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22-P-710 Appeals Court

COMMONWEALTH vs. JEREMIAH WOODEN.

No. 22-P-710.

Essex. April 6, 2023. - January 12, 2023.

Present: Blake, Grant, & Smyth, JJ.

Assault by Means of a Dangerous Weapon. Assault and Battery on 

Certain Public Officers and Employees. Police Officer. 

Firearms. Resisting Arrest. License. Constitutional Law, 

Right to bear arms, Double jeopardy. Practice, Criminal, 

Double jeopardy, Duplicative convictions.

Indictments found and returned in the Superior Court 

Department on May 11, 2016. 

The cases were tried before Hélène Kazanjian, J. 

Michael A. Waryasz for the defendant.

Kathryn L. Janssen, Assistant District Attorney, for the 

Commonwealth.

BLAKE, J. Following a jury trial in the Superior Court, 

the defendant, Jeremiah Wooden, was convicted of two counts of 

assault by means of a dangerous weapon, a firearm (ADW), assault 

and battery on a police officer, carrying a firearm without a 
2

license as a level one armed career criminal under G. L. c. 269, 

§ 10G (a),1 and resisting arrest.2 On appeal, the defendant 

contends that the convictions of ADW are duplicative because the 

offenses occurred during one continuous and uninterrupted 

altercation and therefore, one of those convictions must be 

vacated and the case remanded for resentencing. As we are 

unpersuaded by this argument, we affirm the ADW, assault and 

battery on a police officer, and resisting arrest verdicts. We 

vacate the conviction and set aside the verdict on the charge of 

carrying a firearm without a license as a level one armed career 

criminal, pursuant to Commonwealth v. Guardado, 491 Mass. 666 

(2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass. 1 

(2023) (Guardado II). Accordingly, we remand for

reconsideration of the resentencing scheme.

Background. We recite the facts that the jury could have 

found.3 At approximately 6 P.M. on April 14, 2016, Salem police 

1 After the defendant was found guilty of carrying a firearm 

without a license, the defendant pleaded guilty to the level one 

armed career criminal enhancement.

2 The defendant was found not guilty of armed assault with 

intent to murder and one count of ADW.

3 Our review is hampered because the proceedings of the 

third day of trial were not recorded. The parties filed a 

stipulation pursuant to Mass. R. A. P. 8, as appearing in 481 

Mass. 1611 (2019), but the parties have not provided us with the 

trial judge's recollection of the proceedings on that date in 

order to reconstruct the record more fully.
3

officers Rafael Gonzalez and Brian St. Pierre were on patrol 

when Gonzalez noticed a dark-colored sport utility vehicle (SUV)

being driven by the defendant. Both Gonzalez and St. Pierre 

were familiar with the defendant and knew that there was an 

outstanding warrant for his arrest. As the police cruiser 

passed by the SUV, Gonzalez and the defendant looked at one 

another. The officers activated the cruiser's blue lights, and 

the defendant pulled the SUV over on Fairfield Street. The 

officers pulled the cruiser behind the SUV, and Gonzalez saw the 

defendant climb from the driver's seat into the rear passenger 

seat. Gonzalez approached the driver's side of the SUV, while

St. Pierre approached the passenger's side. As St. Pierre 

approached, the defendant got out of the SUV and stood on the 

sidewalk. St. Pierre walked toward the defendant, and the 

defendant began to back up. The defendant ignored St. Pierre's 

instructions and attempted to flee. At that point, Gonzalez 

came around the front of the SUV and attempted to tackle the 

defendant but was unsuccessful.

St. Pierre ran after the defendant. As the defendant cut 

across the lawn of a home at 7 Fairfield Street, he began to 

lose his footing. The defendant turned down the driveway and 

lost his footing even more, allowing St. Pierre to catch up with 

him. As St. Pierre tried to grab the defendant, a struggle 

ensued. St. Pierre told the defendant that he was under arrest, 
4

but the defendant continued to resist. St. Pierre pushed the 

defendant against a pickup truck in the driveway and tried to 

grab the defendant by his shoulders. The defendant was able to 

get out of the zip-up sweatshirt that he was wearing, preventing

St. Pierre from gaining control of him. St. Pierre became 

"[a]lmost wedged in the corner" between the truck and the 

garage.

