Opinion
No. 12–P–993.
2013-03-20
COMMONWEALTH v. Michael J. COX.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael J. Cox, appeals from the denial of his motion to vacate certain convictions. He makes two arguments. First, he contends that all three of his convictions of assault and battery by means of a dangerous weapon are duplicative of his conviction of mayhem (second branch). See Commonwealth v. Negron, 462 Mass. 102, 103–104, 108–109 (2012); Commonwealth v. Medina, 81 Mass.App.Ct. 525, 528–529 (2012). During the plea colloquy, the defendant admitted beating the victim “first with one dumbbell, and then with a second dumbbell, and then with a statu[e],” providing a factual basis for the assault and battery by means of a dangerous weapon charges. The defendant also agreed to the facts stated by the prosecutor, which included that the defendant hit the victim “several times, numerous times in the face,” and that the defendant's assault lasted more than fifteen to twenty minutes and took place in several different areas of the victim's apartment. In conjunction with the defendant's admission that he seriously injured the victim and intended to do so, this sustained and vicious beating to the face provided a factual basis for the mayhem charge separate and distinct from the three individual blows underlying the lesser charges. Cf. Commonwealth v. Medina, supra at 529–530. Because the charges rested on distinct acts, they were not duplicative. See Commonwealth v. Gouse, 461 Mass. 787, 798–799 (2012). The defendant's second contention is that the facts to which he admitted did not support the armed assault with intent to murder charge because they established an armed battery with intent to murder. However, “every battery includes an assault.” Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 476 (2008), citing Commonwealth v. Burke, 390 Mass. 480, 482 (1983). This argument is therefore without merit.
Order denying motion to vacate convictions affirmed.