83 Mass. App. Ct. 174 (2013)
A jury
convicted the defendant in Superior Court of armed assault with intent to
murder and multiple violations of an abuse protection order. The defendant appealed.
The Appeals Court affirmed the conviction.
The Appeals
Court found no merit the defendant’s claim that his convictions of multiple
counts of violating a G.L. c. 209A abuse prevention order are duplicative because they resulted from “an
unbroken course of conduct.” The defendant initially violated the terms of the
protective order when he approached the victim in the parking lot of her
workplace. After going to the victim’s home, he had an affirmative duty to leave
the premises on each occasion that one of the three minor children arrived at
the house. Therefore defendant committed additional violations of the order.
The Appeals
Court also rejected the defendant’s claim that one of the convictions of
violating a G.L. c. 209A abuse prevention order is duplicative as a lesser
included offense of assault and battery in violation of an abuse prevention
order under G.L. c. 265,
§ 13A(b )(iii). Two crimes may be
sustained where each crime requires proof of an additional fact that the other
does not. Even though an assault and battery committed upon a victim who is
protected by an abuse prevention order will result in a violation of the order,
convictions for both will be sustained because each crime has an element that
the other does not.
Finally, the Appeals Court considered the
defendant’s claim that there was insufficient evidence to support his
conviction of armed assault with attempt to murder. The defendant’s lack of
success in inflicting greater wounds did not amount to insufficiency under the
Latimore standard. The judgment of the trial court was affirmed.
Written 7/28/2013
