Opinion
13-P-1681
08-13-2015
COMMONWEALTH v. MANUEL FERNANDEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction of assault and battery, G. L. c. 265, § 13A(a), on his girl friend. He asserts the evidence is insufficient to support his conviction, and that the judge's instructions confused the jury, creating a substantial risk of a miscarriage of justice. We affirm.
Sufficiency. The defendant contends that the "major discrepancies in [his girl friend's] story and the acknowledgment that she and the Defendant often wrestled around together" rendered the evidence insufficient to support a conviction. We disagree.
"We view the evidence at trial in the light most favorable to the Commonwealth, and 'determine "whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'" Commonwealth v. Grandison, 433 Mass. 135, 140 (2001), quoting from Commonwealth v. Lodge, 431 Mass. 461, 465 (2000). The girl friend testified that the defendant struck, grabbed, and strangled her. She also attested to sustaining bruises to her upper right arm, where the defendant grabbed her. Moreover, photographic evidence corroborated the existence of these bruises. Credibility determinations are within the province of the jury, and the "jury [were] not required to believe a defendant's evidence, even where there are inconsistencies and discrepancies in the testimony of various witnesses." Commonwealth v. Lao, 443 Mass. 770, 780 (2005). The evidence here was sufficient.
Jury instructions. The defendant contends the judge erred so as to create a substantial risk of a miscarriage of justice by mixing the jury instructions on intentional and reckless assault and battery. The judge instructed the jury as follows:
The defendant acknowledges that he did not object to the jury instructions at trial, and that therefore we will review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014).
"In order to prove the defendant is guilty of having committed an intentional assault and battery, the Commonwealth must prove three things, three elements, beyond a reasonable doubt.
"That the defendant touched, however slightly, the person of [the alleged victim] without having any right or excuse for doing so. That the defendant intended to touch [her].
"And, then third, that the touching was either . . . likely to cause bodily harm to [her], or was done without her consent.Specifically, the defendant contends the judge erred in instructing the jury they could convict the defendant of intentional assault and battery if they found his touching was "likely to cause bodily harm." We perceive no error in the judge's instruction. "Where the touching is physically harmful, consent is immaterial, but a nonharmful touching is a battery only if there is no consent." Commonwealth v. Porro, 458 Mass. 526, 529 (2010) (citations omitted). See generally Criminal Model Jury Instructions for Use in the District Court, Instruction 6.140 (2009). There was no error.
"As I mentioned, to prove intentional assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to touch [the alleged victim] in the sense that the defendant consciously and deliberately intended the touching to occur and that the touching was not merely accidental or negligent.
"The Commonwealth is not required to prove that the defendant specifically intended to cause any injury to the alleged victim."
Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 13, 2015.