Opinion
No. 11–P–880.
2012-07-24
COMMONWEALTH v. Carmen GONZALEZ.
By the Court (BERRY, SMITH & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 12, 2010, the defendant, Carmen Gonzalez, was indicted on charges of assault and battery by means of a dangerous weapon, to wit a knife (Count one), and mayhem (Count two). A jury trial commenced on September 30, 2010. The defendant's motion for a required finding of not guilty, filed at the conclusion of the Commonwealth's evidence, was denied. The jury returned guilty verdicts on both counts. The Commonwealth made a motion to vacate the conviction on Count one, as it was duplicative of the mayhem conviction. The judge allowed the motion.
On appeal, the defendant claims that the judge committed error by (1) denying her motion for a required finding of not guilty on the mayhem charge, and (2) refusing her request for curative instructions to remove the reference to a knife, which appeared in both counts.
Background. The defendant claims that the evidence was insufficient to prove one element of mayhem: namely, the requisite intent to maim or disfigure the victim. Considered in the light most favorable to the Commonwealth, the trial evidence would permit a jury to find the following facts.
On October 6, 2009, the twenty-four year old victim was living with her two children in Holyoke. On that date, the victim returned home with her children and some friends after seeing a movie. The victim then drove her boyfriend to work. When she returned home she saw a woman, identified as the defendant, leaning against a fence. The victim went into her house and came back out, accompanied by a friend. When she came back out, the victim saw the defendant riding in the back seat of a red automobile. The defendant rolled down a window as the vehicle drove slowly by the victim's house and told the victim, “I'm looking for someone but it's not you guys.” The victim's friend asked the defendant to identify herself, and the defendant stated that her first name was “Carmen.” The victim was aware that the defendant had been looking for her, so she approached the defendant and identified herself. The defendant asked the victim if she had taken the boyfriend to work. The victim said “No,” even though she had taken him. The victim then asked the defendant “what was the problem” and they began to argue. The defendant said, “That's it,” leaned over the car's console, “grabbed something,” got out of the car, and attacked the victim. The victim's friend separated the two women. As the defendant started to leave, she said to the victim that she knows where the victim lives and this “is not the end of it.”
The victim sustained several cuts to her face and mouth and her eye was punctured. Her clothes were “sliced.” The victim went to Holyoke Hospital and received treatment for her facial wounds, which required stitches. The cuts resulted in permanent scarring. Her mouth wound could not be sutured, and the victim has a persistent black spot on her eye. Sometime after the incident, the defendant talked to the victim on a cellular telephone and told her “how pretty [the victim's] face was and that wasn't the end of it, and that she was going to leave [her] kids without a mom.” At trial, photographs of the victim's injuries and her medical records were introduced in evidence.
Discussion. 1. Sufficiency of the evidence. The mayhem charge was submitted to the jury on the second theory of mayhem, which states that “whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, ... and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person ... shall be punished [.]” G.L. c. 265, § 14.
Here, where the defendant claims that the Commonwealth presented insufficient evidence of specific intent to maim or disfigure, we consider the evidence in the light most favorable to the Commonwealth. Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 128 (2009). “The Commonwealth can establish such specific intent ‘by direct or inferential proof that the assault was intentional, unjustified, and made with the reasonable appreciation on the assailant's part that a disabling or disfiguring injury would result .’ “ Ibid., quoting from Commonwealth v. Lazarovich, 28 Mass.App.Ct. 147, 154 (1989).
When viewed in the light most favorable to the Commonwealth, the evidence and the reasonable inferences that could be drawn from it were sufficient to establish that the defendant acted with the specific intent to maim and disfigure the victim. The defendant intentionally sought out the victim, apparently because the victim was seeing the defendant's ex-boyfriend, then suddenly attacked her with a sharp, cutting object causing serious cuts to the victim's face which resulted in permanent scarring and injury to her eye. Photographs of the injuries to the victim's face were relevant evidence of the defendant's intent. See Commonwealth v. Taghizadeh, 28 Mass.App.Ct. 52, 60 (1989). Further, this was not a “spur of the moment” action which the courts have found insufficient to support a conviction of mayhem. Rather, “the injury the defendant inflicted was a logical and foreseeable consequence of [the defendant's] planned, sudden, and unprovoked attack; the weapon [she] used; the force with which [she] used the weapon; and the part of the victim's body at which [she] directed it .” McPherson, supra at 129. There was no error in the denial of the defendant's motion for a required finding of not guilty.
