Commonwealth v. Brian A. Leao.

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-842

COMMONWEALTH

vs.

BRIAN A. LEAO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant, Brian Leao, was

convicted of one count of animal cruelty, G. L. c. 272, § 77.

The Commonwealth concedes, and we agree, that the improper

admission of hearsay statements prejudiced the defendant.

Because the Commonwealth adduced sufficient evidence to support

a conviction, we vacate the conviction and remand for further

proceedings.

Background. On November 28, 2021, Grafton police Sergeant

Michael Swift arrived at the home the defendant and his mother

shared. Swift saw a dog locked in a car; the dog was calm and

there was white or yellowish insulation foam on the dog's fur.

The defendant was bleeding from dog bites to his left forearm
and stomach. Swift was permitted to testify that the

defendant's mother stated it was the defendant's fault, not the

dog's. Defense counsel objected on hearsay grounds. The judge

overruled the objection because the mother was going to testify

later. Swift then testified to the following statements the

defendant's mother made about the incident.

The defendant and his mother argued when the defendant

began spraying insulation foam in her foyer and on her front

door. The argument upset the dog and the defendant sprayed the

dog with the foam. The defendant then "[g]rabbed the collar to

the dog[,] picking the dog up and choked, ultimately choking the

dog." While "being strangulated," the dog bit the defendant on

the forearm. The defendant then released the dog.

During Swift's testimony, the Commonwealth entered two 911

calls into evidence, one made by the defendant's mother and one

made by the defendant.1 Defense counsel did not object to the

admission of the 911 calls. In one of them, the mother stated

that the defendant had "gone a little cuckoo," that he had

"provoked the dog," and the dog bit him.

1 We obtained an eighteen-minute audio file of 911 calls
from the Commonwealth and were advised that only the first five
minutes were admitted and played to the jury, though the first
call was between animal control and the Grafton police
dispatcher.

2
The Commonwealth next called the defendant's mother to

testify. She admitted calling the Grafton police and saying

that the dog was biting her son but denied telling the police

that the defendant had aggravated the dog. After the audio of

the mother's 911 call was played to impeach her,2 she admitted

telling the police that the defendant provoked the dog, and had

gone "kind of cuckoo," but said "there was more to the story."

The defendant's mother also testified that she did not recall

telling Swift that it was the defendant's fault that the dog bit

him.

Animal control officer Melinda Mackendrick also testified

to statements the defendant's mother made about the incident.3

Mackendrick stated that the defendant's mother told her that at

some point an altercation began, the defendant sprayed the dog,

and the dog bit the defendant.

The trial transcript reads "Audio played." When playing
2

the audio, the prosecutor did not specify for the record which
exhibit or part of an exhibit was being played. From the
transcript, we infer that the prosecutor replayed the audio of
the mother's 911 call. As with the first time the call was
played, defense counsel did not object or request a limiting
instruction.

We note that there was no objection by defense counsel,
3

though the judge had already ruled that the Commonwealth could
offer out-of-court statements by the defendant's mother because
she was testifying at trial.

3
At the close of the Commonwealth's case, defense counsel

moved for a required finding of not guilty, which the trial

judge denied.

The defendant called one witness; he recalled his mother.

She admitted to telling the police that the defendant "was going

cuckoo" and that the dog was provoking the defendant. While she

was trying to get a can of spray foam from the defendant, the

defendant "was getting nibbles" from the dog. She said the

defendant had the dog in a restraint after the dog bit him. She

affirmed that she had told police the defendant was spraying

foam in the foyer of the house, but denied that she stated that

the defendant sprayed the dog. She also denied telling Swift

that the defendant strangled the dog.

After the jury returned a guilty verdict, the defendant

moved for a required finding of not guilty notwithstanding the

verdict. The trial judge denied that motion.

Discussion. 1. Motions for a required finding of not

guilty. We review the denial of a motion for a required finding

of not guilty to determine "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. Tavares, 484

Mass. 650, 655 (2020), quoting Commonwealth v. Cole, 473 Mass.

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317, 334 (2015). "[I]n determining the sufficiency of the

evidence, we include evidence improperly admitted."

Commonwealth v. Davis, 487 Mass. 448, 462 (2021), quoting

Commonwealth v. Bacigalupo, 455 Mass. 485, 490 (2009).

