## Facts

- After an ongoing feud involving Francisco Martinez and the defendant’s brother, the Commonwealth alleged the defendant acted in retaliation in two Boston incidents in January 1997.
- On January 4, 1997, the defendant and two others went to Martinez’s apartment shortly after midnight.
- A window was broken and a white plastic bottle containing gasoline was thrown through the opening into the apartment, igniting a fire that caused significant interior damage.
- A witness inside the apartment identified the defendant as one of three people outside immediately after the bottle was thrown.
- About a week later (January 10–11, 1997), the defendant kidnapped Martinez’s girlfriend, Nilsa Wong, threatened her with a baseball bat, and stated he should beat her to “leave” Martinez “another message.”
- The defendant was tried jointly on indictments arising from both incidents and convicted of, among other offenses: assault with intent to murder while armed with a flammable liquid, nighttime breaking and entering with intent to commit murder, arson, assault by means of a dangerous weapon, and kidnapping.

## Issues

1. Whether “entry” for Massachusetts burglary statutes is satisfied when a defendant breaks a window and throws an incendiary device into a dwelling without physically crossing the threshold.
2. Whether an erroneous jury instruction on the “entry” element of breaking and entering required reversal when identity was the only contested issue on that count.
3. Whether trying indictments from the two incidents together created undue prejudice requiring severance.

## Decision

- The Appeals Court affirmed all convictions.
- The court held that “entry” occurs when any part of the defendant’s body, or an instrument intended for use in committing a felony inside the dwelling, crosses the dwelling’s threshold; throwing a gasoline-filled bottle into the apartment met this requirement.
- The court ruled the trial judge’s “entry” instruction was erroneous but harmless because the occurrence of entry was not genuinely disputed and identification was the only live issue.
- The court held joinder was not an abuse of discretion because the incidents were close in time, linked by motive and narrative, and evidence from each would likely be admissible in a separate trial of the other; the defendant did not show undue prejudice.

## Legal Principles

- For purposes of Massachusetts burglary statutes, an “entering” occurs when any part of the defendant’s body, or an instrument intended for use in the commission of a felony inside the dwelling, crosses the threshold.
- An instrument used only to gain access is treated differently from an instrument used to perpetrate the intended felony inside; a firebomb thrown into a residence can satisfy entry because it is the means of committing the interior felony.
- An incorrect jury instruction does not require reversal absent prejudice in the trial context; where the misstated element is effectively uncontested, the error may be harmless.
- Joinder of indictments is permitted absent a concrete showing of undue prejudice, particularly when offenses are related in time, motive, and proof, and evidence would overlap in separate trials.

## Conclusion

The court upheld convictions arising from a firebombing and a related kidnapping, ruling that an incendiary device thrown into a dwelling constitutes burglary “entry,” that a flawed entry instruction was harmless where entry was not disputed, and that joinder of the indictments was proper without a showing of undue prejudice.


Commonwealth v. Cotto, 52 Mass. App. Ct. 225, 752 N.E.2d 768 (2001)