Commonwealth v. Amir Schajnovitz.

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

23-P-347

COMMONWEALTH

vs.

AMIR SCHAJNOVITZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of malicious destruction of property under $1,200,

in violation of G. L. c. 266, § 127. 1 On appeal, the defendant

argues that the Commonwealth failed to meet its burden of proof

because the property in question, a cell phone, belonged to him

and not to his then wife as the Commonwealth alleged at trial.

He also argues that the judge abused his discretion by admitting

photographs of the damaged phone in evidence, and by denying his

1The defendant was found not guilty of an additional charge
of assault and battery on a family or household member, in
violation of G. L. c. 265, § 13M, arising from the same incident
and the judge allowed the defendant's motion for a required
finding of not guilty on a charge of intimidation of a witness,
in violation of G. L. c. 268, § 13B.
request to introduce additional evidence after the trial had

concluded. 2 We affirm.

Background. At the time of the incident, the defendant was

living with his wife, N.S., and their three year old daughter in

an apartment in Framingham. The couple's relationship was

tense. They were in the process of divorcing, and the defendant

had become frustrated upon learning that N.S. recently had hired

an attorney. On July 3, 2020, the two had an argument which

began when the defendant became irritated over their daughter's

crying and then escalated to the point where the defendant

screamed in N.S.'s face, and then "head butted" her several

times. N.S. used her cell phone to video record the defendant,

which angered him further. The defendant then went to the

kitchen and retrieved a meat tenderizer, which he used to smash

the cell phone. N.S. took the baby and fled to the home of a

neighbor who called the police. Framingham Police Officer James

Green responded to the call and spoke with the defendant, who

2 In his reply brief, the defendant contends for the first
time that his statements to police on the day of the incident
should have been suppressed because he was not advised of his
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
This issue was not seasonably raised in a pretrial motion to
suppress under Rule 61 of the Rules of the Superior Court
(1980). See also Mass. R. Crim. P. 13, as appearing in 442
Mass. 1516 (2004). As a result, we do not have an adequate
basis on which we can address the claim. Nevertheless, based on
the evidence presented at trial, we discern no grounds for
suppressing the statements.

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stated that nothing had happened other than a loud argument.

When asked specifically by the officer how N.S.'s cell phone

became damaged, the defendant initially did not respond but then

"offered to buy her [ N.S.] a new one [phone]." Officer Green

described the cell phone as "beyond repair," and identified four

photographs of the cell phone which were admitted in evidence.

[Tr. 99]. At trial, N.S. testified that the cell phone was her

"personal phone."

The defendant, who proceeded pro se at trial, testified on

his own behalf. He denied hitting N.S. and claimed that the

altercation between them never became physical. According to

the defendant, he was the one who had initiated divorce

proceedings, and the argument that day concerned custody of the

couple's daughter. He claimed only "snatched" the cell phone,

and that the phone was his personal property which he had

obtained from a medical consulting company he formerly owned.

Discussion. 1. Sufficiency of the evidence. As relevant

here, the crime of malicious destruction of property has four

essential elements: the defendant injured or destroyed the

property of another, did so willfully, and with malice, and the

value of the property injured or destroyed was less than $1,200.

See Commonwealth v. Deberry, 441 Mass. 211, 215 n.7 (2004). The

defendant's argument concerns only the first element. He claims

that the cell phone belonged to him and argues that because it

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is not a crime to destroy one's own property, his motion for a

required finding of not guilty should have been allowed.

In reviewing a denial of a motion for a required finding of

not guilty, we ask "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." Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979). Notwithstanding the defendant's argument to the

contrary, N.S.'s testimony is sufficient to have allowed the

jury to find beyond a reasonable doubt that the cell phone

belonged to her. See Commonwealth v. Santos, 100 Mass. App. Ct.

1, 3 (2021). To be sure, the jury was not required to credit

N.S.'s testimony; they could have rejected it and instead

credited the defendant's testimony that the cell phone belonged

to him. Here, however, as evidenced by the verdict, the jury

believed N.S.'s testimony. Furthermore, N.S.'s testimony was

corroborated, in part, by the defendant's statement to the

police in which he offered to purchase N.S. a new phone. The

jury could draw a reasonable inference that the defendant would

not offer to purchase N.S. a phone if the one he had destroyed

did not belong to her.

2. Admissibility of the photographs of the cell phone.

Four photographs depicting the cell phone after it had been

damaged were introduced in evidence. The defendant filed a

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motion in limine seeking to exclude the photographs on the

ground that they could not be authenticated. He now also claims

that the photographs were irrelevant, inflammatory, and

prejudicial. 3

First, the photographs were authenticated. As the

Commonwealth notes in its brief, Officer Green's testimony was

sufficient to establish that the photographs fairly and

accurately represented the condition of the phone when he

retrieved it from the defendant. See Commonwealth v. Figueroa,

56 Mass. App. Ct. 641, 646 (2002). Moreover, once the

photographs were properly authenticated, any argument regarding

their reliability went to the weight of the evidence, not its

admissibility. Commonwealth v. Meola, 95 Mass. App. Ct. 303,

313 (2019).

Second, the photographs were relevant as they corroborated

N.S.'s testimony and tended to prove an essential element of the

offense, that is, the destruction of property. It was well

within the discretion of the trial judge to determine that the

photographs were probative and not, as the defendant contends,

3 The Commonwealth argues that because the defendant did not
object to the admission of the photographs on this basis, our
review is limited to determining whether there was an error and,
if so, whether it created a substantial risk of a miscarriage of
justice. Commonwealth v. Brum, 492 Mass. 581, 587 (2023).
Given our conclusion there was no error, we need not decide
which standard of review applies in the circumstances presented.

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unduly prejudicial. Commonwealth v. Anderson, 445 Mass. 195,

208-209 (2005). Accordingly, there was no error.

3. Denial of request to reopen evidence. Lastly, the

defendant contends that the judge abused his discretion by

denying his request to reopen the evidence after both parties

had rested, so that he could introduce the cell phone itself.

We discern no abuse of discretion where, as here, the defendant

provided no explanation for his failure to introduce the phone

earlier, there was no witness present to authenticate the phone,

and the probative evidentiary value of the phone was minimal in

light of the fact that photographs of it were already in

evidence. See Commonwealth v. Moore, 52 Mass. App. Ct. 120, 126

(2001); Mass. G. Evid. § 611(f) (2023).

Judgment affirmed.

By the Court (Vuono, Shin &
Toone, JJ. 4),

Assistant Clerk

Entered: May 15, 2024.

4 The panelists are listed in order of seniority.

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