As St. Pierre tried to gain control of the defendant from 

behind, the defendant reached into the right side of his pants 

and pulled something out. The defendant moved his left hand 

over his right hand, and St. Pierre heard the defendant "push[]

the rack back on the slide of a gun." The defendant "lowered 

his center of gravity," at which time St. Pierre lost his grip 

on the defendant and "clearly [saw a black handgun] pointed at 

[his] left leg." St. Pierre "tried to pick up [his] left leg 

and almost put it behind [the defendant]" so that if the 

defendant was "going to shoot [St. Pierre's leg], [the defendant 

would] have to shoot himself." St. Pierre lost his balance as 

he tried to gain control of the defendant and the gun; he fell 

to his knees between the pickup truck and garage.

St. Pierre looked up and saw the defendant facing him from 

less than one foot away, pointing the gun directly at him. St.

Pierre sat back and put his hands up. The defendant then 

"stepped back a little bit, squared himself off, like three to 
5

four feet [away]" and "pointed [the gun] right at [St. Pierre]." 

St. Pierre pleaded with the defendant not to shoot him. 

However, the defendant fired a shot. St. Pierre believed that 

he had been shot (although he was not). The defendant then told 

St. Pierre to "give [him his] side arm." St. Pierre had his 

hands up as the defendant came closer to him. The defendant

pulled at St. Pierre's service weapon as St. Pierre tried to 

shield it with his elbow. The defendant pulled at the butt of 

St. Pierre's service weapon twice with enough force to move St. 

Pierre's body. Because St. Pierre's service weapon was locked 

in the holster, the defendant was unable to gain possession of 

it. The defendant then turned and fled through a backyard. 

Gonzalez and St. Pierre were unable to locate the defendant. A 

black handgun was found in the yard at 1 Fairfield Street.

Discussion. 1. ADW convictions. The defendant argues 

that his two convictions of ADW are duplicative, and thus

violate his constitutional right not to be twice placed in 

jeopardy for the same offense. He contends that the two 

instances in which he pointed a firearm at St. Pierre were part 

of a "single, brief, continuous and uninterrupted assault," and 

therefore, only one conviction can stand.4 "Both the double 

4 Prior to trial, the defendant filed a motion to dismiss 

pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982),

wherein he argued that the indictments were duplicative. A 

different judge denied the motion. The defendant does not argue 
6

jeopardy clause of the Fifth Amendment to the United States 

Constitution and Massachusetts common law prohibit the 

imposition of multiple punishments for the same offense." 

Commonwealth v. Dykens, 473 Mass. 635, 638 (2016). However, 

multiple convictions of the same or cognate offenses are 

permitted where they rest on separate and distinct acts. See, 

e.g., Commonwealth v. Gouse, 461 Mass. 787, 798-799 (2012), 

abrogated on other grounds by Guardado I, 491 Mass. 666. As the 

defendant notes, we look to what "'unit of prosecution' the 

Legislature intended as the punishable act for [ADW]." Dykens, 

supra at 640. We also consider the continuous offense doctrine,

"which recognizes that certain criminal statutes are intended to 

punish just once for a continuing course of conduct, rather than 

for each and every discrete act comprising that course of 

conduct" (citation omitted). Id. Here, the defendant was 

indicted on three counts of ADW, and the prosecutor argued to 

the jury that the defendant committed those three counts by 

separately pointing the firearm at St. Pierre's leg, 

chest/torso, and head. The defendant was acquitted of the last 

count.5

on appeal that the indictments should have been dismissed before 

trial, and so we do not reach that issue.

5 The Commonwealth contends that this means the jury viewed 

the assault to the chest/torso and the assault to the head as a 

single continuous act. That does not necessarily follow. In 
7

The crime of ADW is codified at G. L. c. 265, § 15B (b). 

This section, under which the defendant was indicted, does not 

explicitly state the unit of prosecution that the Legislature 

intended as the punishable act. However, § 15B (b) is set forth 

in G. L. c. 265, the entirety of which describes crimes against 

the person and focuses on the prevention of violence and injury 

to individuals. Generally, when the intent of the Legislature 

in enacting criminal statutes is aimed at protecting the safety 

of individuals, the number of victims determines the unit of 

prosecution. See Commonwealth v. Wassilie, 482 Mass. 562, 569 

(2019). See also Commonwealth v. Davis, 88 Mass. App. Ct. 143, 

146 (2015). However, the prosecution of distinct assaults on 

the same person during a single episode is not barred by this 

principle. See Gouse, 461 Mass. at 798-799; Commonwealth v.

Vick, 454 Mass. 418, 435 (2009). In fact, as was the case here, 

the same or cognate offenses may be prosecuted on the basis of 

separate and distinct acts against the same victim during the 

same attack. See, e.g., Commonwealth v. Jackson, 80 Mass. App.

