COMMONWEALTH vs. RONALD A. HOWARD.

WILKINS, J. The defendant was convicted of robbery while "armed with a dangerous weapon." G. L. c. 265, Section 17, as appearing in St. 1952, c. 406, Section 1. The evidence did not warrant a finding by the jury that the defendant in fact possessed any dangerous weapon. The only evidence concerning a gun was that, when the defendant approached the victim on Commonwealth Avenue in Boston, in the early hours of November 20, 1976, he had his right hand in his jacket, and he said, "Walk straight, look down, and don't try anything foolish or I'll pull the trigger."

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The defendant moved for a directed verdict on so much of the robbery indictment as charged robbery while armed with a dangerous weapon. [Note 1] The judge denied the motion for a directed verdict. We granted the defendant's application for direct appellate review.

The judge charged the jury, over the defendant's objection, that the Commonwealth need not prove the existence of a weapon, but that, if the defendant uttered words and indicated by the position of his body and his arms that he had a gun, "the law will take him at his word that he did have gun." In so charging the jury, the judge relied on language in Commonwealth v. Delgado, 367 Mass. 432, 437 (1975), which, standing alone, could fairly be understood as permitting a conviction for robbery with a dangerous weapon solely on the basis that the defendant robber had spoken words indicating that he had a gun, although no gun was ever seen or found. In the Delgado case, we did not endorse the concept that a jury must presume the existence of a gun from the robber's words: "Hold him or I'm going to shoot him." Id. at 436. Rather, we permitted the jury to infer the existence of a gun by saying: "[T]he jury could reasonably conclude that the defendant should be taken at his word." Id. at 437. As we point out later, the factual circumstances in the Delgado case were different from those in this case.

We conclude that where a robber had no instrumentality at all, although he said he had a gun, a conviction of armed robbery is not warranted. In short, the statute concerning armed robbery (G. L. c. 265, Section 17) should not be read as including a robbery while apparently armed with a dangerous weapon when in fact the defendant was unarmed. In the case before us, the conviction of armed robbery must be reversed, and the case remanded for sentencing on the crime of unarmed robbery. [Note 2]

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As we have said, the victim was on Commonwealth Avenue when the defendant came up to her with his hand in his jacket and uttered the words quoted above. They walked down Commonwealth Avenue for a while, until the defendant told her to go up some stairs and into an apartment building. After they entered the first set of doors, the defendant demanded the victim's wallet, and she gave it to him. When an occupant of a first floor apartment opened her apartment door and saw the victim and the defendant, the defendant told the victim to leave the apartment building, and they did. They walked to the corner of Dartmouth Street and Commonwealth Avenue, turned right, and again right, into an alley. The defendant then demanded that the victim empty her pockets, and she gave him approximately $1.50 in change. At this point, a police cruiser arrived from one end of the alley, and a second cruiser arrived shortly thereafter from the other end of the alley. The defendant was arrested at the scene. No gun was found on the defendant or in the vicinity where he was arrested. The victim never saw a gun. The jury returned verdicts of guilty of kidnapping and armed robbery.

The evidence would not have warranted the jury in finding, on the basis of a reasonable inference and beyond a reasonable doubt (Commonwealth v. Latimore, 378 Mass. 671, 677-678 [1979]), that the defendant had a gun. No gun

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was seen. No gun was found on the defendant or at the place where he was arrested. They could not reasonably infer that the defendant had a gun, but disposed of it before the police arrived. The defendant would have had no reason to dispose of a weapon, if he had had one, before the police suddenly arrived and arrested him.

It is the absence of any basis to infer that the defendant may have had a gun that distinguishes this case from Commonwealth v. Delgado, supra. As appears from the opinion of the Appeals Court in the Delgado case ( 2 Mass. App. Ct. 865, 866 [1974]), Delgado and three other men entered a grocery store. During the confrontation, the night manager of the grocery store was held at knife point. Delgado said, "Hold him or I'm going to shoot him." No gun was seen. After the money was taken, the four men ran out of the store. As we noted in our opinion, when the case was before us on further appellate review, no gun was found on Delgado or in the area where he was apprehended. Commonwealth v. Delgado, 367 Mass. at 436. In those circumstances, it was possible that Delgado had a gun and disposed of it. We concluded that "the jury could reasonably conclude that the defendant should be taken at his word." Id. at 437. In the Delgado case, the jury would have been warranted in finding beyond a reasonable doubt that Delgado had a gun.

