Opinion
14-P-119
11-21-2014
COMMONWEALTH v. SELINA M. BENEVENTO.
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
The defendant wished to use Lang Street in East Springfield in order to drive her dog to the park for a walk. Lang Street, however, was being repaved and a police officer was directing traffic to two alternate roads. The defendant refused to heed the officer's instructions. Instead, after speaking with the officer, she reversed her car abruptly, waited for the officer to approach again, called out, "I don't have to stop for you," and then drove towards the officer quickly -- forcing him to jump out of the way to avoid being struck. She then drove down Lang Street. When arrested later that day, she said, "I should have hit him."
We recite the facts, and the reasonable inferences to be drawn from them, in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The sole issue on appeal is whether these facts were sufficient to prove assault by means of a dangerous weapon. "[T]he elements of assault by means of a dangerous weapon are that a defendant committed an assault, and that the assault was committed by means of a dangerous weapon." Commonwealth v. Anderson, 461 Mass. 616, 633 (2012). "[A]n assault is defined as either an attempt to use physical force on another, or as a threat of use of physical force." Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000). "Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so." Commonwealth v. Melton, 436 Mass. 291, 295 (2002). But an attempted battery theory does not require proof "that the victim [was] aware of the attempt or [was] put in fear by it." Gorassi, supra. "In the case of a threatened battery type of assault, the Commonwealth must prove that the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm." Ibid., quoting from Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995), S.C., 421 Mass. 610 (1996).
The defendant also was found guilty of failing to stop for a police officer and found responsible for failing to wear a seat belt.
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The defendant does not contest that her car was a dangerous weapon. Nor does she contend that any other particular element of assault was not proved. Rather, she argues that the evidence was insufficient because (a) the officer's testimony that she was traveling at fifteen to twenty miles per hour was legally incredible and should have been rejected, and (b) the judge interjected himself impermissibly by asking questions of the witnesses at trial. We disagree.
Our cases have consistently held that evidence does not become "incredible as a matter of law" simply because it is contradicted or because a witness's credibility has been impeached. See, e.g., Commonwealth v. Hill, 387 Mass. 619, 623-624 (1982). "Credibility is a question for the [trier of fact] to decide. Once sufficient evidence is presented to warrant submission of the charges to the [trier of fact], it is for the [trier of fact] alone to determine what weight will be accorded to the evidence." Commonwealth v. Hoffer, 375 Mass. 369, 377 (1978). Even were we to assume, however, that the officer's testimony that the car was traveling towards him at fifteen to twenty miles per hour was incredible as a matter of law, this unobjected-to testimony would not create a substantial risk of a miscarriage of justice. The speed of the car was not necessary to prove the crime and, in any event, regardless of the precise speed, the officer's testimony was that the car was moving "[q]uickly" towards him.
We also see no merit in the defendant's second argument. The judge asked only two or three questions and they came after both counsel had completed their direct examinations. "The judge could properly interrogate witnesses." Commonwealth v. Haley, 363 Mass. 513, 520 (1973), and collected cases. And the judge did not do so improperly in this bench trial. Although it is true that the judge's questions elicited some amplification of the officer's earlier testimony, they did not break new ground. In particular, although the judge elicited that the officer would have been struck had he not jumped away, that statement was largely encompassed -- at least inferentially -- by the officer's previous testimony that the car came within a few feet of him, causing him to jump away. In short, the judge's questioning did not overstep proper bounds.
Judgments affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 21, 2014.