Opinion
11-P-1359
12-26-2012
COMMONWEALTH v. SIRKKA M. DUGGAN.
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
A jury convicted the defendant of one count of assault by means of a dangerous weapon (a hammer) on a person sixty years or older, G. L. c. 265, § 15B(a), and one count of threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant first argues there was insufficient evidence to prove that she threatened a battery -- the theory of assault under which she was convicted. Second, she argues evidence of prior bad acts was erroneously admitted. For the following reasons, we affirm.
The defendant was acquitted of another count of assault with a dangerous weapon (a baseball bat) on a person sixty years or older.
Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found beyond a reasonable doubt that the defendant threatened a battery. 'A conviction of assault under a theory of threatened battery requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat.' Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). The defendant slammed a lamp on the floor and then told the victim (with whom she lived), 'I'm going to kill you.' She was enraged and used 'venomous' language. The defendant knocked a box of books on the floor, and, referring to the claw hammer she was holding, asked the defendant, 'You want some of this?' She proceeded to get 'in his face.' The victim was able to take the hammer away. When the defendant then announced that she was going to get a baseball bat, the victim left the house. A reasonable person could find the defendant's conduct threatening. Moreover, the jury were entitled to find, based on the fact that the victim disabled the defendant by taking the hammer away, that he perceived the threat. And while the defendant argues there was no evidence of her intent to place the victim in fear of an imminent battery, the defendant's words and conduct permitted the jury to conclude otherwise. Even accepting that the hammer may not have been held menacingly, that is merely one factor to consider in determining intent. See Commonwealth v. Foley, 17 Mass. App. Ct. 238, 239 (1983) (informing victim of existence of knife in pocket and threatening to kill victim with it sufficient), overruled on other grounds, Commonwealth v. Amirault, 415 Mass. 112, 117 n.9 (1993). Furthermore, the fact that there was no struggle is irrelevant to the defendant's intent to put the victim in fear. Finally, contrary to the defendant's suggestion, the intended threat of harm here is specific: bodily injury from being hit with a claw hammer. Compare Commonwealth v. Gorassi, 432 Mass. 244, 249-250 (2000) (defendant's following of girls with intent to entice not sufficient intent for assault).
The victim need not be placed in actual fear; he must only perceive the risk of imminent battery. See Commonwealth v. Slaney, 345 Mass. 135, 141 (1962).
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Turning to the defendant's second argument, we conclude that the judge did not abuse his discretion in admitting the evidence of prior bad acts. See Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011). The prior acts of abuse were admissible both to show the defendant's intent and that the victim perceived a risk of imminent battery. See Commonwealth v. Beneche, 458 Mass. 61, 80-81 (2010).
Judgments affirmed.
By the Court (Vuono, Grainger & Wolohojian, JJ.),