The defendant argues that the judge erred in denying his

motions for a required finding because the Commonwealth

presented no evidence that the defendant's actions were "plainly

of a nature to inflict unnecessary pain," (citation omitted),

Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 803 (2020), and

that the defendant merely defended himself against an unruly

dog. Taking the evidence in the light most favorable to the

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979), including improperly admitted hearsay, a jury could have

found that the defendant sprayed foam insulation on the dog,

grabbed the dog by the collar, and strangled the dog before the

dog bit him. On this evidence, a reasonable jury could conclude

that the defendant inflicted "severe pain . . . upon an animal

. . . without any justifiable cause" (quotation and citation

omitted). Commonwealth v. Daly, 90 Mass. App. Ct. 48, 55

(2016). See Commonwealth v. Szewczyk, 89 Mass. App. Ct. 711,

717 (2016) (sufficient evidence of animal cruelty where

defendant shot dog with pellet gun to chase it off his

property).

5
Further, the Commonwealth's case did not deteriorate after

the defendant presented his case. See Commonwealth v. Gomez,

450 Mass. 704, 710 (2008). Though the defendant's mother denied

that she had told Swift that the defendant provoked the dog then

strangled her by the collar, where "the defendant's evidence at

trial turned solely on the credibility of his witnesses," the

Commonwealth's case cannot deteriorate. Commonwealth v. Platt,

440 Mass. 396, 404 (2003). "The weight and credibility of the

evidence is the province of the jury." Gomez, supra at 711.

2. Hearsay. The defendant further argues, and the

Commonwealth concedes, that it was error to admit Swift's

testimony about statements the defendant's mother made to him at

the home because they were hearsay not subject to an exception,

and that such error prejudiced the defendant. We agree.

"Hearsay is an out-of-court statement offered to prove the

truth of the matter asserted in the statement." Commonwealth v.

Keown, 478 Mass. 232, 245 (2017), cert. denied, 583 U.S. 1139

(2018). Hearsay is not admissible unless it is subject to an

exception. Commonwealth v. Wardsworth, 482 Mass. 454, 462

(2019). See Mass. G. Evid. §§ 801–804 (2024). The statements

the defendant's mother made to Swift at the home were offered

for their truth and, on this record, are not subject to an

exception. That the mother was going to testify later in the

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trial is not an exception to the rule against hearsay. See

Mass. G. Evid. §§ 801-804; cf. Mass. G. Evid. § 801(d)(1)(A)

(where declarant testifies and is subject to cross examination

about prior statement, statement is not hearsay if it "(i) is

inconsistent with the declarant's testimony; (ii) was made under

oath before a grand jury, or at an earlier trial, a probable

cause hearing, or a deposition, or in an affidavit made under

the penalty of perjury in a G. L. c. 209A proceeding; (iii) was

not coerced; and (iv) is more than a mere confirmation or denial

of an allegation by the interrogator"); Mass. G. Evid. § 803

(describing hearsay exceptions where availability of declarant

is immaterial). The Commonwealth rightly concedes that the

admission of the hearsay was prejudicial error. We agree.

The evidence that the defendant intentionally sprayed the

dog with foam came from Swift's testimony and the 911 call.

Further, the only evidence that the defendant strangled the dog

before being bitten came from Swift's testimony about what the

mother said. Because "the evidence was not overwhelming, the

[improper testimony] went to the heart of the case, and no

specific curative instructions were given," the admission of

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improper hearsay evidence was prejudicial. Commonwealth v.

Santiago, 425 Mass. 491, 500 (1997).4

Judgment vacated.

Verdict set aside.

By the Court (Henry, Grant &
D'Angelo, JJ.5),

Clerk

Entered: September 4, 2024.

4 Given our remand for a new trial, we need not reach the
defendant's challenge to the judge's use of dictionary
definitions to respond to a jury question about the meanings of
the words "torture" and "torment" in G. L. c. 272, § 77.
Neither term is defined by the statute. We note that where a
term in a statute is not explicitly defined, we "must interpret
the words of the statute according to their usual and accepted
meaning." Commonwealth v. Zubiel, 456 Mass. 27, 31 (2010).
Further, while we agree that the term "torment" has not been
defined in the context of G. L. c. 272, § 77, the Supreme
Judicial Court has offered guidance on the term as it is used in
the "dog bite statute," G. L. c. 140, § 155. See Malchanoff v.
Truehart, 354 Mass. 118, 123 (1968) (torment "connote[s] the
doing of acts designed to annoy and irritate the person or
animal to whom or which the acts are directed"); Koller v.
Duggan, 346 Mass. 270, 273 (1963).

5 The panelists are listed in order of seniority.

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