Commonwealth v. Kot

83 Mass.App.Ct. 1109

981 N.E.2d 235

COMMONWEALTH

v.Dmitriy KOT.

No. 11–P–993.

Appeals Court of Massachusetts.

January 30, 2013.

OPINION TEXT STARTS HEREBy the Court (RAPOZA, C.J., KATZMANN & CARHART, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Having been convicted by a Superior Court jury of armed robbery, the defendant now appeals. We affirm.

Discussion. 1. Joint venture and principal liability. The defendant argues that the trial judge committed error in instructing the jury that they could find the defendant guilty of armed robbery either as a principal or as a participant in a joint enterprise. He contends that the Commonwealth presented insufficient evidence for the jury to convict on the theory of principal liability. The defendant argues that since the judge did not instruct the jury to specify the theory of liability on which they based their verdict, the Commonwealth was obligated to present sufficient evidence to support a finding of both principal and joint venture liability. This argument is not meritorious. In Commonwealth v. Zanetti, 454 Mass. 449 (2009), the Supreme Judicial Court held that “principal liability is not a separate ‘theory’ distinct from joint venture liability.” Id. at 464. The issue for the jury was not, as the defendant claims, whether there was sufficient evidence to convict the defendant as a principal in an armed robbery. Rather, the question was whether “the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Id. at 468. 2. Sufficiency of the evidence. We next turn to whether “the evidence [wa]s sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of [armed robbery], with the intent required to commit the crime.” Id. at 467. In reviewing the sufficiency of the evidence, under the familiar standard this court considers “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged....” Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).

At trial, the Commonwealth presented sufficient evidence to establish each element of armed robbery: (1) armed with a dangerous weapon, (2) the defendant assaulted another person, (3) and took money or property from the person with the intent to steal. G.L. c. 265, § 17. After his arrest, the defendant admitted to the police that he organized the meeting with the victim under the pretense of selling him drugs in order to rob him. The arresting officer testified to this admission at trial and provided the jury with ample evidence that the defendant intended to steal from the victim.

Additionally, the victim testified that two men—the defendant and his coventurer—approached him and that one of the two was armed with a canister of mace, sprayed him in the face with the mace, and then stole $1,800 dollars from his possession. While the victim could not remember whether the defendant or the...