Opinion
16-P-903
03-20-2017
COMMONWEALTH v. James M. MCAVOY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James M. McAvoy, appeals from his conviction of assault with a dangerous weapon, see G. L. c. 265, § 15B(b ), contending that the evidence presented at his bench trial was insufficient to sustain his conviction. We affirm.
Background . The defendant crashed his jeep into a stand of trees while speeding around a campground in Truro. After crashing into the first stand of trees, the defendant backed up, nearly hitting a group of people that had gathered around the accident scene. The defendant repeatedly accelerated, crashing into trees and driving directly at pedestrians. Eventually, police and paramedics arrived and restrained the defendant. The defendant remarked that he hit the trees because he "was just trying to get the fuck out of there."
Discussion . "When reviewing the denial of a motion for a required finding of not guilty, we inquire ‘whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Sepheus , 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). We consider the evidence in the state it existed at the end of the Commonwealth's case, when the defendant moved for a required finding of not guilty. See Commonwealth v. McDonald , 462 Mass. 236, 241-242 (2012).
The defendant contends that the Commonwealth's evidence is insufficient to prove he intended to assault the bystanders. "Under common law, ‘an assault is defined as either an attempt to use physical force on another, or as a threat of use of physical force.’ " Commonwealth v. Arias , 78 Mass. App. Ct. 429, 434 (2010), quoting from Commonwealth v. Gorassi , 432 Mass. 244, 247-248 (2000). Thus, two theories of assault exist at common law: "attempted battery and threatened battery." Commonwealth v. Porro , 458 Mass. 526, 530 (2010). "A conviction of assault under a theory of attempted battery requires the prosecution to prove that the defendant ‘intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.’ " Ibid. , quoting from Commonwealth v. Melton , 436 Mass. 291, 295 (2002). "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." Id. at 530-531. See Melton , supra at 295 n.4.
General Laws c. 265, § 15B(b ), as amended by St. 1981, c. 678, § 2, provides an aggravating factor, "by means of a dangerous weapon," as an additional element for the prosecution to prove. Here, the defendant concedes that a motor vehicle may constitute a "dangerous weapon" for the purposes of § 15B(b ). See Arias , supra at 434-435 (upholding conviction of assault by means of dangerous weapon where defendant "lurched" truck at police officer).
The defendant contends that he was merely driving erratically, that the crime of assault requires a "target," and that the Commonwealth's evidence does not show that he targeted anyone. Viewing the evidence in the light most favorable to the Commonwealth, however, the evidence is sufficient to support the defendant's conviction under either theory of assault. See Arias , supra at 434-435. As to the attempted battery, the defendant drove at a knoll full of people, and later at a woman, causing all concerned to scatter. The fact finder could permissibly draw the inference that the defendant intended to drive into anyone who got in his way. See ibid.
The Commonwealth also provided evidence of intent sufficient for conviction under a threatened battery theory. See id. at 434. The defendant drove his car at bystanders. The fact that people jumped out of the way of the defendant's jeep shows that those involved perceived the threat. This evidence suffices to prove beyond a reasonable doubt the defendant's intent to place others in fear of an imminent battery. See Melton , supra at 295 n.4.
Judgment affirmed .