Opinion
10-P-1191
12-21-2011
COMMONWEALTH v. STEPHAN J. KELLY.
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
After a jury trial in District Court, the defendant was convicted of assault and battery on an elderly person causing bodily injury, G. L. c. 265, § 13K(b). We affirm.
Sufficiency of the evidence. The defendant argues that his motion for a required finding of not guilty should have been granted, because there was insufficient evidence that his assault caused 'bodily injury,' an essential element of the crime. The Legislature has defined 'bodily injury' as follows: 'substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin.' G. L. c. 265, § 13K(a). Thus, the statutory definition includes a general statement ('substantial impairment of the physical condition') followed by a nonexclusive enumeration of specific examples of 'bodily injury.'
'Our standard of review on motions for a required finding of not guilty is, considering the evidence in the light most favorable to the Commonwealth, ' whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Woodward, 427 Mass. 659, 682 (1998), quoting from Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). Based on the evidence introduced at trial, the jury reasonably could have concluded that the defendant repeatedly struck the victim (the defendant's elderly father) in the face and head, and that these actions caused a cut (or cuts) in the vicinity of the victim's lower lip and a welt under his right eye. Based on this, the jury were entitled to conclude that the defendant caused the victim to suffer an 'injury which occur[red] as the result of repeated harm to . . . skin,' one of the specifically enumerated examples of 'bodily injury.' Moreover, even if the injuries had not fit one of the specifically enumerated examples, it would have been up to the jury to determine whether these injuries amounted to 'substantial impairment.' The judge properly denied the motion for a required finding.
The victim testified that the defendant 'hit me with his open right hand across my left cheek and knocked my glasses off, cut my face, and cut my lip,' and that he then 'struck me about [ten] times later very hard with an open hand on the head.'
To the extent the defendant suggests that where, as here, the Commonwealth has shown both multiple blows to the head and multiple resulting damage to the victim's skin, the Commonwealth must additionally show affirmative proof that the specific damage to the skin was caused by at least two different blows, we disagree with that suggestion. In any event, the jury reasonably could have inferred that at least two of the defendant's blows resulted in damage to the victim's skin (since the testimony was that the slap that caused the cut lip was to the victim's left cheek, and the welt was some distance away directly under the victim's right eye). See note 1, supra.
Evidence of prior bad acts. The victim testified, without objection, that after the defendant assaulted him, he said to a third party, 'Gee, this time I think I better call 911.' We agree with the Commonwealth's argument that this 'vague reference to a prior, unspecified incident' did not cause a substantial risk that justice miscarried (especially in light of the strength of the Commonwealth's case that the defendant assaulted the victim). Nor do we discern reversible error in unobjected-to testimony that the defendant had previously been arrested for an unspecified crime.
We reach this conclusion regardless of whether the alleged error is cast as the improper introduction of the evidence or as ineffective assistance of counsel for failing to object to it. See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002) (standard of review on an ineffective assistance claim based on the failure to object to evidence is tantamount to the unpreserved error standard). See also Commonwealth v. Delong, 72 Mass. App. Ct. 42, 47 (2008).
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Judgment affirmed.
By the Court (Green, Vuono & Milkey, JJ.),