Ct. 528, 530 (2011) (defendant committed two separate acts when 

he punched victim in body and stomach and kicked her in legs).

As mentioned above, the record before us does not contain 

the transcript of the discussion of the motions for required 

any event, nothing in our decision turns on this argument, and 

therefore, we do not address it.
8

findings. As a result, we do not have the benefit of the 

reasoning of the trial judge as to whether a rational juror 

could have concluded that the evidence, in the light most 

favorable to the Commonwealth, supported two convictions of ADW. 

See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). 

Nor did the defendant move after trial, pursuant to Mass. R. 

Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), for a 

judgment notwithstanding the verdict on one of the ADW 

convictions. Had he done so, the trial judge would have been 

required to "determine whether separate and distinct acts 

support[ed]" both ADW convictions. Commonwealth v. Suero, 465 

Mass. 215, 222 (2013). In these circumstances, we focus on the 

incomplete record before us, which includes the transcript of 

St. Pierre's testimony and the parties' stipulation as to what 

occurred on the last day of trial.

We conclude that the jury had before it sufficient evidence 

to find that the defendant committed two separate and distinct 

acts of ADW. The first occurred when St. Pierre chased the 

defendant, a struggle ensued, the defendant pulled a handgun 

from his pants, and the defendant "push[ed] the rack back on the 

slide of [the] gun." As St. Pierre tried to grab the defendant

from behind, the defendant "lowered his center of gravity" and 

St. Pierre saw the gun pointed at his left leg. This 

constellation of facts formed the basis for the first ADW 
9

conviction. See Commonwealth v. Buttimer, 482 Mass. 754, 767 

(2019) (outlining elements of ADW).

The jury could have found that the second ADW, although 

occurring close in time to the first, was a separate and 

distinct act, and not a continuous, uninterrupted assault. 

After St. Pierre lost his balance and fell to his knees, he 

looked up and saw the defendant facing him and pointing a gun 

directly at him. Unlike the first assault, where the defendant 

and St. Pierre were in a struggle, the defendant was now in a 

position of power as he stood over St. Pierre, who was on his 

knees. The defendant then "stepped back a little bit, squared 

himself off, like three to four feet [away]" and "pointed [the 

gun] right at [St. Pierre]." St. Pierre pleaded with the 

defendant not to shoot him; nonetheless, the defendant fired a 

shot. The defendant demanded that St. Pierre give him his 

service weapon. The defendant pulled at the butt of St. 

Pierre's weapon as the officer tried to shield it.6 Once St.

Pierre was on the ground and in an inferior physical position to 

the defendant, the defendant had the time to contemplate his 

next steps. When the struggle between the two ended with St. 

Pierre on the ground, the defendant could have fled. He did 

6 The prosecutor highlighted which acts constituted each 

charge of ADW in his closing argument.
10

not. Rather, the defendant aimed the gun at St. Pierre, as St. 

Pierre begged the defendant not to shoot him. St. Pierre's 

pleas went unanswered as the defendant fired a shot and then 

tried to steal St. Pierre's service weapon. There was a 

demonstrable "break" in the chain of events once the defendant 

was in a superior physical position to St. Pierre. These facts 

formed the basis for the second ADW conviction.7 See, e.g.,

Jackson, 80 Mass. App. Ct. at 530. Put another way, this 

evidence demonstrates that the jury could have found that the 

second assault was not part of a continuous offense, but rather 

was an independent course of conduct. See Vick, 454 Mass. at 

435 n.16, citing Commonwealth v. Maldonado, 429 Mass. 502, 509 

(1999) (whether defendant's actions constitute separate and 

distinct acts or single crime is question of fact for jury).

Once the first assault occurred, the defendant was faced 

with a decision known as the proverbial "fork in the road." See 

Hanna v. United States, 666 A.2d 845, 853 (D.C. 1995) (if during 

commission of crime, defendant "realize[s] that he [or she] has 

7 During deliberations, the jury asked a question about the 

facts to be applied to each charge. This portion of the 

proceedings was not transcribed. The parties agreed that the 

trial judge instructed the jury that they must be "specific" on 

each charge connecting it to each act as alleged. The defendant 

does not argue that the jury were not instructed that the 

convictions had to be based on separate acts, see Commonwealth

v. Kelly, 470 Mass. 682, 701-702 (2015), and so we do not reach 

that issue.
11

come to a fork in the road, and nevertheless decides to invade a 

different interest, then his [or her] successive intentions make 

him [or her] subject to cumulative punishment, and he [or she] 

must be treated as accepting that risk, whether in fact he [or 

she] knows of it or not" [citation omitted]). In Commonwealth

v. Horne, 466 Mass. 440 (2013), the Supreme Judicial Court held 

that an individual commits one single violation of G. L. c. 269, 

§ 10 (a), when he possesses a rifle outside of his home for an 

uninterrupted period, but that a second violation occurs when he 

returns to his home and then goes back outside with the rifle.

