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17-P-849                                              Appeals Court

            COMMONWEALTH    vs.   OSWALDO O.,1 a juvenile.


                             No. 17-P-849.

        Suffolk.       September 6, 2018. - December 10, 2018.

           Present:    Blake, Wendlandt, & McDonough, JJ.


Assault by Means of a Dangerous Weapon. Moot Question.
     Juvenile Court, Delinquent child. Practice, Civil, Moot
     case. Practice, Criminal, Juvenile delinquency proceeding.
     Intent. Due Process of Law, Juvenile delinquency
     proceeding, Notice.



     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.


    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


    1   A pseudonym.
                                                                   2


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 victim3 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.




     2 The judge allowed the juvenile's motion for a directed
finding of not delinquent on a second count, charging a
municipal ordinance violation for carrying a dangerous weapon.

     3 We shall refer to this victim as "E"; his surname was not
in the record.

     4 Although the trial judge's findings discuss the doctrine
of transferred intent with respect to two different victims
(B.H. and A.R.), the delinquency complaint charged the juvenile
with only one count of assault by means of a dangerous weapon,
against B.H. This discrepancy does not alter our analysis.
                                                                     3


     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


     5 The judge referred to these witnesses by their first
names; we refer to them by their initials.
                                                                     4


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.




     6   He was not charged with assaulting E or A.R.

     7 See Commonwealth v. Magnus M., 461 Mass. 459, 463-464
(2012) (determining that, in juvenile delinquency proceedings,
G. L. c. 119, § 58, permits Juvenile Court judge to continue
case without a finding notwithstanding adjudication of
delinquency).
                                                                     5


     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 single justice of this court denied the

motion.

     Discussion.    1.   Mootness.   As a preliminary matter, the

Commonwealth contends in its brief (as it did in its motion to

dismiss) that the juvenile's appeal is moot because the case was

dismissed after he agreed to the continuance without a finding.

In response, the juvenile asserts that his appeal is not moot

because he is currently applying for a change of immigration

status, and the adjudication of delinquency and continuance

without a finding could jeopardize his application.      The

juvenile cites several immigration decisions in which juvenile

delinquency and gang affiliation were considered in connection

with the denial of a request for a change in immigration status8

and, thus, he has shown that "there remain genuine and serious

collateral consequences" to the judge's adjudication, and the

case is not moot.    Commonwealth v. Villalobos, 437 Mass. 797,

800 (2002) (quotation omitted).      See id. at 799-800 (declining

to dismiss as moot reported question concerning adequacy of

alien warnings where defendant faced unfavorable immigration

consequences from admission to sufficient facts, notwithstanding




     8   The Commonwealth provides no substantive response.
                                                                     6


dismissal of charge after successful completion of continuance

without a finding period).   See also Commonwealth v. Argueta, 73

Mass. App. Ct. 564, 566 (2009) (holding that appeal from order

denying motion for new trial where defendant received

continuance without finding and charges were subsequently

dismissed not moot because "the defendant has a continuing

personal stake in the outcome of this litigation").

Accordingly, we address the merits of the juvenile's arguments

on appeal.

     2.   Assault by means of a dangerous weapon.   An assault may

be perpetrated in either of two ways:   an attempted battery9 or

an immediately threatened battery.   See Commonwealth v.

Chambers, 57 Mass. App. Ct. 47, 48 (2003).   Acknowledging that

the Supreme Judicial Court in Melton applied the doctrine of

transferred intent to the attempted battery form of assault, the

juvenile asserts that the doctrine should not be applied to the

immediately threatened battery form of assault -- the form of

assault at issue in the present case.   This form of assault

requires the Commonwealth to prove that "the defendant

intentionally engaged in menacing conduct that reasonably caused


     9 "Under the attempted battery theory, the Commonwealth must
prove that the defendant [i] intended to commit a battery,
[ii] took some overt step toward accomplishing that intended
battery, and [iii] came reasonably close to doing so." Melton,
436 Mass. at 295. The Commonwealth does not contend that the
juvenile committed this form of assault.
                                                                       7


the victim to fear an imminent battery."10     Melton, 436 Mass. at

295 n.4.    It is a specific intent crime, which requires the

Commonwealth to show that the defendant intended to put the

victim in fear.    Commonwealth v. Musgrave, 38 Mass. App. Ct.

