Massachusetts Appeals Court
March 18, 2011
Docket No. 10-P-615
Pursuant to Rule 1:28
The defendant was convicted on one count of assault and battery, in violation of G. L. c. 265, § 13A. On appeal, he argued that (1) the trial judge gave incorrect jury instructions that failed to address the 'offensive element' of assault and battery, and (2) the prosecutor's closing argument compounded the judge's incorrect instructions and created a substantial risk of a miscarriage of justice. The judgment is affirmed.
Facts
One evening, in their marital home, the defendant angrily grabbed the victim’s (his wife) hair and demanded to know where she had been earlier in the day. The defendant then punched the victim twice in the face, leaving noticeable bruises. The victim escaped and called the police. After a jury trial, the defendant was convicted on one of two counts of assault and battery, in violation of G. L. c. 265, § 13A.
Issue 1: Were the trial judge’s jury instructions erroneous for failing to address the “offensive element” of assault and battery?
Defendant asserted that the omission in the jury instructions meant the jury could only convict him if they found that his contact with the victim “was likely to cause bodily harm.” The defendant contended that, as a result, the conviction must be reversed due to insufficient evidence.
The Court found the defendant's argument lacked merit and the judge’s instructions were proper. The Commonwealth needed to prove the touching was: (1) physically harmful; (2) potentially physically harmful; or (3) nonconsensual. Commonwealth v. Burke, 390 Mass. 480, 483-484 (1983). The Commonwealth was not required to prove the touching was “offensive.” The instructions tracked verbatim the Criminal Model Jury Instructions for Use in the District Court § 6.140 (2009).
In addition, the evidence, viewed in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), permitted the jury to conclude that the defendant's punching of the victim was both nonconsensual and likely to cause physical harm. The jury could have properly convicted the defendant on either theory of assault and battery.
Issue 2: Did the Commonwealth’s closing argument create further risk of injustice by suggesting that nonconsensual touching was sufficient to constitute assault and battery?
The defendant argued that the prosecutor’s closing argument compounded the judge's error by suggesting nonconsensual touching was sufficient to constitute assault and battery. The Court held that this argument failed. Like the judge’s instructions, the prosecutor's statements accurately reflected the law of assault and battery.
Prepared by DFK
