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-1042

COMMONWEALTH

vs.

MATTHEW B. VAILLETTE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court, during

which the judge denied the defendant's motion for a required 

finding of not guilty, the defendant was convicted of disorderly 

conduct, G. L. c. 272, § 53. We affirm.

Background.1 On December 8, 2022, a Leominster resident 

(resident) was tending to his Frosty the Snowman Christmas 

decoration in his front yard. The defendant, a complete 

stranger, was walking down the opposite side of a public street 

and screamed "fucking racist" at the resident three to four 

times. The resident told the defendant to move along. Instead, 

1 The facts are stated in the light most favorable to the 

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

(1979).
2

the defendant stopped and turned towards the resident, who told 

the defendant not to come near him or on his property. The 

defendant crossed the street and stepped onto his driveway. The 

resident warned that if the defendant took a step onto his 

property, he would release his dog. The defendant "kind of 

laughed" and giggled and walked closer to him, though no closer 

than twenty-five feet. The resident testified that "[t]he 

second his foot hit my driveway," his dog let out "a lion's 

roar," causing the defendant to "beat feet" down the road. The 

resident felt threatened and described the interaction as 

"[a]ggravating." The entire interaction was approximately six 

to seven minutes.

The resident saw the defendant stop at a neighbor's house 

about one hundred to one hundred and fifty feet away and heard 

him yell the same thing he had yelled at the resident. The home 

belonged to an older couple and the resident knew they were 

home. Concerned for his neighbors, he called the police. 

Nobody else was around.

Officer Shane Crawford spoke with the resident, and then 

located the defendant on a nearby street. After a discussion in 

which the defendant told the officer that the resident 

threatened him, the officer informed the defendant that he would 

be summonsed for disorderly conduct.
3

Discussion. A person engages in disorderly conduct if the 

person "with purpose to cause public inconvenience, annoyance or 

alarm, or recklessly creating a risk thereof, engaged in 

fighting or threatening, or in violent or tumultuous behavior or 

created a hazardous or physically offensive condition by any act 

which serves no legitimate purpose of the actor" (quotation and 

citation omitted). Commonwealth v. Accime, 476 Mass. 469, 472-

473 (2017).

1. Prohibited behavior. Fighting or threatening conduct 

"involves the use of physical force or violence or any threat to 

use such force or violence if that threat is objectively 

possible of immediate execution." Commonwealth v. A Juvenile, 

368 Mass. 580, 597 (1975). "Vulgar, profane, offensive or 

abusive speech is not, without more, subject to criminal 

sanction." Id. at 589. However, threatening behavior can 

consist of, as it did here, "a comment or act coupled with an 

aggressive move toward the victim." Commonwealth v. Cahill, 64 

Mass. App. Ct. 911, 911 (2005), rev'd on other grounds, 446 

Mass. 778 (2006). When faced with the defendant screaming 

"fucking racist" multiple times, and then stepping onto the 

resident's driveway after being requested to leave, a trier of 

fact could reasonably find that the evidence supported an 

apprehensive response by the resident, and thus could properly 
4

be understood as a threat. See Commonwealth v. Chou, 433 Mass. 

229, 234 (2001).2

2. Public alarm or annoyance. The defendant argues that 

the evidence was insufficient to show that he caused any public 

alarm where nobody else was nearby.

The Commonwealth need only show that the defendant's 

conduct "was likely to have had an impact upon persons in an 

area accessible to the public." Commonwealth v. Mulvey, 57 

Mass. App. Ct. 579, 583 (2003). "Public is defined as affecting 

or likely to affect persons in a place to which the public or a 

substantial group has access" (quotation and citation omitted). 

Id. at 582. "The public element of the offense is readily met 

in cases where the proscribed conduct takes place on public 

streets." Id. Here, the defendant's conduct took place on a 

public street and affected the resident and potentially the 

elderly neighbors. 

3. Intent. The Commonwealth must establish that the 

defendant either intended to cause public inconvenience, 

2 As threatening behavior is sufficient to satisfy the first 

prong of the crime of disorderly conduct, we need not address 

whether the behavior was tumultuous. Additionally, where, as 

here, the Commonwealth seeks to rest its case primarily on proof 

that the defendant engaged in tumultuous or threatening 

behavior, it need not prove that the defendant's conduct served 

no legitimate purpose. Commonwealth v. Sinai, 47 Mass. App. Ct. 

544, 548 (1999).
5

annoyance or alarm, or recklessly created a risk of public 

inconvenience, annoyance or alarm. Accime, 476 Mass. at 472-

473. Recklessness in this context means "conscious disregard of 

a substantial and unjustifiable risk of public nuisance." Id.

at 473, quoting Model Penal Code § 250.2 comment 2 at 328-329 

(Official Draft and Revised Comments 1980). "A person's 

knowledge or intent is a matter of fact, which is often not 

susceptible of proof by direct evidence, so resort is frequently 

made to proof by inference from all the facts and circumstances 

developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 

173 (1980). When the defendant ignored the requests of the 

resident to move along, and instead approached him and stepped 

on his driveway and yelled and screamed at a second home such 

that the resident could hear him from one hundred feet away, a 

trier of fact could reasonably infer that the defendant 
6

recklessly created a risk of public inconvenience, annoyance, or 

alarm.

Judgment affirmed.

By the Court (Henry, Grant & 

D'Angelo, JJ.3),

Clerk

Entered: August 30, 2024.

3 The panelists are listed in order of seniority.