We do not construe the Delgado case as eliminating the statutory requirement that a defendant have a dangerous weapon but only as holding that the jury were warranted in inferring beyond a reasonable doubt that, in the circumstances, Delgado had a gun. In the case before us, the defendant's statement alone, implying that he had a gun, where no gun was seen or found and he had no opportunity or reason to dispose of it, cannot be sufficient to warrant a conviction of robbery while "armed with a dangerous weapon."

If a robbery committed while apparently armed with a dangerous weapon is to be equated with armed robbery, the Legislature may make the appropriate statutory amendment.

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We should not construe G. L. c. 265, Section 17, a criminal statute, so loosely as to eliminate the requirement that there be some instrumentality which presents "an objective threat of danger to a person of reasonable and average sensibility." Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975). [Note 3] The crime of armed robbery, an aggravated form of robbery, is based in part on the potential for injury that arises from the possession of a dangerous weapon. When there is no such weapon, the potential is absent. The victim's apprehension is, of course, likely to be the same whether the defendant had a gun or only said he had a gun, but did not. The nature of any threats and a victim's apprehension may be relevant factors in sentencing a defendant on his conviction of unarmed robbery, but, in the absence of evidence warranting an inference beyond a reasonable doubt that a defendant, in fact, had some instrumentality in his possession, there can be no conviction of robbery while "armed with a dangerous weapon."

The judgment in the kidnapping case is affirmed. The robbery case is remanded to the Superior Court for the entry of a verdict of guilty of unarmed robbery and for the imposition of sentence for that offense.

So ordered.

O'CONNOR, J. (concurring). I agree that the evidence would not have warranted a finding by a jury that the defendant, in fact, possessed a dangerous weapon, and that a conviction of armed robbery was not warranted. I do not agree, however, that a defendant's statement, during a robbery, that he has a gun, together with evidence that he

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could have disposed of one, warrants a finding that he actually had a gun, nor do I agree that is the holding of Commonwealth v. Delgado, 367 Mass. 432 (1975). The holding in Delgado was not that the evidence warranted a finding that the defendant actually had a gun, but that the defendant's words, "Hold him or I'm going to shoot him," were the legal equivalent of possession, making the defendant guilty of armed robbery, regardless of whether he actually had a gun.

I

The defendant's statement to the victim, "Walk straight, look down, and don't try anything foolish or I'll pull the trigger," and his gestures, were insufficient to satisfy a rational trier of fact beyond a reasonable doubt that he actually had a gun. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). As this court stated in Latimore, "[i]n reviewing the denial of motions for directed verdicts in criminal cases, we have frequently said that `we must consider and determine whether the evidence, in its light most favorable to the Commonwealth . . . is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged.' Commonwealth v. Sandler, 368 Mass. 729, 740 (1975) . . . . Such statements are elliptical and they represent but one part of the required test of the sufficiency of the evidence to permit submission of a case to the jury. Additionally, the evidence and the inferences permitted to be drawn therefrom must be of `sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt,' as required by Commonwealth v. Cooper [ 264 Mass. 368, 373 (1928)], and our other decisions which are in accord therewith." Id. at 676-677. We held that "the jury could reasonably infer in light of common experience that the defendant intentionally killed the victim after deliberate premeditation." Id. at 678. In light of common experience, a defendant's statement during a robbery that he has a gun, threatening as such a statement is, does not warrant an inference beyond a reasonable doubt that in fact he has one.

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Common experience suggests that a robber who does not have a weapon may say he has one in order to facilitate the robbery. This is unlike a defendant's statement, after the crime has been completed, that at the time of the crime he had a weapon. See Commonwealth v. Fiore, 364 Mass. 819, 822 (1974); Commonwealth v. Kimball, 321 Mass. 290 (1947). Common experience tells us that ordinarily such an admission is not made unless it is true.

Even if the defendant has moved from the crime scene before being apprehended by the police, so that if he had a gun he could have disposed of it, a jury would not be warranted in finding that he had a gun. This is because evidence of such a circumstance is irrelevant; it lacks probative worth. "To have probative worth the evidence offered must tend to show, with a fair degree of probability, the fact for which it is offered as proof." P.J. Liacos, Massachusetts Evidence 408 (5th ed. 1981). A defendant's opportunity to dispose of a gun does not tend to show with any degree of probability that he had one, because it is as consistent with nonpossession as possession. This point becomes clearer when set in another context. If one is trying to prove that another had $1 million a year ago, it would not be relevant to prove that a person could spend this sum in one year. The opportunity to spend is as consistent with nonpossession as possession. Thus, if one is trying to prove that another had a gun at an earlier time, it is not relevant to prove that he could have disposed of it. On the other hand, evidence of a lack of opportunity would be relevant to proving nonpossession, because if no gun is found, such evidence does show with a fair degree of probability that no weapon was present.

