State v. Jeremiah

• Decision Date: 18 August 1988
• Docket Number: No. 87-287-C,87-287-C
• Citation: 546 A.2d 183
• Parties: STATE v. Andrew JEREMIAH. A.
• Court: Rhode Island Supreme Court

Page 183

546 A.2d 183

STATE v. Andrew JEREMIAH.

No. 87-287-C.A.

Supreme Court of Rhode Island.

Aug. 18, 1988.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., Caroline Cole Cornwell, Asst. Atty. Gen., for plaintiff.

John A. O'Neill, Jr., Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case is before us on the defendant's appeal from judgments of conviction on one count of assault with a dangerous weapon and two counts of breaking and entering in the daytime entered in the Superior Court following a jury trial. We affirm. The facts insofar as pertinent to this appeal are as follows.

In June of 1984, the defendant, Andrew Jeremiah (Jeremiah) and his brother purchased a multiple-unit manufacturing complex located on Charles Street in Providence. In accordance with the purchase agreement, the Jeremiahs were to assume any and all leases and tenancies in effect as of the date of purchase. Among those leases to be assumed by the Jeremiahs was the lease agreement for Gennaro, Inc. (Gennaro), a jewelry-manufacturing business owned by Steven and Beverly Casinelli.

Several weeks after Jeremiah bought the complex, a dispute arose between Jeremiah and the Casinellis regarding the fee for water usage, the amount of space being occupied by Gennaro, and the amount of rent being paid by the Casinellis for the space. According to the lease agreement entered into between the Casinellis and the former owners of the complex (in September 1983, to be effective for two years), the Casinellis would occupy 3,500 square feet on the second floor of one of the buildings known as "Building no. 15." However, the Casinellis were informed by Jeremiah that they were actually occupying approximately 6,000 square feet, and that he intended to raise their rent from $375 per month to about $1,200 per month. The Casinellis refused to pay the additional rent.

The lease agreement also provided that the Casinellis would pay a water-usage fee for any water used in the course of their business. It seems that the bulk of the water bill was attributed to two water-cooled air-conditioning units being used by the Casinellis for Gennaro. One of the units was located in Building no. 15, whereas a second unit was located in Building no. 24, in an area of the building occupied by Gennaro, but not covered in the lease. Although they had not been previously paying for water, in spite of the terms of the lease, the Casinellis agreed to do so in the future, as long as Jeremiah either installed a meter to measure the amount of water being used, or presented them with a bill for water they had used.

According to Jeremiah, the Casinellis elected not to pay to use the air conditioners. Consequently, Jeremiah "shut down" the units by installing locks on the master switches so that the units could not be operated. Several days later, Jeremiah noticed that the air conditioners were being used in spite of the locks that had been installed. Beverly Casinelli explained on cross-examination that because it was midsummer and the windows in their offices could not be opened, she and her husband had cut the locks on the air conditioners so that the two units could be operated.

Several days later, according to Mrs. Casinelli, while sitting at her desk in her office, Jeremiah burst into the room with a frightening look in his eyes. Mrs. Casinelli phoned the police while Jeremiah proceeded to run into the factory. Shortly thereafter Jeremiah came out of the factory and ran back out the door, while Mrs. Casinelli was still on the phone with the police. At that point, Mr. Casinelli, who had been out of the office, returned. After Mrs. Casinelli informed him of Jeremiah's actions, Mr. Casinelli closed and locked with a deadbolt, the main entrance door to the building. ¹

Within a few minutes, Jeremiah returned, ax in hand, and banged on the main door until it opened. Holding the ax with both hands, Jeremiah again burst into the Casinellis' office, "stormed" past the Casinellis and into the factory to the air-conditioning units, and began hacking at the on-off switches with the ax. Jeremiah succeeded in shutting both units down. Upon returning to the Casinellis' office, Jeremiah stopped at Mr. Casinelli's desk, and with ax in hand, told Mr. Casinelli, "I'm not done with you yet, sucker. The next time this is for you." Jeremiah then ran out the door. ²

Jeremiah's testimony differed in that he stated that he and a few of his maintenance workers went to the Casinellis' office, where Mrs. Casinelli, after spotting them, tried to keep them out until she could shut down the air-conditioning units. Jeremiah stated that he forced open the door to the office, walked back to where the units were located and observed that the electrical boxes around the on-off switches had been mutilated, and the air-conditioning units were being operated. Jeremiah further stated that wanting to shut down the air conditioners without cutting off all the electricity, he left to get a fire ax in order to chop the wires on the electrical boxes. Upon returning, he saw that the Casinellis were trying to shut the main door to the building, which he then forced open. Jeremiah stated that he then went directly to the air-conditioning units, and smashed the electrical boxes with the ax, disabling the units. On his way out of the building, Jeremiah acknowledged that he stopped at Mr. Casinelli's desk, but told him, "That will teach you to screw with me." He denied making any threatening gestures toward Mr. Casinelli.