See id. at 452. After the first crime was committed, the 

defendant in Horne was faced with a "fork in the road" decision

-- rather than remain in his home, he left his home with a 

rifle, thereby committing a second crime.

Here, each ADW conviction was based on a discrete set of 

facts. After the first assault, the circumstances during which 

the assault occurred abruptly changed with St. Pierre on the 

ground with his hands in the air; the hand-to-hand struggle had 

ended. With the opportunity to reflect and make a choice, the 

defendant did not run. Instead, he committed a second assault

and attempted to steal St. Pierre's gun, a demonstration of

proactive conduct unrelated to his initial flight from the 

police. As a result, the defendant's convictions are not 

duplicative. See Commonwealth v. Tracey, 50 Mass. App. Ct. 435, 
12

443 (2000) (where defendant shot victim in arm and thirty 

seconds later fired two more shots, two convictions, one for 

each respective attack, affirmed).8 Cf. Orla O. v. Patience P., 

100 Mass. App. Ct. 126, 129 (2021) (one continuous event over 

brief period of time failed to satisfy threshold of three 

separate acts of harassment within meaning of G. L. c. 258E). 

Additionally, although the proximity in time, manner, and place 

of the defendant's conduct is relevant, those factors are not 

dispositive. See Dykens, 473 Mass. at 644. Here, the assaults 

occurred close in time, with the same weapon, but we do not read 

G. L. c. 15B (b) to "reward [the defendant's] persistence." 

Dykens, supra.

2. Firearm conviction. After trial in this case, the 

Supreme Judicial Court held in Guardado I, 491 Mass. at 686-693, 

8 The defendant's reliance on Davis, 88 Mass. App. Ct. 143,

is misplaced. There, in a brief episode, the defendants robbed 

a clerk of money from the till and her necklace. See id. at 

144. Because the acts were "part of one seamless" criminal 

episode, we concluded that there was one robbery, not two. Id.

at 147-148. Unlike in Davis, here, there was a break in the 

action, which afforded the defendant the opportunity to make a 

choice; he chose to commit a second ADW. Similarly, 

Commonwealth v. Traylor, 472 Mass. 260 (2015), is 

distinguishable. There, the Supreme Judicial Court held that 

"to sustain multiple convictions [of wantonly or recklessly 

permitting bodily injury to a child], the Commonwealth must 

establish either separate and discrete instances in which a 

defendant engaged in the proscribed conduct, or that multiple

victims were harmed as a result of a defendant's conduct." Id. 

at 273. Here, there were separate and discrete instances in 

which the defendant engaged in the proscribed conduct, ADW.
13

that the absence of licensure is an element of the offenses of 

unlawful possession of a firearm and unlawful possession of a 

loaded firearm. In Guardado II, 493 Mass. at 7-12, the court 

held that, although the Commonwealth presented insufficient 

evidence of absence of licensure at the original trial, the 

prohibition against double jeopardy did not bar a retrial.

After the issuance of Guardado II, the parties filed a 

joint status report in which they stated that based on the 

Guardado decisions, the defendant's firearm conviction must be 

vacated. The Commonwealth, relying on Guardado II, asks that 

the case be remanded for a new trial on the firearm conviction. 

The defendant contends that Guardado II was wrongly decided, and 

that State and Federal double jeopardy principles should bar a 

retrial.9 On our independent review, we agree with the 

Commonwealth that Guardado II is controlling. We therefore 

vacate the conviction of carrying a firearm without a license as 

a level one armed career criminal, with the Commonwealth 

remaining free to retry the defendant if it so chooses. See 

Guardado II, 493 Mass. at 12.

Conclusion. The judgment of conviction of carrying a 

firearm without a license as a level one armed career criminal

9 The defendant acknowledges that Guardado II requires that 

his firearm conviction be vacated and remanded for a new trial. 

He asks that we note his objection, and that he reserves his 

right to argue that double jeopardy bars retrial in the future.
14

is vacated and the verdict is set aside. On the remaining 

charges of ADW, assault and battery on a police officer, and 

resisting arrest, the verdicts are affirmed, and the case is 

remanded to the Superior Court for reconsideration of the 

sentencing scheme.

So ordered.