Commonwealth v. Stephen P. Fagan.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-699

COMMONWEALTH

vs.

STEPHEN P. FAGAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the District Court, the

defendant was convicted of assault by means of a dangerous

weapon, G. L. c. 265, § 15B (b), and threatening to commit a

crime, G. L. c. 275, § 2. On appeal, he claims that (1) there

was insufficient evidence to support his conviction of assault

by means of a dangerous weapon, and (2) the judge abused her

discretion in denying his motion for a new trial based on

ineffective assistance of trial counsel without conducting an

evidentiary hearing. We affirm. 1

1The defendant did not file a notice of appeal from his
August 9, 2023, conviction. Rather, on March 15, 2024, he filed
a "Motion for a Required Finding of Not Guilty and/or for New
Trial." That motion was denied on March 21, 2024, from which
Discussion. 1. Assault by means of a dangerous weapon.

"When analyzing whether the record evidence is sufficient to

support a conviction, an appellate court is not required to ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt. Nor are we

obligated to reread the record from a [defendant]'s perspective.

Rather, the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt (quotations and citations

omitted). Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152

(2008).

"When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense." Id. at 153. To prove assault by means of a dangerous

weapon pursuant to G. L. c. 265, § 15B (b), 2 the Commonwealth was

the defendant filed a timely notice of appeal. To the extent
the notice of appeal purports to appeal from his conviction, it
is untimely, and the conviction is not before us. To the extent
his posttrial motion argues that he is entitled to a new trial
because the evidence was insufficient, we address the issue.

2 General Laws c. 265, § 15B (b), provides that, "[w]hoever,
by means of a dangerous weapon, commits an assault upon another
shall be punished by imprisonment in the state prison for not
more than five years or by a fine of not more than one thousand
dollars or imprisonment in jail for not more than two and one-
half years."

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required to establish "that a defendant committed an assault,

the defendant intended to commit an assault, and the assault was

committed by means of a dangerous weapon." Commonwealth v.

Buttimer, 482 Mass. 754, 767 (2019). Under the "threatened

battery" theory of assault, the prosecution must prove "that the

defendant engaged in conduct that a reasonable person would

recognize to be threatening, that the defendant intended to

place the victim in fear of an imminent battery, and that the

victim perceived the threat." Commonwealth v. Porro, 458 Mass.

526, 530-531 (2010).

The defendant first contends that, viewing the evidence in

the light most favorable to the Commonwealth, the defendant's

pointing of a gun at the victim and his statement that "I'll

fucking shoot you," support a finding that the defendant

intended to place the victim in fear of a "future" battery, but

not one that was imminent. See Porro, 458 Mass. at 531. We

disagree. A rational trier of fact could have found that the

above actions amounted to a threat of an imminent battery. See

Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975)

(statement by defendant that he would shoot victim was

sufficient to cause reasonable apprehension of immediate

battery); Commonwealth v. Allen, 28 Mass. App. Ct. 589, 596

(1990) (defendant committed assault by means of dangerous weapon

by pointing loaded gun at police).

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The defendant also contends that the victim did not

reasonably perceive the risk of an imminent battery, as the

victim's response to the defendant's actions was to call the

defendant a "fucking pussy," rather than to "flinch, duck down,

or to immediately leave the vicinity in his car." Contrary to

the defendant's assertion, "[t]he victim need not actually be in

fear, but must apprehend the risk of an imminent battery."

Porro, 458 Mass. at 531.

Here, the victim testified that he was "in disbelief" when

the defendant stated that he would shoot him, that "everything

just slow[ed] down a moment," and that his "only thought process

was to try to read what [he] could from [the defendant's] eyes

to try to see what the likelihood . . . [was] of him actually

pulling the trigger." This was sufficient evidence for a

rational trier of fact to find that the victim perceived the

risk of an imminent battery. See Porro, 458 Mass. at 531.

2. Effective assistance. Finally, the defendant claims

that the judge abused her discretion in denying the defendant's

motion for a new trial based on ineffective assistance of

counsel without conducting an evidentiary hearing.

Specifically, the defendant contends that he was denied the

effective assistance of counsel where defense counsel failed to

investigate whether the Commonwealth was open to a plea

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agreement and to discuss such possibility with the defendant.

We disagree.

"We review the denial of a motion for a new trial 'only to

determine whether there has been a significant error of law or

other abuse of discretion.'" Commonwealth v. Bonnett, 482 Mass.

838, 843-844 (2019), quoting Commonwealth v. Grace, 397 Mass.

303, 307 (1986). "Reversal for abuse of discretion is

particularly rare where, [as here] the judge acting on the

motion was also the trial judge." Commonwealth v. Gil, 104

Mass. App. Ct. 124, 135 (2024), quoting Commonwealth v. Prado,

94 Mass. App. Ct. 253, 255 (2018). It is not error for a judge

to deny a motion for a new trial without an evidentiary hearing

"[i]f the theory of the motion, as presented by the papers, is

not credible or persuasive," see Gil, supra at 137 or "where the

moving party 'suspicious[ly] fail[s] to provide pertinent

information from an expected and available source.'"

Commonwealth v. Upton, 484 Mass. 155, 162-163 (2020), quoting

Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).

"When a motion for a new trial is based on ineffective

assistance of counsel, the defendant must show that the behavior

of counsel fell measurably below that of an ordinary, fallible

lawyer and that such failing 'likely deprived the defendant of

an otherwise available, substantial ground of defence.'" Gil,

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104 Mass. App. Ct. at 135, quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).

"To establish prejudice on account of counsel's deficient
performance in the plea context, the defendant must show a
reasonable probability that the result of a plea would have
been more favorable than the outcome of the trial. . . .
In particular, the defendant must demonstrate a reasonable
probability that the prosecution would have made an offer,
that the defendant would have accepted it, and that the
court would have approved it" (citations omitted).

Commonwealth v. Marinho, 464 Mass. 115, 129 (2013).

Here, the defendant supported his motion for new trial

merely with his own affidavit stating, in relevant part, that

defense counsel did not discuss with him "the possibility of

taking a plea," and that he "would have pled guilty to the

misdemeanor in order to avoid the felony on [his] record." The

defendant failed to submit any evidence tending to prove that

"the prosecutor would have offered him a favorable plea

bargain." Marinho, 464 Mass. at 130. Even if the defendant's

trial counsel and the prosecutor refused to attest to the

availability of a plea agreement, the defendant's postconviction

counsel could have filed an affidavit presenting such refusal.

See Upton, 484 Mass. at 163. "[T]he silence betrays a 'very

telling omission' confirming the judge's finding that the

defendant's motion did not raise a substantial issue." Id.,

quoting Goodreau, 442 Mass. at 354. The judge did not abuse her

discretion in denying the defendant's motion for new trial

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without conducting an evidentiary hearing. See Upton, supra at

162-163.

Order denying motion for a
required finding of not
guilty and/or for new trial
affirmed.

By the Court (Meade,
Ditkoff & Hershfang, JJ. 3),

Clerk

Entered: July 21, 2025.

3 The panelists are listed in order of seniority.

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