Opinion
13-P-1606
12-17-2014
COMMONWEALTH v. MARK MOHR.
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
On appeal from his convictions of open and gross lewdness and assault and battery, the defendant claims error in the admission of statements he made while exposing his penis to hospital personnel; he also contends that the evidence was insufficient to establish that he committed assault and battery. We discern no cause to disturb the judgments and affirm.
1. Admission of the defendant's statements. While exposing his penis to hospital personnel (including two female nurses), the defendant stated (among other things) that he "loved to rape little girls," that he "couldn't wait to get out of the hospital to find one," and that "the only reason he woke up in the morning was to rape children." The defendant does not dispute that the statements were designed to shock and alarm those in attendance, or that they had that effect. The defendant likewise acknowledges that proof of his intent to shock and alarm those in attendance is an essential element of the crime of open and gross lewdness. The defendant nonetheless contends that the statements ought not to have been admitted because other, less outrageous, statements he made during the episode adequately met the Commonwealth's burden of proof. There is no merit to the defendant's claim of error. The statements went directly to an essential element of the charged offense, and furnished context to the exposure of his penis and insight into his intent to shock and alarm by doing so. That such intent could also be illustrated by less offensive remarks he made during the episode does not limit the Commonwealth's proof of its case to those less offensive remarks. Though the defendant's statements were undoubtedly prejudicial to his defense, the prejudice flows from their inculpatory nature in relation to the charged offense, and not from any extraneous source.
We note as well that the trial judge administered a limiting instruction to the jury, advising jurors that they should consider the evidence solely for the permissible purpose of assessing the defendant's intent to shock and alarm.
2. Sufficiency of the evidence as to assault and battery. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence was sufficient to permit a rational jury to conclude that the defendant intentionally touched Officer Harrison without Harrison's consent. The defendant's suggestion that he touched the officer reflexively while falling down, while not wholly implausible, was a question of fact for the jury to resolve. In any event, inconsistencies in the testimony presented at trial go to the weight and credibility of the evidence rather than its sufficiency. See Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).
Judgments affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 17, 2014.