Opinion
12-P-116
04-22-2013
COMMONWEALTH v. CARMELO TORRES.
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
A District Court jury convicted the defendant of one count of violating an abuse prevention order, G. L. c. 209A, § 7, and one count of assault and battery on a person protected by an abuse prevention order, G. L. c. 265, § 13A(b)(iii). On appeal, the defendant claims that the evidence was insufficient to support either conviction and, furthermore, that the charge of violating an abuse prevention order is a lesser included offense of assault and battery under G. L. c. 265, § 13A(b)(iii), so as to render the convictions duplicative. We affirm.
The defendant's principal argument, reduced to its essentials, is that in the absence of testimony from the victim, the jury were required to credit the defendant's claim of self-defense. Viewing the trial evidence in the light most favorable to the Commonwealth, we conclude that the jury's convictions were well founded. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). At trial, a neighbor testified that she witnessed the defendant shove the victim into a DVD rack. Then, after viewing the victim later that evening, the neighbor testified that she 'had never seen anybody beaten so bad in my life.' Further, the jurors viewed photographs of the victim's injuries and, in doing so, were able to assess the reasonableness of the force used by the defendant. 'Jurors 'are entitled to disbelieve the evidence that the defendant acted in self-defense. There is no constitutional principle which bars the conviction of a defendant where there is evidence warranting . . . but not requiring, a finding that the defendant acted in self-defense." Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931, 933 (1985), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 431 (1984). Accordingly, the trial judge properly denied the defendant's motions for a required finding of not guilty. The defendant also claims that the conviction for violation of an abuse prevention order is duplicative as a lesser included offense of the conviction for assault and battery on a person protected by an abuse prevention order. We disagree. 'Inevitably, an assault and battery upon a person covered by an abuse prevention order will result in a violation of the order. However, it is possible to violate an abuse prevention order in myriad ways, so that a defendant can commit assault and battery on a person while simultaneously violating an abuse prevention order by failing to obey a stricture unrelated to the physical attack. That stricture, in turn, can supply an element that is not required to prove the assault and battery charge. We therefore reject the defendant's argument that violation of a c. 209A order is, in itself, a lesser included offense of assault and battery in violation of an abuse prevention order.' Commonwealth v. Housen, 83 Mass. App. Ct. 174, 178 (2013).
The victim asserted her Fifth Amendment to the United States Constitution privilege against self-incrimination and did not testify at trial.
Because the evidence was sufficient to support the assault and battery conviction, it follows that the evidence was also sufficient to prove violation of the abuse prevention order.
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We further note that despite the constitutional and common-law prohibitions on duplicative convictions arising out of a single course of criminal conduct, 'few, if any, limitations are imposed . . . on the legislative power to define offenses.' Commonwealth v. Levia, 385 Mass. 345, 347 (1982). 'It is the prerogative of the Legislature, in the course of defining offenses and fixing punishments, and in furtherance of public policy goals, to punish related offenses separately.' Commonwealth v. Cabrera, 449 Mass. 825, 828 (2007). See Commonwealth v. Negron, 462 Mass. 102, 103-104 (2012). As relevant here, G. L. c. 209A, § 7, and G. L. c. 265, § 13A(b)(iii), each protect different interests. The former punishes violation of a court directive; the latter punishes the infliction of harm on another person and enhances that punishment when such harm is inflicted on a person protected by a court order. Given these clearly delineated legislative aims, the convictions at issue are not duplicative.
Judgments affirmed.
By the Court (Grasso, Berry & Kafker, JJ.),