Opinion
13-P-1289
12-16-2014
COMMONWEALTH v. JOHN R. CAPELLO, JR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction for assault and battery, pursuant to G. L. c. 265, § 13A(a), after a jury trial in a District Court. He complains that the judge erroneously denied his motion for a required finding of not guilty, and avers that the Commonwealth had failed to produce sufficient evidence that the physical contact was either harmful or offensive. He also contends that he received ineffective assistance of counsel in connection with counsel's failure to object to certain testimony of the victim. As we conclude that neither claim has merit, we affirm the conviction.
This court reviews a claim of insufficient evidence to determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The charge of assault and battery requires the Commonwealth to prove beyond a reasonable doubt "that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim's consent." Commonwea1th v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008). See Commonwealth v. Burke, 390 Mass. 480, 483 (1983) ("[I]t is the nonconsensual imposition upon one's person that makes a touching offensive and it is the offensiveness that makes the touching a battery.") Also, any touching that is "physically harmful" or "potentially physically harmful" constitutes a battery. Burke, Id. at 483-484.
Here, there was evidence that the defendant grabbed the victim (his then wife) by the foot and pulled as if to pull her off the couch on which she was then laying, to which she demonstrably objected. This evidence clearly shows both an intentional act and one without the victim's consent; it was, therefore, an offensive touching. Moreover, the manner in which he grabbed the victim's leg to pull her off the couch was likely to cause physical harm, thus also constituting a harmful touching. The defendant's argument is without merit, as the contact amply demonstrated criminal liability in the form of both offensive and potentially harmful touching.
The defendant also contends that his trial counsel failed to object to, move to strike, or request curative instructions with respect to certain parts of the victim's testimony, which amounts, he claims, to ineffective assistance of counsel. The defendant makes this claim on direct appeal, rather than the preferred method of raising this issue by motion for a new trial, supported by affidavit. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006); Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Because reasonable and strategic choices of trial counsel cannot be indisputably discounted on this record, Zinser, supra at 811, we reject this claim.
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 16, 2014.