The court distinguishes the present case from Commonwealth v. Delgado, 367 Mass. 432 (1975), on the ground that in Delgado, unlike the present case, there was evidence that the defendant moved from the scene of the crime before being apprehended. The court concludes that, on the basis of that additional evidence, we held in Delgado that the evidence warranted a finding by a jury that the

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defendant actually had a gun. That is an improper construction of Delgado. Nowhere in the Delgado opinion did this court mention that the defendant had moved from the scene of the crime before being apprehended. The court now must refer to the opinion of the Appeals Court in Delgado to discover that Delgado and his accomplices ran from the scene of the crime. Supra at 610. It is reasonable to conclude that this court omitted that fact from its opinion in Delgado because it considered that fact insignificant.

In Delgado, 367 Mass. 432, 435-436 (1975), we said: "To a large extent the issues raised as to the armed robbery indictment are answered by our decision in Commonwealth v. Tarrant, [367 Mass.] 411 (1975), wherein we apply the apparent ability standard in defining a dangerous weapon for purposes of armed robbery (G. L. c. 265, Section 17), leaving to the jury `whether the instrumentality under the control of the perpetrator has the apparent ability to inflict harm, whether the victim reasonably so perceived it, and whether the perpetrator by use of the instrumentality intended to elicit fear in order to further the robbery.' Commonwealth v. Tarrant, supra at 417. The twist in this case is that there was no direct evidence of a gun, no gun was seen by the store manager, and no gun was found on the defendant's person or in the area where the defendant was apprehended. Thus, the only indication of the presence of a gun was the defendant's statement, `Hold him or I'm going to shoot him.' The defendant submits that even if the apparent ability standard of the Tarrant case is the law, it would be error to extend that reasoning to a case such as this where, in effect, the gun is `present' only by verbal assertion" (emphasis supplied). Somewhat later in the Delgado opinion this court said: "The words spoken by the defendant in this encounter were clearly informational, warning the victim store manager that the defendant would and could shoot and thus impliedly informing the victim of the presence and possession of a gun. In our opinion this was clearly sufficient, particularly in the circumstances of an ongoing robbery, to cause the victim reasonable apprehension with

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respect to his physical security. Hence the crime as charged was robbery `with a dangerous weapon, to wit: a gun,' and the jury could reasonably conclude that the defendant should be taken at his word" (emphasis supplied). Id. at 437.

"Hence" means "therefore" or "because of a preceding fact or premise." Webster's Third New Int'l Dictionary 1056 (1961). Our language in Delgado, fairly construed, means that because the defendant's words reasonably caused the victim to fear the use of a gun, the robbery was robbery "with a dangerous weapon, to wit: a gun," even though the defendant did not actually have a gun. As will be seen below, this was but a natural extension of the rule laid down in Commonwealth v. Henson, 357 Mass. 686, 693 (1970), and Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975). The Delgado opinion must be read as a whole. It logically progress to the conclusion expressed by the words, supra at 437: "Hence, the crime as charged was robbery `with a dangerous weapon, to wit: a gun.' " This can only mean that the crime as charged was armed robbery as a matter of law. The words, "and the jury could reasonably conclude that the defendant should be taken at his word," in the context of the entire opinion, are mere surplusage. In my opinion, we have never held, and we should not announce now, that a defendant's statement, in the course of a robbery, that he has a gun, together with evidence that he could have disposed of one, warrants a finding that he actually had a gun.

II

The court states that "[i]f a robbery committed while apparently armed with a dangerous weapon is to be equated with armed robbery, the Legislature may make the appropriate amendment. Supra at 610-611. [Note Concur-1] I agree. However,

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the court goes on to say that "[w]e should not construe G. L. c. 265, Section 17, a criminal statute, so loosely as to eliminate the requirement that there be some instrumentality which presents `an objective threat of danger to a person of reasonable and average sensibility,' Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975)," footnoting Commonwealth v. Henson, 357 Mass. 686, 693 (1970). Supra at 611. In other words, we cannot read Section 17 "so loosely" as to include a robber "apparently armed" with a dangerous weapon, but can read it so loosely as to include a robber armed with an "apparently dangerous" weapon. The words of the statute, "armed with a dangerous weapon," do not permit such a reading.