At the close of all the evidence, Jeremiah moved for a judgment of acquittal on all counts. As to the assault charge, Jeremiah argued that since there was no direct evidence from Mr. Casinelli that he was placed in fear, the assault charge could not stand. As to the breaking and entering counts, Jeremiah argued that under the lease, he had authority to enter the premises. The trial justice denied the motions and the jury returned guilty verdicts on all three counts. Thereafter, Jeremiah's motion for a new trial was denied and Jeremiah was sentenced to one-year supervised probation on each count to run concurrently. As to counts 2 and 3, the breaking and entering charges, Jeremiah was fined $300 on each count, for a total of $600 to be paid to the Violent Crimes Indemnity Fund in addition to the statutory amount.

The defendant raises several issues on appeal. Further facts will be supplied as necessary to a determination of the issues.

I WHETHER THE TRIAL JUSTICE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF ASSAULT WITH A DANGEROUS WEAPON

The standard to be applied in respect to a motion for judgment of acquittal has often been stated. The trial justice must consider only that evidence which the prosecution claims is capable of generating proof beyond a reasonable doubt. Such evidence is to be viewed in the light most favorable to the state, and the trial justice must draw therefrom all reasonable inferences that are consistent with the guilt of the accused. Further, neither the weight of the evidence nor the credibility of the witness may be considered in passing upon such a motion. State v. Lemon, 497 A.2d 713, 718 (R.I. 1985); State v. Romano, 456 A.2d 746, 756-57 (R.I. 1983).

Jeremiah claims that the trial justice should have granted his motion for judgment of acquittal in the absence of any testimony by the state that Jeremiah performed any present overt act that was intended to harm either Mr. or Mrs. Casinelli. Jeremiah argues that the only testimony from which any fear by or threat to the well-being of the Casinellis could be inferred, relate to the words spoken by, and not the acts of, Jeremiah.

The standard definition of criminal assault in this jurisdiction from which the current case law has evolved is set forth in State v. Baker, 20 R.I. 275, 277, 38 A. 653, 654 (1897): "An assault, as ordinarily defined, is any unlawful attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness. The offence may consist, also, in putting another in fear of violence."

In Baker this court also recognized that "[t]o constitute an assault with a dangerous weapon it is necessary that the weapon should be presented at the party intended to be assaulted, within the distance at which it may do execution." 20 R.I. at 278, 38 A. at 654; accord, State v. Barella, 73 R.I. 367, 375, 56 A.2d 185, 188-89 (1947). In State v. Milazzo, 116 R.I. 443, 447, 358 A.2d 35, 37 (1976), we reaffirmed the principle that the actual present ability of the defendant to inflict harm on the victim by using a dangerous weapon is an element of the offense of assault with a dangerous weapon. See State v. Ashness, 461 A.2d 659, 665 (R.I. 1983).

There can be little doubt, in the facts of the instant case, that there was an actual present ability on the part of Jeremiah to inflict harm on Mr. Casinelli. Jeremiah was standing in close proximity to Mr. Casinelli, holding an ax in both of his hands. Mrs. Casinelli testified that Jeremiah was in a rage, a fact that the defense does not dispute, and that there was movement of the ax as he held it.

Jeremiah further argues that the state failed to prove that there was any apprehension or fear on the part of Mr. Casinelli. This court has previously held that apprehension and fear are not elements which must be shown to sustain a charge of criminal assault. In State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974), the defendant was convicted of eight counts of assault with a dangerous weapon and one count of committing a crime of violence while armed with a pistol. The evidence showed that he fired shots into the victim's home in the early hours of the morning, at which time none of the victims were aware of the shots being fired. This court found that "[t]he guilt or innocence of a person charged with assault depends entirely upon what the wrongdoer does and intends and...