Opinion
11-P-687
03-14-2012
COMMONWEALTH v. GINA M. CLARK.
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, Gina M. Clark, appeals from her conviction at a jury-waived trial of assault, in violation of G. L. c. 265, § 13A. She argues that the trial judge improperly circumscribed the scope of cross-examination, thereby preventing her from establishing the victim's bias and motive to lie, and that there was insufficient evidence to convict her of assault based on a threatened battery rather than an attempted battery. Because the defendant was able to air the victim's reasons for bias and efforts to publicly accuse the defendant of wrongdoing, and because the evidence supported a conviction of assault on either theory, we affirm.
The defendant asserts that the trial judge prevented her from establishing three facts in cross-examining the victim: (1) that she and her husband had a pending civil suit against the victim; (2) that the victim filed her application for a criminal complaint in concert with two other individuals whom the defendant allegedly victimized; and (3) that the victim aggressively publicized the trial and other allegations of wrongdoing on her Facebook page. We conclude that the judge allowed the defendant to 'sufficiently air[]' the victim's bias. Commonwealth v. Taylor, 455 Mass. 372, 380 (2009), quoting from Commonwealth v. LaVelle, 414 Mass. 146, 154 (1993). For example, the defendant was able to establish that the victim owed her money and had stopped paying her back after seeking the instant criminal complaint; that the victim did not file an application for a criminal complaint until two years after the assault, and did so when she was with the two individuals in question; that the victim had established a competing charity; and that the victim accused the defendant of fraud and misconduct at public protests and in discussions with several television and newspaper reporters. In light of the extensive cross-examination that was permitted, the defendant's allegations of error relate only to cumulative, immaterial, or collateral matters. See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009), and cases cited; Mass. G. Evid. § 611(b)(1) (2011) ('The trial judge may restrict the scope of cross-examination in the exercise of judicial discretion'). We discern no abuse of discretion or other error of law.
The defendant also attacks the sufficiency of the evidence. An assault may be proven either as 'an attempted battery or an immediately threatened battery.' Commonwealth v. Arias, 78 Mass. App. Ct. 429, 431 (2010), citing Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000). The trial judge, who was also the fact finder, found that the Commonwealth had proven the latter theory but not the former. To sustain the conviction, therefore, the Commonwealth had to prove that 'the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm.' Commonwealth v. Gorassi, supra at 248, quoting from Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995), S. C., 421 Mass. 610 (1996). We must review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). There was evidence that the defendant raced out of the building, lunged at the victim while yelling and flailing her hands, then kicked the victim's car, and that the victim was upset and crying. Although the defendant contends that there was insufficient evidence of her specific intent to place the victim in fear, such intent can be inferred from the objectively menacing conduct. See Commonwealth v. Musgrave, supra at 524. Such an inference could reasonably have been made here. The evidence was sufficient to support the conviction.
Judgment affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),