Opinion
13-P-1482
10-16-2014
COMMONWEALTH v. MITCHELL R. BARRE.
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
After a jury trial, the defendant was found guilty of assault and battery in violation of G. L. c. 265, § 13A(a). On appeal, the defendant claims there was insufficient evidence to support his conviction. In particular, he claims the Commonwealth failed to disprove self-defense. We affirm.
Viewing the evidence in the light most favorable to the Commonwealth, a rational jury were entitled to believe the victim's testimony regarding the assault and battery. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). That is, the victim was lying down in his bedroom, reading a book, when the defendant walked in, punched him several times, and then grabbed him by the throat. This is sufficient evidence of assault and battery notwithstanding any contradictory evidence, or the defendant's version of events. See Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).
When "the evidence warrants a self-defense instruction, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense, by establishing that at least one of the three factors did not exist (i.e., that the defendant did not have reasonable concern for his safety, that he did not use all reasonable means to avoid physical combat, or that the force that was used was greater than necessary in all the circumstances of the case)." Commonwealth v. King, 460 Mass. 80, 83 (2011). In addition, when determining whether there was sufficient evidence for the jury to have concluded that at least one of the factors did not exist, it is important to note that the jury were "entitled to disbelieve the evidence that the defendant acted in self-defense." Commonwealth v. Lamrini, 392 Mass. 427, 431 (1984). The victim testified that the defendant entered his room and began punching him in the face. The defendant struck the victim several times and then grabbed his throat, saying that "he was going to kill [the victim]." The victim pushed the defendant away, and the defendant told the victim to move upstairs so that the defendant could listen to the television at night. Putting aside the third factor, when this evidence is viewed in the light most favorable to the Commonwealth, it rationally permitted the jury to conclude beyond a reasonable doubt that the defendant did not either (1) have a reasonable concern for his personal safety; or (2) use all reasonable means to avoid physical combat. See Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). The defendant's argument, based on his own testimony, which the jury were not required to credit, did not render the Commonwealth's evidence insufficient.
Judgment affirmed.
By the Court (Cohen, Meade & Milkey, JJ.), Clerk Entered: October 16, 2014.