519, 523-525 (1995), S.C., 421 Mass. 610 (1996).      The juvenile

contends that the judge found that he intended only to put E in

fear, and impermissibly relied on the doctrine of transferred

intent in finding that he also intended to put B.H. and A.R. in

fear.

       a.   Direct intent.   We begin by examining the premise

underlying the juvenile's argument -- namely, that the judge

found that he intended only to place E in fear and relied solely

on the doctrine of transferred intent with regard to B.H. and

A.R.    We agree that the judge appeared to apply the doctrine of

transferred intent, as discussed infra.      However, the judge also

stated that "[i]ntent may be inferred on the basis of an overt

act, which puts another person in fear, and that fear is

reasonable, irrespective of whether the defendant actually

intended bodily harm."       Continuing, he stated that "both [A.R.]

and [B.H.] were in fear when [the juvenile] unzipped his




       The crime of assault by means of a dangerous weapon adds
       10

one additional element -- namely, that the assault was
perpetrated by means of a dangerous weapon. Melton, 436 Mass.
at 294. The juvenile does not contest that the knife
constitutes a dangerous weapon.
                                                                     8


backpack and reached for a knife.   That fear was reasonable

considering the fact that they were with E[] when [the juvenile]

had made a similar demand of E[ to remove his hat], revealing a

knife to him inside [the restaurant] just minutes before."

Thus, it appears that the judge found that the juvenile intended

to cause fear in B.H. and A.R. based on the juvenile's overt

acts of unzipping his backpack and reaching for the knife.

    Moreover, the evidence was sufficient to support such a

finding, contrary to the juvenile's contention on appeal.      The

juvenile approached E while he was sitting together with B.H.

and A.R. in the restaurant.   The juvenile showed his knife to E

and, in doing so, also to A.R.   He proceeded to follow not just

E, but also A.R. and B.H. in the park.   At the stairs, he

stopped all of them, asked whether A.R. understood the meaning

of the Bulls hat and threatened that E should remove the hat to

avoid "trouble."   He moved behind B.H., A.R., and E as he pulled

the backpack to his chest, opened it, and reached for the knife,

which he had previously displayed in the restaurant.   From these

facts, a trier of fact could rationally find that the juvenile's

intended victim was not only E (who was wearing the Bulls hat),

but also E's companions.   See, e.g., Melton, 436 Mass. at 300

(noting that defendant who waved gun in direction of motor

vehicle with four passengers would be guilty of four assaults by

means of dangerous weapon "because his intentionally menacing
                                                                     9


conduct would have been directed at and instilled fear in four

people," despite fact that only one of the four individuals was

intended victim); Musgrave, 38 Mass. App. Ct. at 524 (explaining

that "in most cases intentionally menacing conduct gives rise to

a reasonable inference of intent to cause apprehension").

    b.     Transferred intent.   Nevertheless, we recognize that

the judge also stated that "[a] defendant's intent may extend to

others beyond the actual intended victim, including a victim who

happened to suffer along with the intended victim," citing

Melton, 436 Mass. at 297-298.    He then found that "E[] was the

intended victim," but further found that "[A.R.] and [B.H.] also

were victimized by [the juvenile's] actions, given their

immediate presence with E[] and their reaction to [the

juvenile's] words and actions."    Accordingly, the judge may have

relied on the doctrine of transferred intent, and we address the

juvenile's arguments regarding the propriety of its application

in the context of the immediately threatened battery form of

assault.

