Opinion
16-P-240
07-06-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Roger Deminico, Jr., was charged with assault and battery on a family or household member, in violation of G. L. c. 265, § 13M ; and assault and battery by means of a dangerous weapon (shod foot), in violation of G. L. c. 265, § 15A. The jury convicted him of assault and battery on a family or household member, and assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon. On appeal, the defendant contends that his conviction of assault and battery is duplicative of his conviction of assault and battery on a family or household member. We agree, and therefore must vacate the assault and battery conviction.
Discussion. "Assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon." Commonwealth v. Gouse, 461 Mass. 787, 798 (2012) (quotation omitted). See G. L. c. 265, § 15A(b ). Assault and battery is also a lesser included offense of assault and battery on a family or household member. See G. L. c. 265, § 13M(a ) ; Commonwealth v. D'Amour, 428 Mass. 725, 748 (1999) ("lesser included offense is one which is necessarily accomplished on commission of the greater crime"). A defendant cannot be convicted of both a greater and a lesser included offense unless the convictions "rest on separate and distinct acts." Commonwealth v. Kelly, 470 Mass. 682, 699 (2015) (quotation omitted). If the judge properly instructs the jury on separate and distinct acts, the jury are presumed to follow the instruction. See Commonwealth v. King, 445 Mass. 217, 226 (2005). Here, the issue of duplicative convictions was not raised in the trial court, so we review to determine if any error created a substantial risk of a miscarriage of justice. Kelly, 470 Mass. at 699. "Where ... the judge does not clearly instruct the jury that they must find that the defendant committed separate and distinct criminal acts to convict on the different charges, the conviction of the lesser included offense must be vacated as duplicative, even in the absence of an objection, if there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Id. at 700. This failure to instruct creates a substantial risk of miscarriage of justice, even where there is evidence the defendant committed separate and distinct acts that would be sufficient to convict with respect to each charge. Id. at 702.
In this case there was no separate and distinct acts instruction. Although the judge referred at times to "two verdict slips," or "a new offense," he never stated that convictions of the two offenses must rest on separate conduct. See id. at 701-702. The judge also did not relate any specific factual allegations to specific charges. See ibid. The prosecutor's closing argument also referred to the entire occurrence as a single event, summing it up as "the beating" and "that beating."
Had the defendant been convicted of assault and battery by means of a dangerous weapon rather than the lesser included offense of assault and battery, both charges could have been sustained even if they were not based on separate and distinct acts because "each crime requires proof of an additional fact that the other does not." Commonwealth v. Wolinski, 431 Mass. 228, 238 (2000) (quotation omitted). However, because assault and battery is also a lesser included offense of assault and battery on a family or household member, and because there was neither a separate and distinct acts instruction nor any relation by the judge of specific facts to specific charges, the assault and battery conviction must be vacated.
Conclusion. The judgment on the charge of assault and battery is vacated, the verdict is set aside, and the charge is dismissed. The remaining judgment is affirmed.
So ordered.
Vacated in part; affirmed in part.