Opinion
18-P-1461
03-09-2020
COMMONWEALTH v. Germain L. JACKSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Germain Jackson, was convicted of assault and battery and intimidation of a witness. On appeal, he contends that (1) the judge erred in denying his motion for a required finding of not guilty on the assault and battery count, and (2) the judge's failure to give an intoxication instruction on the intimidation of a witness count, sua sponte, created a substantial risk of a miscarriage of justice. We affirm.
The judge allowed the defendant's oral motion for required finding of not guilty on a second count of intimidation of a witness.
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1. Assault and battery. The defendant argues that the Commonwealth did not prove beyond a reasonable doubt that the defendant touched the victim without consent. The argument is unavailing.
We apply the familiar test 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 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). "To prove a violation of G. L. c. 265, § 13A, when the battery at issue is offensive (as opposed to harmful), the Commonwealth must 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" (footnote omitted). Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008).
In the present case, an eyewitness testified at trial that he saw the defendant "slapping [the victim] around and pushing her down." He saw the defendant strike the victim and further testified that he was "not letting her up." He observed the defendant "slapping her" in the chest and upper body, and "pushing her down." After the defendant shoved the victim to the ground, the witness heard the victim say "I just want to go, I just want to leave, I just want to go home." He then heard the defendant say to the victim, "Call the cops, see what happens." On cross-examination, the witness further testified that the victim "was trying to get away. Like, she was trying to walk away from [the defendant] while she was trying to get up but he would not allow it.... She couldn't stand up initially because he kept pushing her." The above-summarized evidence was more than sufficient to prove a nonconsensual touching. See Hartnett, 72 Mass. App. Ct. at 476.
2. Intoxication instruction. The defendant argues that the judge should have instructed the jury that they could consider evidence of the defendant's intoxication in deciding whether the Commonwealth had proven the required specific intent to commit the crime of intimidation of a witness. The defendant did not seek any intoxication instruction at trial. Thus, we limit our review to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Instead of raising the issue of the defendant's intoxication at trial, the defense claimed that the eyewitness may have made a mistaken identification, or may have misperceived the incident he observed. Where the defense of intoxication was not raised at trial, we discern no error in the judge's failure to provide, sua sponte, an intoxication instruction. Even assuming, arguendo, that such an instruction was somehow warranted, the absence thereof did not come close to creating a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Fano, 400 Mass. 296, 306-307 (1987) (no "substantial likelihood of a miscarriage of justice from the absence of an intoxication instruction" in murder case where defendant "did not suggest or even intimate that, as a result of his drinking, he was incapable of forming the requisite specific intent"). Here, the evidence of guilt was strong, and the issue now raised on appeal bore no material relationship to the defense at trial. See Commonwealth v. Leng, 463 Mass. 779, 787 (2012). Thus, the argument is unavailing.
Judgments affirmed.