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Commonwealth v. Oswaldo O.

Appeals Court of Massachusetts, Suffolk

December 10, 2018

COMMONWEALTH
v.
OSWALDO O., a juvenile.

          Heard: September 6, 2018. [1]

         Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on May 25, 2016.

         The case was heard by Stephen M. Limon, J.

          Eva G. Jellison for the juvenile.

          Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

          Present: Blake, Wendlandt, & McDonough, JJ.

          WENDLANDT, J.

         This case involves the application of the doctrine of transferred intent to the crime of assault, which consists of two forms: attempted battery and immediately threatened battery. In Commonwealth v. Melton, 436 Mass. 291 (2002), the Supreme Judicial Court applied the doctrine in connection with the intent element of the attempted battery form of assault. We address now whether the doctrine applies to the intent element of the immediately threatened battery form of assault. In particular, following a bench trial, a Juvenile Court judge adjudicated the juvenile delinquent on one count of assault by means of a dangerous weapon, G. L. c. 265, § 15B.[2] On appeal, the juvenile contends the judge found only that he intended to place one specific victim[3] in fear (as to whom there was no charge) and improperly relied on the doctrine of transferred intent to satisfy the intent element of the immediately threatened battery form of assault with regard to two different victims.[4] Concluding that the doctrine of transferred intent applies to the immediately threatened battery form of assault, we affirm.

         Background.

         The judge's underlying factual findings are not disputed. On May 24, 2016, three high school students (B.H., A.R., [5] and B.H.'s friend, E) were having lunch at a restaurant near their high school in Chelsea when the juvenile approached them. The juvenile was wearing a Tennessee Titans hat, while E was wearing a Chicago Bulls hat; the juvenile asked E to which gang he belonged and told E to "take off" his hat. B.H. testified that he understood the Bulls hat to signify affiliation with the MS gang. The juvenile opened his backpack, displaying a knife. A.R. saw the knife. The juvenile left the restaurant, but remained immediately outside the restaurant with four companions.

         After finishing lunch, B.H., A.R., and E left the restaurant together and entered the park across the street, heading back toward their high school. The juvenile followed them on his bicycle, remaining approximately three meters behind the boys. At some point, however, the juvenile passed the boys, arrived at a small staircase in the park, and dismounted his bicycle. As the boys approached the stairs, the juvenile stopped them. He asked A.R. whether he knew the meaning of the Bulls hat. A.R. replied that he did not. The juvenile then instructed E to take off the Bulls hat, if he did not want any trouble. Following the threat, the juvenile moved behind B.H., A.R., and E, and pulled his backpack from his back to his chest. The juvenile unzipped the backpack and reached inside for the knife. A.R. again saw the knife, and B.H. covered his hands with his sleeves to shield himself from a possible weapon. B.H. and A.R. wrestled the backpack away from the juvenile and ran to the high school.

         Procedural history.

         The juvenile was adjudicated delinquent on the charge of assaulting B.H. by means of a dangerous weapon.[6] At defense counsel's request, the judge entered a continuance without a finding until the juvenile's eighteenth birthday.[7] Under the terms of the continuance, if the juvenile successfully completed the probationary period, the matter would be dismissed, and the juvenile would not have a record of delinquency as a result of the case. The juvenile filed a timely notice of appeal. Approximately half way through his probationary period, and while his appeal was pending, the juvenile filed a motion to terminate probation, which was allowed. Thereafter, the case was dismissed.

         The Commonwealth moved to dismiss the appeal as moot in view of the continuance without a finding and the dismissal of the underlying case. A ...


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