Berry, Trainor & Hanlon, JJ.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of aggravated rape and assault and battery by means of a dangerous weapon (sword). On appeal, the defendant argues that the judge erred in refusing his request for an instruction on the lesser included offense of assault and battery and that this error invalidated his conviction for aggravated rape where the jury's finding of aggravation could have been based on the charge of assault and battery by means of a dangerous weapon.

We summarize the facts that the jury could have found and that are relevant to the issues raised.

Sometime after 6:00 P.M. on August 18, 2008, the victim ran into the defendant while she was looking for a place to store her belongings until she could find another place to live. They had met about ten years earlier when they lived close to one another. The defendant offered to let her use his apartment to store her property and gave her ride to his home so she could take a look at the space. The victim had already been drinking and the defendant picked up more alcohol. At the defendant's apartment they sat on a couch and the defendant made mixed drinks. The defendant mentioned that he might be moving south and he explained that because he knew the landlord, he might be able to arrange for the victim to take over his lease.

As the two drank, the defendant's behavior changed. He blurted out that no one "messes with him, Hell's Angels are afraid of him." He put "erratical" music on the stereo and began to dance and take his pants off. The victim told him to "put his pants back on, that's not what we're here for." He offered her $50 to have sex and she refused. The defendant got angry when he unsuccessfully tried to use his cell phone and he threw it. The defendant became more irate when he then could not find it and accused the victim of taking his cell phone.

When the victim could not produce his phone, the defendant went to a large flower pot near the front door and pulled a sword out of it. He came at her asking her where his phone was and the victim picked up her pocketbook and offered him her phone. He grabbed her bag, threw it, and "whacked" her on the side of the head with the blade of the sword. She fell backwards from where she had been standing. Blood ran down her face and into her eye and she felt dizzy. He persisted in demanding his "f'ing phone" from her. When she could not produce it, the defendant hit her repeatedly with the sword on her head, neck, and ear.

The defendant put the weapon down, pushed the victim onto a couch and ran into the hallway, knocking on a neighbor's door directly across from his door. When Alicia Stephens opened the door, the defendant asked her to call his cell phone. As the defendant spoke to Stephens, the victim tried to leave through the front door, but the defendant blocked her. The victim told Stephens that the defendant had beaten her with a machete and asked her to call the police. Stephens testified that she saw the victim was bleeding from her head but acknowledged that she had not called the police. Stephens testified that she did not see a weapon.

The defendant pushed the victim back into his apartment and said, "sit down, bitch," ignoring his cell phone, which was now ringing. He picked up the sword again and struck her again across her brow. She tried to apologize for trying to leave, but the defendant grabbed a long silver-handled knife from the kitchen and threatened her with it. He pushed her onto the couch and grabbed a third weapon, a box cutter or razor, and cut her clothes off. Blood was everywhere from the wounds to her head.

The defendant grabbed the now naked victim by the hair and brought her into the bathroom. He forced her into the shower to rinse off because he said he did not want blood all over his bed. After the shower, the defendant put a towel on the victim's head and pushed her into his bedroom and onto his bed, face down. He forced his penis into her vagina from behind and then turned her on her back and again, forced his penis into her vagina. According to the victim, she believed the defendant had a knife in his hand when he raped her. She did not think he ejaculated. When he was finished, the defendant made her take another shower.

This time the defendant got into the shower with her and shoved soap at her from behind, pushing it against her genitals, to the front, and told her to wash. She was able to escape when she told the defendant she thought she heard sirens and that the police may be coming. When the defendant ran to the window to check, the victim grabbed a towel and fled from the apartment. The defendant tried to catch her, ordering her to "get back here you bitch." The victim ran into the Brick Yard Pub, a nearby bar, and testified that she told a man walking toward her to "Call the police. Hurry. Quick. I've been raped. He's still in there." A bartender called 911, and three police officers -- Michael Gorman, Mark Holey, and David Harney -- responded. Gorman testified that the victim was in "absolute hysterics" and that she told him the defendant "beat the shit out of her twelve times." She still had on only a towel and her hair was soaking wet. Gorman could see a cut above the victim's left eye and blood marks throughout her head.

An ambulance was summoned and arrived almost immediately. Before the victim was transported to the hospital, the victim asked Harney, "What about the rape?" According to Harney, this was the first time they were informed that the incident included a rape.

Only after the ambulance left, did the officers go the defendant's apartment. At the door to the apartment, Gorman saw a trash bag in the hallway and could smell a cleaning agent like bleach. The victim's ripped clothes were later discovered in the trash bag. The defendant did not immediately open the door when the police knocked, but eventually he allowed them to enter his apartment. He was naked. Gorman did not see any injuries on him.

In the apartment, the smell of bleach became stronger and Gorman saw a bucket filled with what appeared to be bleach and a pair of flip flops were in the bucket. The victim had been wearing flip flops. There were also bloody marks on the walls, the kitchen floor appeared to be wet and the shower had recently been running. The victim's wallet and a box cutter were on the coffee table which had been moved to the kitchen. After the defendant got dressed, he was arrested. Police testified that both the defendant and the victim appeared to be intoxicated.

At the hospital, the victim was treated for a two-centimeter laceration above her left eyebrow, a 3.5-centimeter laceration on her scalp and a hematoma on the ear. The wound to the eyebrow was stitched, the scalp injury was stapled, and the ear was drained and a dressing applied. A rape kit examination was also performed at the hospital with negative results.