    Our analysis is guided by the Supreme Judicial Court's

decision in Melton.    In that case, the defendant shot one bullet

into a car with four passengers, striking none of them.      Melton,

436 Mass. at 293.     The jury convicted the defendant of four

counts of assault by means of a dangerous weapon on the basis of

the attempted battery form of assault.     Id. at 294-295.   The
                                                                      10


defendant argued that he could not have intended to commit a

battery11 as to each of the four victims because he had shot just

one bullet.   Id. at 295.   Recognizing that only one of the

passengers was the intended victim, the court affirmed each of

the convictions, relying on the doctrine of transferred intent.

Id. at 298.   In doing so, it rejected many of the same arguments

raised by the juvenile in the present case.

       In particular, the juvenile objects to the application of

the doctrine of transferred intent to his case because,

according to the juvenile, it is a "novel" theory of law that

has not been applied previously to the immediately threatened

battery form of assault.    Transferred intent is not novel.     To

the contrary, as the Supreme Judicial Court acknowledged in

Melton, "We have never required that a defendant's intent be

directed at the precise victim of the crime.    Rather, we have

long recognized the concept of 'transferred intent' in

situations where the defendant's conduct harms a person other

than the intended victim."    Melton, 436 Mass. at 296.     Indeed,

in Melton, the court both announced the applicability of the

doctrine to the attempted battery form of assault and applied it

to the defendant's case, affirming his convictions.       Id. at 298-

300.



       Intent to commit a battery is an element of the attempted
       11

battery form of assault. See note 9, supra.
                                                                    11


    Further, while the court in Melton applied the doctrine to

the attempted battery form of assault, it implicitly recognized

that the doctrine applied equally to the immediately threatened

battery form.   Id. at 299-300.   Specifically, the court stated

that, had the defendant in that case merely waved his gun at the

four passengers, he would have committed an immediately

threatened battery form of assault against each of the four even

though the intended victim was only one of them.    Id.   "The

criminal law is designed primarily to preserve the public

peace."   Chambers, 57 Mass. App. Ct. at 49, quoting Commonwealth

v. Slaney, 345 Mass. 135, 138-139 (1962).    It would make little

sense to allow the perpetrator of an assault against one victim

to escape conviction with regard to the victim's immediate

companions, who, because of proximity to the intended victim,

also feared an immediate battery.

    Next, the juvenile asserts that the doctrine of transferred

intent violates due process by relieving the Commonwealth of its

burden to show each element of the crime beyond a reasonable

doubt.    This same argument was rejected in Melton.   The court

explained, "[T]he requisite mens rea must be shown, but it does

not need to be shown separately or independently for each

victim.   Rather, once established as to any victim, it satisfies

that element with respect to all other victims, even if those

victims are unintended or even unknown to the defendant."
                                                                   12


Melton, 436 Mass. at 298.   See id. at 296-297 (listing other

jurisdictions applying principle of transferred intent to

"satisfy the element of intent when a defendant harms both the

intended victim and one or more additional but unintended

victims").

     The juvenile also claims that the doctrine of transferred

intent violates due process because it provides insufficient

notice of the proscribed conduct, asserting that the doctrine

would allow the juvenile to be convicted of assaulting an

"unknowable number" of bystanders in the park who might have

heard his threat to E and thus have feared being subject to

unintentional violence.   Whatever the outer limits of the

doctrine may be, there is no due process violation here.     The

juvenile approached the three high school students at the

restaurant, followed each of them through the park, stopped them

each at the stairs, and then placed himself behind each of them

as he reached for his knife.   He was not prosecuted because he

instilled fear in an unknowable bystander in the park who

happened to overhear his threats, but instead because he

directly placed in fear B.H. and A.R. -- E's immediate

companions in the restaurant and park that afternoon.12    Holding


     12To the extent that we do not address expressly the
defendant's other contentions, they "have not been overlooked.
We find nothing in them that requires discussion." Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
                                                                 13


the juvenile responsible for the fear he instilled in B.H. and

A.R. no more offends due process than the potential outcome

acknowledged in Melton -- namely, that if the defendant had

merely waved his gun, rather than firing it at the automobile,

he could have been held responsible for the fear thereby

instilled in the four passengers despite the fact that his

immediately intended target was only one of them.

                                   Adjudication of delinquency
                                     affirmed.