We held in Commonwealth v. Henson, 357 Mass. 686 (1970), that for assault by means of a dangerous weapon the instrumentality used by the defendant need not be capable of inflicting harm "if the evidence shows an apparent ability to accomplish the battery by means of the particular weapon used." Id. at 693. In Commonwealth v. Tarrant, 367 Mass. 411 (1975), we held that to prove the crime of armed robbery, the Commonwealth "was not required to have affirmatively demonstrated that the [instrumentality] was actually dangerous (Commonwealth v. Henson, supra,) or was in fact used in a harm-inflicting manner, since the proper inquiry is whether the instrumentality is such as to present an objective threat of danger to a person of reasonable and average sensibility." Id. at 415-416. It was a small step to take, and we took it in Delgado to hold that, within the meaning of G. L. c. 265, Section 17, one who pretended to be armed was actually armed. The court announces today that a robber's oral threat in the course of a robbery that he is carrying a weapon that is capable of inflicting serious bodily harm, in the absence of some instrumentality, is not enough to constitute armed robbery, thereby effectively overruling Delgado (as I construe that case). However,

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the court holds, a robber's threat by means of an instrumentality that is incapable of inflicting serious harm, is enough, thereby reaffirming Henson and Tarrant.

In my opinion, neither mere words nor an instrument incapable of inflicting serious harm, used to threaten a robbery victim, is sufficient under Section 17 to elevate unarmed robbery to armed robbery. I fail to see a good reason to distinguish between a statement plus a finger in a pocket and a statement plus a pocket comb or a pen. Yet, as the law is set out today, a robber who effectively simulates a gun by means of a comb is "armed with a dangerous weapon," whereas one who uses his finger with the same result is not.

Criminal statutes must be strictly construed. Commonwealth v. Devlin, 366 Mass. 132, 137 (1974). Commonwealth v. Federico, 354 Mass. 206, 207 (1968). [Note Concur-2] Just as we must not construe "being armed with a dangerous weapon" to mean "being or apparently being armed with a dangerous weapon," so, too, we must not construe it to mean "being armed with a dangerous or apparently dangerous weapon."

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Consequently, in addition to overruling Delgado, I would overrule Tarrant. Similarly, we should not read G. L. c. 265, Section 15B, which proscribes assault "by means of a dangerous weapon," to include assault by means of an apparently dangerous weapon. Therefore I would also overrule Henson. To the extent that Commonwealth v. Appleby, 380 Mass. 296 (1980), and Commonwealth v. Perry, 6 Mass. App. Ct. 531 (1978), are at variance with this concurrence, I would overrule them. I would announce that henceforth, unless the Legislature amends G. L. c. 265, Section 17, robbery is unarmed unless he defendant possesses an inherently dangerous instrumentality, Commonwealth v. Mowry, 11 Allen 20 (1865), or an instrumentality that was used to produce serious bodily harm, see Commonwealth v. Farrell, 322 Mass. 606, 615 (1948), or the attempt, or threat, ingredient of the robbery was by means of an instrumentality capable of producing serious bodily harm in the manner attempted or threatened. [Note Concur-3] I would announce that henceforth, unless the Legislature amends G. L. c. 265, Section 15B, for assault "by means of a dangerous weapon," the attempted, or threatened, battery must be by means of an instrumentality that is inherently dangerous or is capable of producing serious bodily harm in the manner attempted or threatened. To go beyond such construction is to violate the rule of strict construction of criminal statutes.

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Nolan, J. (dissenting). I dissent. The issue is a narrow one, i.e., the legal sufficiency of the evidence tending to prove that the defendant had a gun when he robbed the victim.

The defendant, with his hand in his jacket, said that he would "pull the trigger" if the victim did not comply with his demand for money. This declaration of intent or threat in the context of this case is an evidentiary admission from which the jury may infer that he was then carrying a gun. See P.J. Liacos, Massachusetts Evidence 275-281 (5th ed. 1981). At the least, such a statement, if the jury believe that he made it, should be regarded as "enough evidence that could have satisfied a rational trier of fact . . . beyond a reasonable doubt" that the defendant had a gun. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). A different case is presented (and a different result is demanded) if one who declares that he has a gun is apprehended immediately after such declaration and found to be unarmed. This is not our case, however. Here, he could have disposed of the gun between the vestibule and the alley. For the purpose of ruling on a motion for directed verdict (now denominated a motion for required finding of not guilty, Mass. R. Crim. P. 25 [b], 378 Mass. 896 [1979]), it is not controlling that the victim never saw the gun and that no gun was found at the scene. In Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975), there was no direct evidence of a gun, a gun was not seen by the victim, and no gun was found on the defendant's person or at the scene of the defendant's arrest. The only evidence of the presence of a gun was the defendant's statement: "Hold him or I'm going to shoot him." Id. at 436. On the issue whether this was sufficient evidence on which to find that the defendant had a gun, this court said "that the defendant should be taken at his word." Id. at 437. So, too, in the present case, the jury should have been permitted to take the defendant at his word that he had a gun.