The next day, police obtained a search warrant and returned to the defendant's apartment with Paul Zambella, a forensic scientist. Detective Rawston testified and Zambella confirmed that there was blood in the kitchen, bathroom, on the door jambs, the walls, refrigerator, the bed sheet, and a towel on the bedroom floor. There was also blood spatter on the living room walls. A sword was located in a flower pot to the right side of the entrance door. There was a small amount of blood observed on the blade of the sword.

Zambella gave an opinion that the blood spatter observed in the living room suggested a medium velocity bloodstain pattern. Zambella explained that this type of pattern occurs when "an individual is being struck with an object, such as a bat, [or] some other similar object, on his or her body, producing a blood flow. The action of the bat on that bloody surface would project blood onto a secondary surface." He compared this type of pattern with what occurs when blood simply drips onto a surface directly from a wound and with the spray of blood produced from a high velocity object such as a bullet.

The defendant did not testify, but counsel elicited testimony during cross-examination from Officer Harney that cuts to the face can be caused by a blow with a fist. Defense counsel also elicited testimony from Zambella that it is "possible" for blood spatter to be created with a fist. In addition, the defense called two witnesses. Larry DeFilippo was working at the Brick Yard Pub when the victim came in, and testified that she said she was attacked by the man next door with a machete, but said nothing about being raped. Ernest Taylor testified that about a year before the incident, he was part of a conversation during which the victim exchanged her telephone number with the defendant, with whom, in contradiction to her trial testimony, she told Taylor she had stayed in touch since about 2000.

In closing argument, the defense focused on the rape charge, arguing that the victim fabricated the allegation to spur more expeditious police action in finding the defendant. In addition to the victim's purportedly delayed accusation, the negative findings in the rape kit supported this theory. Counsel also argued that the defendant could not be the aggressor because he would not have left the apartment and knocked on the neighbor's door, bringing someone else into this. Defense counsel suggested that the victim probably got angry when she got her own blood on her clothing and ripped them off because she was angry. Finally, the defense suggested that the sword, with so little blood on it, could not have been used during the attack, but rather, the defendant used only his fist.

The defendant asked for an instruction on the lesser included offense of assault and battery on the indictment charging assault and battery by means of a dangerous weapon. The judge denied the defendant's request stating that the evidence that the victim was struck with a fist, rather than a sword, was too speculative to warrant such an instruction.

Discussion. The defendant argues that the judge erred in denying his request for an instruction on the lesser included offense of assault and battery. The Commonwealth properly concedes that assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon, but argues that an instruction on that theory was not warranted in this case. The Commonwealth also properly recognizes that the claim was preserved at trial and therefore, review must be to determine whether the error, if any, was prejudicial.

Whether a lesser included offense instruction is required under our decisional law turns on "whether the evidence at trial presents 'a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.'" Commonwealth v. Donlan, 436 Mass. 329, 335, 764 N.E.2d 800 (2002), quoting from Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692, 694 N.E.2d 1301 (1998). See Commonwealth v. Linton, 456 Mass. 534, 552, 924 N.E.2d 722 (2010) (whether "any reasonable view of the evidence" supports conviction of lesser, but not greater, offense). "[A] defendant's entitlement to a lesser included offense instruction depends not only on the existence of a possible factual scenario justifying a conviction of the lesser but not the greater offense, but also on evidence of a dispute at trial about the element that distinguishes the two offenses." Commonwealth v. Porro, 458 Mass. 526, 536, 939 N.E.2d 1157 (2010). "[T]here must be 'some evidence on the element differentiating the greater and lesser offenses,'" that is, some evidence that specifically puts in question an element of the greater offense that is not required of the lesser offense. Commonwealth v. Donlan, supra at 336-337, quoting from Commonwealth v. Egerton, 396 Mass. 499, 505, 487 N.E.2d 481 (1986). "The 'some evidence' that is required, 'in ordinary circumstances, cannot be the mere possibility that the jury might not credit a portion of the Commonwealth's evidence.'" Commonwealth v. Porro, 458 Mass. at 536, quoting from Commonwealth v. Donlan, supra at 337. "The judge need not reconstruct all possible factual scenarios subsumed in the evidence presented, no matter how unreasonable, and charge the jury accordingly." Commonwealth v. Donlan, supra at 337, quoting from Commonwealth v. Egerton, 396 Mass. at 505.

The Commonwealth argues that the testimony to the effect that it is possible for a fist to have caused the cuts at issue or a particular blood spatter pattern constitutes no more than speculation that the defendant actually used his fist rather than the sword. We agree.

The victim consistently and uniformly reported that she had been repeatedly struck by the defendant with a machete (sword). Specifically, she told the neighbor, the bartender, the police, and hospital personnel that she had been beaten with a machete. Her injuries and blood spatter were consistent with that explanation and a weapon matching that description was discovered in the apartment with blood on it. In this context, testimony that it is possible for a fist to have caused the blood spatter pattern and the injuries observed, alone, constitutes no more than speculation that only a fist was used during the incident.

As we noted above, an instruction on a lesser included offense is required where the evidence presents "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Drewnowski, 44 Mass. App. Ct. at 692. Even if we were to conclude that the evidence suggested that the victim had been struck with a fist, that evidence does not suggest a rational basis for acquitting the defendant of the greater offense. Merely because the victim could have been hit with a fist does not negate the overwhelming evidence that she was also struck with the sword.

Next, the defendant argues that because the element of aggravation on the rape charged could have been based on the charge of assault and battery by means of a dangerous weapon, the failure to instruct on the lesser included offense invalidates his conviction for aggravated rape. However, for the reasons stated above, there was no error in the instructions and thus, the conviction for aggravated rape was validly obtained.

Judgments affirmed.

By the Court (Berry, Trainor & Hanlon, JJ.),

Entered: April 9, 2012.