Commonwealth v. Eric Vila.

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-1377

COMMONWEALTH

vs.

ERIC VILA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a Superior Court jury

trial of witness intimidation, G. L. c. 268, § 13B; vandalizing

property, G. L. c. 266, § 126A; and breaking and entering into a

building in the nighttime with the intent to commit a felony,

G. L. c. 266, § 16.1 On appeal, the defendant argues that the

evidence was insufficient as to the breaking and entering charge

and that the witness intimidation conviction must be vacated

because the Commonwealth presented alternative factual theories

of the commission of the offense, a specific unanimity

1The defendant was acquitted of two other charges and,
after the jury reported that it was deadlocked on the remaining
charges, the Commonwealth nol prossed those remaining charges.
instruction was not provided, and the jury did not unanimously

agree on at least two of the factual theories. We affirm.

Background. We summarize the facts in the light most

favorable to the Commonwealth. See Commonwealth v. Lopez, 484

Mass. 211, 211 (2020). The victim and the defendant were in a

relationship for three to four years but were no longer dating

by February 2023. On February 1, 2023, the victim reported to

the police that the defendant had damaged the door frame to the

front door of her apartment and had damaged the door to her

garage when the defendant took her car from the garage to the

apartment parking lot without her permission.

On August 4, 2023, a trial was scheduled regarding the

February incident. Around 12:45 A.M. on the morning of the

trial, the defendant approached the victim while she was in her

car outside her apartment building. The defendant pleaded to

talk with her to "fix things" and "work something out." The

defendant forced his way into the driver's seat of the car; the

victim, who had been in the driver's seat, crawled to the

passenger side and got out of the vehicle. After the victim

told the defendant to "go home" and "leave it alone," the

defendant got out of the car, followed the victim as she moved

away from him, grabbed her, and hit her in the face.

The victim went into her apartment, locked her door, and

called a friend. The victim noticed that someone had ripped

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down two Ring cameras inside her apartment. She viewed the Ring

footage from earlier and saw the defendant walk from her balcony

and through her living room. The victim believed that the

balcony door was open so that her dog could go in and out during

the summer. The victim did not see any activity on the Ring

video showing the front door.

Discussion. 1. Breaking and entering indictment. We

review the sufficiency of the evidence to determine "whether,

after viewing the evidence in the light most favorable to the

[Commonwealth], any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(emphasis and citation omitted). Commonwealth v. Latimore, 378

Mass. 671, 677 (1979). "If, from the evidence, conflicting

inferences are possible, it is for the jury to determine where

the truth lies, for the weight and credibility of the evidence

is wholly within their province." Commonwealth v. Lao, 443

Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007), and 460 Mass.

12 (2011). In addition, "[c]ircumstantial evidence is competent

to establish guilt beyond a reasonable doubt . . . and the

reasonable inferences drawn from such evidence need not be

necessary or inescapable, only reasonable and possible"

(quotations and citations omitted). Commonwealth v. MacCormack,

491 Mass. 848, 854 (2023).

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The elements of breaking and entering into a building in

the nighttime with the intent to commit a felony are

"(1) breaking and (2) entering a building . . . belonging to

another (3) at night, (4) with the intent to commit a felony."

Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007). On appeal,

the defendant argues that the Commonwealth failed to prove that

a "breaking" took place.

The statutory element of a breaking "has long been

understood to include all actions violating the common security

of a dwelling" (quotation and citation omitted). Commonwealth

v. Burke, 392 Mass. 688, 689 (1984). The Supreme Judicial Court

(SJC) has concluded that "entry through an open window not

apparently intended, or useable in due course, as a means of

entry" constitutes a breaking, as "[t]he security of the house

in such a case is at least as much invaded as when a closed

unlocked door is opened." Commonwealth v. Tilley, 355 Mass.

507, 509 (1969). Although this statement was dictum, this court

has since squarely reaffirmed it. See Commonwealth v. Hall, 48

Mass. App. Ct. 727, 731 (2000) ("the very fact that the [SJC]

took some pains to pull away from more mechanistic views of a

'breaking' assures us that the Tilley court intended to state

the law in respect of entry by an open window that one cannot

walk through").

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Here, it is obvious that the victim did not intend that the

third-floor balcony door would be an entrance to her apartment.

The balcony is not reachable from a fire escape or outdoor

staircase, nor is it attached to a neighbor's balcony. The fact

that the victim may have left the balcony door open so her dog

could go outside on the balcony does not change the fact that

the balcony door is not intended as an access way to the

apartment. In order to enter the victim's front door, one needs

a fob to enter the building and a code to open the front door.

Based on the video and the broken ring cameras, the jury

could have inferred that the defendant somehow accessed the

victim's private third-floor balcony and entered the apartment

through the balcony door. Viewing the evidence in the light

most favorable to the Commonwealth, the jury could have

permissibly inferred that the defendant's entry was a breaking.

See Latimore, 378 Mass. at 677-678.

2. Witness intimidation indictment. The defendant did not

object to the absence of a specific unanimity instruction, nor

did he request one. Since this claim is being raised for the

first time on appeal, our review is limited to whether the

absence of such an instruction created a substantial risk of a

miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.

App. Ct. 635, 640 (2022).

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A judge's "failure to give a specific unanimity instruction

sua sponte does not automatically give rise to a substantial

risk of a miscarriage of justice where . . . the Commonwealth

presented evidence sufficient to withstand a motion for a

required finding of not guilty on each of the charged offenses."

Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719-720 (2007).2

To prove witness intimidation, the Commonwealth must prove that

the defendant "(1) willfully; (2) threatened, intimidated, or

harassed; (3) a witness in a criminal proceeding of any type;

(4) with the intent to impede or interfere with a criminal

investigation or proceeding" (quotation and citation omitted).

Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304 (2023).

Viewing the evidence in the light most favorable to the

Commonwealth, the jury could have found that the victim was a

potential witness at the defendant's trial regarding the

February incident and that on the day she was set to appear in

court for that case, the defendant broke into her apartment and

then confronted her at her car where he asked if they could "fix

things" and "work something out." The defendant forced his way

into the car; after the victim told him to "go home" and "leave

2 Generally, a defendant is only entitled to a specific
unanimity instruction when the Commonwealth proceeds on
alternative theories of guilt in which the same crime can be
committed. See Commonwealth v. Lonardo, 74 Mass. App. Ct. 566,
571 (2009). Here, the Commonwealth did not proceed on
alternative theories of witness intimidation.

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it alone," the defendant got out of the car, followed the

victim, and hit her in the face. Because any one of those acts

sufficed for the jury to find that the defendant was guilty of

witness intimidation, there was no substantial risk of a

miscarriage of justice.

Judgments affirmed.

By the Court (Meade,
D'Angelo & Tan, JJ.3),

Clerk

Entered: June 4, 2026.

3 The panelists are listed in order of seniority.

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