Opinion
10-P-1274
12-08-2011
COMMONWEALTH v. DESMOND D., a juvenile.
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
At the conclusion of a jury-waived trial, a judge of the Juvenile Court found the juvenile delinquent on three counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b). The juvenile has appealed from all three adjudications upon the sole ground that the Commonwealth failed to introduce sufficient evidence for a finding beyond a reasonable doubt of his use of a dangerous weapon in the specified batteries. For the following reasons, we now affirm.
Factual background. The evidence permitted the judge to find the following facts. On the afternoon of June 2, 2009, at the South Junior High School park area in Brockton, the juvenile circulated on a bicycle with a 'BB' gun. He shot a BB pellet at, and struck, a sixth-grade boy. In testimony, that boy reported that the BB 'felt like a sting.' He identified the juvenile as the shooter. The juvenile had shot from a distance of about fifteen feet and had struck the boy in the neck and leg.
On the same afternoon also in the park, the juvenile shot at a fourteen year old boy and struck him in the eyelid with a green pellet. Finally, the juvenile fired at, and struck, a twelve year old boy with pellets from a distance of about three to four feet. One of the pellets hit the boy just above the eye. It caused pain and left a bruise. This victim knew the juvenile by name at the time of the incident and identified him in court.
Analysis. A finding of assault and battery by means of a dangerous weapon requires the Commonwealth to prove beyond a reasonable doubt each of the following elements: (1) intentional (2) unjustified and unexcused (3) touching of the victim (4) with a dangerous weapon. The Commonwealth need not prove that the defendant specifically intended to injure the victim, only that he specifically intended to touch the victim by means of the dangerous weapon. Commonwealth v. Ford, 424 Mass. 709, 711 (1997). See Commonwealth v. Appleby, 380 Mass. 296, 307-308 (1980). The juvenile argues on appeal that the Commonwealth failed to introduce evidence beyond a reasonable doubt of the character of the BB gun and pellets as a dangerous weapon.
We examine that contention under the settled standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979): 'whether the evidence, in its light most favorable to the Commonwealth, not withstanding the contrary evidence presented by the defendant, is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged' beyond a reasonable doubt. More specifically, in response to the juvenile's appellate argument, we ask whether the evidence in the light most favorable to the Commonwealth supported the finding beyond a reasonable doubt of the dangerous character of the BB gun and pellets.
A weapon may be an instrument inherently dangerous by reason of its design and purpose for combat or defense. Such a 'dangerous weapon per se' is an instrumentality constructed to produce death or great bodily harm. See Commonwealth v. Farrell, 322 Mass. 606, 614-615 (1948). Examples would include firearms, daggers, and brass knuckles. See Commonwealth v. Appleby, 380 Mass. at 303.
A second category of dangerous weapon consists of instruments and objects capable of inflicting serious bodily harm and used for that purpose. See Commonwealth v. Appleby, supra at 304-305 (riding crop used to administer a glancing lash to the victim); Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 484, 486-487 (1974) (kitchen knife and German shepherd dog used against victim); and Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (automobile door used to strike police officer).
In the present instance, the juvenile argues that the BB gun and pellets were not a dangerous weapon either per se or by reason of use (1) because the victims sustained only minor injuries; (2) because they did not panic in fear; and (3) because on one or more occasions he asked one or more individuals at the scene whether they would permit him to shoot them. None of these factors is material. The controlling test of dangerousness by use is whether the instrument was capable of inflicting serious bodily harm, not whether it actually did so. 'The law need not wait until the instrument actually does cause bodily harm in order to classify the weapon as dangerous.' Commonwealth v. Appleby, 380 Mass. at 307. Most obviously, and as the judge necessarily found, firing pellets from a BB gun at the heads of others from close range is an act very capable of inflicting serious bodily harm, and especially the grievous harm of serious eye injury and loss of vision. By that objective test, and not by such subjective considerations as the victims' apprehension or degree of pain, we determine the dangerousness of the instrumentality and the proof of the offenses.
Because we find the BB gun to be dangerous by use, we do not reach and do not exclude the alternate characterization of it as inherently dangerous. See G. L. c. 269, §§ 10(a) and (b), omitting BB guns from nonexhaustive itemization of dangerous weapons, and § 12B, prohibiting the possession of BB guns by unaccompanied minors in public places.
Adjudications of delinquency affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),