Commonwealth v. Mark A. Tyler.

• Court: Massachusetts Appeals Court
• Decided: April 7, 2023
• Docket: 22-P-0477
• Status: Unpublished

Opinion

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.

2 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

3 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

4 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. 5