MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 16, 2020, a panel of this court affirmed the defendants conviction pursuant to G. L. c. 269, § 10G, of being a felon in possession of a firearm after having been previously convicted of two violent crimes. The defendant filed for further appellate review, which was denied without prejudice, but the case was remanded to this court for reconsideration of the defendants conviction, in light of the Supreme Judicial Courts recent decision in Commonwealth v. Ashford, 486 Mass. 450 (2020). For the reasons set forth below, we affirm.
1. Prior violent crimes. The defendant claims that given the Supreme Judicial Courts holding in Ashford, his prior offenses of assault by means of a dangerous weapon (ADW) and assault and battery (A&B) do not constitute “violent crimes” for the purposes of G. L. c. 269, § 10G. We disagree.
“The ACCA provides a staircase of mandatory minimum and maximum enhanced punishments for certain weapons-related offenses if a defendant has been previously convicted of a ‘violent crime’ or a serious drug offense.” Commonwealth v. Wentworth, 482 Mass. 664, 670 (2019). A defendant who commits such a weapon-related offense, while having two prior convictions for a “violent crime” or serious drug offense, is subject to a mandatory sentence of ten to fifteen years in state prison. See G. L. c. 269, § 10G (b). Under the ACCA, a “violent crime” includes “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another.” G. L. c. 140, § 121. In determining whether a prior offense constitutes a violent crime for the purposes of G. L. c. 269, § 10G, we use a “modified categorical approach,” where we look at additional evidence beyond the mere elements of the offense, to determine if the offense constitutes a “violent crime.” Wentworth, 482 Mass. at 672.
However, in Ashford, the Supreme Judicial Court held that where the relevant predicate crime was A&B or ADW, the Commonwealth must prove that the defendant used intentional physical force, not mere recklessness, in order for the predicate offense to constitute a violent crime. See Ashford, 486 Mass. at 451, 467. Therefore, for the defendants conviction under G. L. c. 269, § 10G, to stand, his predicate offenses for ADW and A&B must have involved the intentional use of physical force. See Ashford, supra.
We previously concluded that the evidence from the defendants conviction for ADW, when viewed in the light most favorable to the Commonwealth, was sufficient for the offense to constitute a “violent crime” under the modified categorical approach.
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See G. L. c. 140, § 121. The defendant, after an argument, revved his engine and attempted or threatened to run over the victim with a motor vehicle. The defendants action required the victim to jump out of the way to avoid being struck. The defendant also admitted that he intended to scare the victim. Such an attempt or threat to run over another with a motor vehicle under these circumstances undoubtedly demonstrates an intent, not mere recklessness, to threaten the use of physical force against another. Cf. Ashford, 486 Mass. at 466, citing Leocal v. Ashcroft, 543 U.S. 1, 9-11 (2004) (act of driving under influence of alcohol carries substantial risk of bodily injury to another, but lacks intent for “use” of physical force against another). At bottom, such evidence demonstrates not only that the defendant acted with the required attempted and threatened use of physical force with a dangerous weapon (a motor vehicle) against another person, but also that when viewed in the light most favorable to the Commonwealth, such use of force was intentional. See Ashford, supra at 468. Indeed, he admitted as much.
Furthermore, the evidence surrounding the defendants conviction for A&B, when viewed in the light most favorable to the Commonwealth, was sufficient to establish that the predicate offense was one of violence under the force clause of the ACCA. During an argument with his mother, the defendant put his hands on her, attempted to grab her by her throat, forced her to the ground, and “grabbed” her phone out of her hand when she tried to call 911. The defendants act of attempting to grab his mothers throat to force her to the ground demonstrates the defendants intent to use force, or attempt to use force, to prevent his mother from calling 911. Cf. Ashford, 486 Mass. at 466, citing Voisine v. United States, 136 S. Ct. 2272, 2279 (2016) (husband recklessly hurling plate in anger against wall near his wife constitutes use of force, even if husband does not know or have “as an object,” but only recognizes substantial risk, that shard from plate would ricochet and injure his wife). When viewed in the light most favorable to the Commonwealth, such evidence demonstrates that, like his conviction for ADW, the defendants prior offense of A&B was for intentional conduct, rather than mere recklessness. See Ashford, supra.
Therefore, even when viewed with the benefit of the Supreme Judicial Courts further guidance in Ashford, the Commonwealth provided sufficient evidence that the defendants prior offenses for ADW and A&B both constitute violent crimes for the purposes of G. L. c. 269, § 10G.
2. Jury instructions. For the first time in a post-remand supplemental memorandum, the defendant claims that a new trial is warranted, given the judges failure to instruct the jury that the defendants prior offenses for ADW and A&B required the intentional use of violent force against another person, rather than mere reckless conduct.
This new claim falls outside the scope of the Supreme Judicial Courts remand order to this panel. In that order, the court requested that we reconsider the defendants convictions in light of Ashford, which does not discuss or hold anything related to jury instructions. Because such a jury instruction claim requires a careful evaluation of the trial evidence, and an opportunity for the Commonwealth to respond, this claim would be more appropriately resolved in a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).
Judgment affirmed.
FOOTNOTES
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. When evaluating the sufficiency of evidence, the evidence must be viewed in the light most favorable to the Commonwealth with specific reference to the substantive elements of the offense. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Here, the Commonwealth must prove that the defendants conviction “has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another.” G. L. c. 140, § 121.