2. Failure to give curative instructions. The defendant also makes the somewhat confusing argument on appeal that it was error for the judge to deny defense counsel's “request for an instruction that would be curative of the fact that those indictments both included the word ‘knife,’ and that would remind the jury that the Commonwealth had failed to prove ‘to wit, a knife.’ “ This omission, according to the defendant, was exacerbated by the prosecutor's remarks during closing argument emphasizing that the defendant used a knife when “[the prosecutor] never presented any evidence ... to ... the trial jury” that the defendant had a knife.
At the outset, we note that both parties refer in different instances to both indictments that were tried in this case, namely an indictment charging mayhem and an indictment charging assault and battery by means of a dangerous weapon. While it is correct that each indictment identifies the dangerous weapon as a knife, the assault and battery charge was dismissed by the trial judge as duplicative of the mayhem conviction and, therefore, nothing is before us with respect to that charge.
Considering only the mayhem charge, Massachusetts decisional law is clear that the particular dangerous weapon used is not an essential element of the crime, and thus language in an indictment specifying a particular weapon is superfluous. See Commonwealth v.. Wolinski, 431 Mass. 228, 236 (2000), and Commonwealth v. Salone, 26 Mass.App.Ct. 926, 930 (1989), citing Commonwealth v.. A Juvenile, 365 Mass. 421, 440 (1974). The language in the indictment indicating that the dangerous weapon used was a knife did not limit the Commonwealth's proof to that particular type of weapon. Rather, the indictment only required the Commonwealth to prove that a dangerous weapon was wielded by the defendant during the attack. See Commonwealth v. A Juvenile, 365 Mass. 421, 440 (1974), abrogated on other grounds by Commonwealth v. Mendes, 406 Mass. 201, 212 (1989) (defendant not entitled to acquittal by reason of the Commonwealth's failure to prove unnecessary allegations in the description of the crime). The trial judge clearly understood and articulated this point to defense counsel, and correctly defined the term “dangerous weapon” to the jury.
It is also clear that the evidence was sufficient to permit the jury to infer that the defendant had used a knife to inflict the victim's injuries. Testimony showed that the defendant grabbed something from the vehicle in which she arrived before attacking the victim. In addition, the “slice” marks in the victim's clothing and medical records that describe “multiple facial laceration that have a linear pattern” clearly permit the inference that a knife was used. “[C]ircumstantial evidence is competent to establish guilt beyond a reasonable doubt,” and “[a]n inference drawn from circumstantial evidence ‘need only be reasonable and possible; it need not be necessary or inescapable.’ “ Commonwealth v. Bush, 427 Mass. 26, 30 (1998), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). In these circumstances, any instruction that suggested there was no evidence a knife had been used would have been error.
As an aside, the premise of the defendant's argument is a somewhat illogical attempt to piggyback on counsel's request for a curative instruction at trial. Most notably, the request at trial was limited to the indictment for assault and battery by means of a dangerous weapon, which was dismissed. Moreover, counsel's objection was narrowly directed to the judge's statement that “the Commonwealth alleges that the dangerous weapon was a sharp instrument, a piece of glass or something else.” This was error, according to the defendant, because the only “allegation” set forth in the indictment read “dangerous weapon, to wit: a knife.” To the extent that the judge's instruction suggested the charging document contained language that the dangerous weapon was a sharp instrument, such a statement would indeed be inaccurate. However, any inaccuracy can hardly be viewed as error. For the reasons already discussed, the Commonwealth is not required to prove that the crimes of assault and battery by means of a dangerous weapon or mayhem be committed with any particular dangerous weapon.
Judgment affirmed.