fix things" and "work something out." The
defendant forced his way into the driver's seat of the car; the
victim, who had been in the driver's seat, crawled to the
passenger side and got out of the vehicle. After the victim
told the defendant to "go home" and "leave it alone," the
defendant got out of the car, followed the victim as she moved
away from him, grabbed her, and hit her in the face.
The victim went into her apartment, locked her door, and
called a friend. The victim noticed that someone had ripped
2 down two Ring cameras inside her apartment. She viewed the Ring
footage from earlier and saw the defendant walk from her balcony
and through her living room. The victim believed that the
balcony door was open so that her dog could go in and out during
the summer. The victim did not see any activity on the Ring
video showing the front door.
Discussion. 1. Breaking and entering indictment. We
review the sufficiency of the evidence to determine "whether,
after viewing the evidence in the light most favorable to the
[Commonwealth], any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis and citation omitted). Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). "If, from the evidence, conflicting
inferences are possible, it is for the jury to determine where
the truth lies, for the weight and credibility of the evidence
is wholly within their province." Commonwealth v. Lao, 443
Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007), and 460 Mass.
12 (2011). In addition, "[c]ircumstantial evidence is competent
to establish guilt beyond a reasonable doubt . . . and the
reasonable inferences drawn from such evidence need not be
necessary or inescapable, only reasonable and possible"
(quotations and citations omitted). Commonwealth v. MacCormack,
491 Mass. 848, 854 (2023).
3 The elements of breaking and entering into a building in
the nighttime with the intent to commit a felony are
"(1) breaking and (2) entering a building . . . belonging to
another (3) at night, (4) with the intent to commit a felony."
Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007). On appeal,
the defendant argues that the Commonwealth failed to prove that
a "breaking" took place.
The statutory element of a breaking "has long been
understood to include all actions violating the common security
of a dwelling" (quotation and citation omitted). Commonwealth
v. Burke, 392 Mass. 688, 689 (1984). The Supreme Judicial Court
(SJC) has concluded that "entry through an open window not
apparently intended, or useable in due course, as a means of
entry" constitutes a breaking, as "[t]he security of the house
in such a case is at least as much invaded as when a closed
unlocked door is opened." Commonwealth v. Tilley, 355 Mass.
507, 509 (1969). Although this statement was dictum, this court
has since squarely reaffirmed it. See Commonwealth v. Hall, 48
Mass. App. Ct. 727, 731 (2000) ("the very fact that the [SJC]
took some pains to pull away from more mechanistic views of a
'breaking' assures us that the Tilley court intended to state
the law in respect of entry by an open window that one cannot
walk through").
4 Here, it is obvious that the victim did not intend that the
third-floor balcony door would be an entrance to her apartment.
The balcony is not reachable from a fire escape or outdoor
staircase, nor is it attached to a neighbor's balcony. The fact
that the victim may have left the balcony door open so her dog
could go outside on the balcony does not change the fact that
the balcony door is not intended as an access way to the
apartment. In order to enter the victim's front door, one needs
a fob to enter the building and a code to open the front door.
Based on the video and the broken ring cameras, the jury
could have inferred that the defendant somehow accessed the
victim's private third-floor balcony and entered the apartment
through the balcony door. Viewing the evidence in the light
most favorable to the Commonwealth, the jury could have
permissibly inferred that the defendant's entry was a breaking.
See Latimore, 378 Mass. at 677-678.
2. Witness intimidation indictment. The defendant did not
object to the absence of a specific unanimity instruction, nor
did he request one. Since this claim is being raised for the
first time on appeal, our review is limited to whether the
absence of such an instruction created a substantial risk of a
miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.
App. Ct. 635, 640 (2022).
5 A judge's "failure to give a specific unanimity instruction
sua sponte does not automatically give rise to a substantial
risk of a miscarriage of justice where . . . the Commonwealth
presented evidence sufficient to withstand a motion for a
required finding of not guilty on each of the charged offenses."
Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719-720 (2007).2
To prove witness intimidation, the Commonwealth must prove that
the defendant "(1) willfully; (2) threatened, intimidated, or
harassed; (3) a witness in a criminal proceeding of any type;
(4) with the intent to impede or interfere with a criminal
investigation or proceeding" (quotation and citation omitted).
Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304 (2023).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found that the victim was a
potential witness at the defendant's trial regarding the
February incident and that on the day she was set to appear in
court for that case, the defendant broke into her apartment and
then confronted her at her car where he asked if they could "fix
things" and "work something out." The defendant forced his way
into the car; after the victim told him to "go home" and "leave
2 Generally, a defendant is only entitled to a specific unanimity instruction when the Commonwealth proceeds on alternative theories of guilt in which the same crime can be committed. See Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 571 (2009). Here, the Commonwealth did not proceed on alternative theories of witness intimidation.
6 it alone," the defendant got out of the car, followed the
victim, and hit her in the face. Because any one of those acts
sufficed for the jury to find that the defendant was guilty of
witness intimidation, there was no substantial risk of a
miscarriage of justice.
Judgments affirmed.
By the Court (Meade, D'Angelo & Tan, JJ.3),
Clerk
Entered: June 4, 2026.
3 The panelists are listed in order of seniority.