Opinion
15-P-522
03-02-2017
COMMONWEALTH v. Robert SIGMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert Sigman, was convicted of assault and battery causing serious bodily injury, see G. L. c. 265, § 13A(b )(i), assault and battery, see G. L. c. 265, § 13A, and threat to commit a crime, see G. L. c. 275, §§ 2 & 4, after a jury trial in Superior Court. He argues the evidence was insufficient to prove that the victim suffered a serious bodily injury and that the judge erred in his instructions to the jury. For the following reasons, we affirm.
He was also indicted for kidnapping, see G. L. c. 265, § 26, but was found not guilty on the charge.
We briefly state the facts as the jury could have found them, and as they pertain to the issues on appeal. One morning, the defendant, while drunk, entered his girl friend's apartment despite her protests. The defendant shoved her onto the floor and dragged her by her hair to her bedroom. In her bedroom, he threw her onto the bed, and punched her tailbone. As a result of the punch, she experienced numbness in her legs, left hand, and around her waist, and was unable to stand. The defendant then began strangling her. He also repeatedly stuck his fingers into the side of her mouth and dug his nails into her gum line and cheeks, eventually breaking two of her teeth and causing significant bleeding from her mouth.
The defendant continued the attack by slapping her in the face, kicking her, and sitting on her. While sitting on her, he pulled down her shirt and bit her on her chest, causing bruising, swelling, and teeth marks. The marks remained for several months. During this period, he also told the victim he would love to kill her.
Afterwards, the victim had significant difficulty walking, had pain in her mouth, neck, chest, and back, and had a tingling feeling in her legs. She was diagnosed with a neck strain, intraoral injuries, and a coccyx fracture. For several days after the attack, the victim could not eat, sit, walk, or go to the bathroom. At the time of trial, seven months after the attacks, she still had difficulty sitting, walking, and eating.
At the close of the Commonwealth's case, the defendant moved for required findings of not guilty on the kidnapping charge and the serious bodily injury element of the assault and battery causing serious bodily injury charge. The judge denied the motion, both at that time and again when the defendant renewed it at the close of all the evidence. The jury convicted the defendant on three counts: assault and battery causing serious bodily injury, see G. L. c. 265, § 13A(b )(i), assault and battery, see G. L. c. 265, § 13A, and threat to commit a crime, see G. L. c. 275, § 2.
The defendant asserts error in the denial of his motion for required findings of not guilty because the evidence was insufficient to satisfy the element of serious bodily injury defined in G. L. c. 265, § 13A. He also asserts the judge erred in not giving a specific unanimity instruction, and in failing adequately to instruct the jury that in order to convict on both the assault and battery and the assault and battery causing serious bodily injury charges, they must find separate and distinct acts underlying each charge.
Serious bodily injury . The defendant argues that because the victim's injuries were temporary, she did not suffer "serious bodily injury" as defined by the statute: "bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death." G. L. c. 265, § 13A(c ), inserted by St. 2002, c. 35, § 1. He further claims that difficulty in eating is not considered a loss of bodily function. We disagree.
In reviewing the denial of a motion for a required finding, we consider the evidence in the light most favorable to the Commonwealth to determine whether the jury could find beyond a reasonable doubt that the assault and battery caused serious bodily injury. Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979).
The Commonwealth presented sufficient evidence to enable a reasonable jury to find that the victim suffered permanent disfigurement in the form of her broken teeth. The victim testified that the defendant cracked two of her teeth and that she lost portions of them.
The Commonwealth also presented sufficient evidence that the victim had suffered a loss or impairment of a bodily function as a result of the broken teeth. The victim testified to having had difficulty eating immediately following the incident and that the difficulty had persisted for seven months at the time of trial. A reasonable jury could have inferred that the victim had suffered a loss or impairment of bodily function. See Commonwealth v. Jean-Pierre , 65 Mass. App. Ct. 162, 162-163 (2005) (broken jaw that required several weeks of tube-feeding constitutes impaired bodily function); id . at 167-168, and cases cited. An impairment need not be permanent to be serious. Commonwealth v. Marinho , 464 Mass. 115, 118 (2013).
The judge did not err in denying the defendant's motion for required findings.
Specific unanimity instruction . The Commonwealth proceeded under two theories on the charge of assault and battery resulting in serious bodily injury: the broken teeth and the broken tailbone. As a result, the defendant claims that the judge erred in refusing to give a specific unanimity instruction.
The specific unanimity instruction is "an instruction to the jury that if there are alternative sets of facts or episodes which support a finding of guilty, the jury must reach a unanimous verdict as to at least one of those specific sets of facts or episodes." Commonwealth v. Ramos , 31 Mass. App. Ct. 362, 366 (1991).
"[W]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Commonwealth v. Thatch , 39 Mass. App. Ct. 904, 905 (1995). Here, where both acts supporting the single charge occurred during an uninterrupted series of attacks by the defendant in one location while he had the victim pinned down in her bedroom, the specific unanimity instruction was not required.
We note additionally that the defendant did not preserve the issue at trial. He has failed to show that the instruction would have had any effect on the verdicts, much less created a substantial risk of a miscarriage of justice. See Commonwealth v. Comtois , 399 Mass. 668, 676-677 (1987).
The defendant also claims the lack of a specific unanimity instruction could have resulted in a divided jury on which theory supported each respective charge. However, the Commonwealth established all elements of both the assault and battery and the assault and battery causing serious bodily injury charges. See Commonwealth v. Keevan , 400 Mass. 557, 567 (1987) ("In considering the omission of a specific unanimity instruction, we have determined that there is no substantial risk of a miscarriage of justice if the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty").
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"Separate and distinct" instruction . The defendant contends that the judge did not clearly instruct the jury on the requirement of finding separate and distinct acts for each conviction. He therefore argues that the jury could have based his conviction of assault and battery on the same act as his conviction of assault and battery causing serious bodily injury. The judge unambiguously instructed the jury that "[e]ach indictment relates to a different act. You must consider each indictment separately."
These instructions were clear. Furthermore, the Commonwealth in its closing stated the individual acts on which each charge could be predicated. The instructions coupled with the fact that the defendant committed numerous acts throughout the three-and-one-half-hour period leads us to conclude there is no "significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act." Commonwealth v. Kelly , 470 Mass. 682, 701 (2015). We discern no error.
Judgments affirmed.