Opinion
14-P-840
10-23-2015
COMMONWEALTH v. JANICE DEMARSH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant, Janice DeMarsh, was convicted of assault and battery. See G. L. c. 265, § 13A. On appeal, she argues that the Commonwealth failed to present sufficient evidence that a battery occurred. We affirm.
Discussion. To prove assault and battery the Commonwealth must produce sufficient evidence of either an offensive or a harmful touching. See Commonwealth v. Burke, 390 Mass. 480, 482 (1983). With respect to an offensive touching, there must be evidence sufficient to permit a factfinder to conclude "that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim's consent." Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008). The defendant argues that the evidence was insufficient to permit a finding of a lack of consent because, at the time of the incident she had been in a fifteen-year relationship with her boyfriend, Mark Manna, and that his consent was therefore implied.
The Commonwealth argued for conviction below solely on the ground of offensive battery. Because we find the evidence of an offensive touching to be sufficient, we need not address the alternative theory pressed on appeal, namely that the touching was harmful.
In the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the trial judge could have found the following facts. Manna and the defendant had been fighting for three days before Manna moved out and went to stay in a neighbor's apartment at the defendant's request. When the defendant attempted to visit Manna at the neighbor's apartment on the morning of the incident, other neighbors told her to stay away. Manna stayed in the apartment with the door closed because he "did not want to be involved with all the commotion." At approximately 2:30 P.M. Manna was lying on the floor in front of the television, sleeping on a sleeping bag. The defendant came in the room, and insisted that he get up and talk to her. She then "basically nudged [him] on the leg through the sleeping bag." Shortly after, Manna stood up, asked the defendant to leave, and called the police.
From this evidence, the judge was permitted to find that Manna did not consent to the touching. See Commonwealth v. Sullivan, 469 Mass. 621, 624 (2014), quoting from Commonwealth v. Longo, 402 Mass. 482, 487 (1988) (to support a finding of guilt, inferences drawn by the fact finder "need only be reasonable and possible and need not be necessary or inescapable"). Here, Manna had left the apartment he shared with the defendant, she had been told to leave him alone, he made no effort to interact with her, and he was lying on the floor with his eyes closed when she came in the room.
The defendant also points to Manna's testimony regarding his reaction to being nudged with her foot to show that the touching was consensual and not offensive. When asked if he found the touching offensive, he initially said, "no," but then qualified his answer, stating, "but at the time I kind of did because it was just -- of all the excitement that was going on." It was for the judge to weigh this testimony in the context of all the circumstances, and to determine which portions she found credible. Commonwealth v. O'Brian, 445 Mass. 720, 726 (2006) ("We accept a judge's resolution of conflicting testimony"). The evidence of an offensive battery was sufficient.
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 23, 2015.