Opinion
15-P-594
02-05-2016
COMMONWEALTH v. BISMARCK GUTIERREZ.
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
In Commonwealth v. Gutierrez, 82 Mass. App. Ct. 1118 (2012), we rejected the defendant's claim that the evidence at his 2009 jury trial was insufficient to prove beyond a reasonable doubt that he caused serious bodily injury, as that phrase is used in G. L. c. 265, § 13A(b)(i) and (c), and affirmed the judgments. In 2014, citing Commonwealth v. Scott, 464 Mass. 355 (2013), the defendant, pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1501 (1995), moved in the Superior Court for a required finding of not guilty. He now appeals from the denial of that motion, contending, yet again, that the evidence at trial was insufficient to prove that he caused serious bodily injury. We affirm.
The Supreme Judicial Court denied the defendant's application for further appellate review. 466 Mass. 1111 (2013).
The motion judge, who was also the trial judge, denied the motion without a hearing.
The defendant's present appeal challenges only his conviction of assault and battery causing serious bodily injury.
Where the defendant moved postconviction under rule 25(b)(2) for the jury verdict to be set aside and a not guilty verdict to enter, we view the trial evidence in the light most favorable to the Commonwealth, and assess whether a rational trier of fact could have found that the Commonwealth proved, beyond a reasonable doubt, that the defendant caused serious bodily injury. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove serious bodily injury under G. L. c. 265, § 13A(b)(i), the Commonwealth must "prove that a defendant caused bodily injury that resulted either in (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb, or organ; or (3) a substantial risk of death." Scott, supra at 357.
Here, the indictment alleged that the defendant had caused serious bodily injury by fracturing the victim's nasal bones. At trial, the victim detailed the beating administered by the defendant, during which he repeatedly struck her on the face and nose for an extended period of time while they were in a car and in a motel bathroom. She sought medical treatment that evening. In a line of questions concerning events from the night of the incident, the victim testified that as a result of the injuries sustained "that night," breathing through her nose is "more difficult," breathing is "a lot harder," some of the bone on the right side of her nose "got shifted to the left side," and her "sense of smell is vague." Although the victim had a scar on her nose and a deviated septum from a previous injury, her condition after the beating had degraded in the various ways described supra. Furthermore, the contemporaneous medical records, which were admitted in evidence without objection, describe "blunt facial trauma," a "comminuted fracture of the nasal bone," and a final diagnosis of a "[n]asal [f]racture." See Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013) (victim's testimony, combined with medical records, provided sufficient evidence of serious bodily injury even if some testimonial evidence conflicted with medical records). Accordingly, there was abundant evidence that the defendant caused bodily injury that resulted in impairment of a bodily function within the meaning of G. L. c. 265, § 13A(b)(i), and we decline the defendant's invitation to sit as a second jury and choose which inferences to draw from the evidence admitted at his trial. See Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981), quoting from Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978) ("To the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies'").
A more detailed description of the bodily injuries inflicted by the defendant, and the resulting impact on the victim, can be found in our earlier decision.
The victim testified at trial, on December 17, 2009, as to her current breathing difficulties, issues with her sense of smell, and the shifting of the bone in her nose. Thus, she still felt the impact of the injuries inflicted by the defendant more than ten months after the date of the incident, February 12, 2009, which further supported a jury finding of impairment of a bodily function. See Scott, 464 Mass. at 358-360. See also Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 162-163 (2005) (impaired bodily function where punch broke victim's jaw and required victim to be tube-fed for six weeks).
The defendant's claim that proof of causation necessitated expert testimony similarly lacks merit. In this regard, the defendant's reliance on Scott is misplaced. There the Supreme Judicial Court concluded that the jury could not have understood the severity of a grade II liver laceration without the help of an expert to interpret the medical records and to opine on impairment of a bodily function. Scott, 464 Mass. at 363-364. The evidence of the injuries to the victim's nose and breathing in the present case, by contrast, was straightforward, and coupled with the victim's testimony regarding the impact and the effect of the injuries was sufficient to establish impairment of a bodily function beyond a reasonable doubt. See Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 290 (2012) (where determination of causation lies within general human knowledge and experience, expert testimony not required). For the reasons delineated supra, as well as the reasons detailed in our prior decision and in the Commonwealth's brief, we hold that a rational jury could have found beyond a reasonable doubt that the defendant's blows caused a broken nose, and that a bodily function, i.e., breathing, was impaired as a result of the defendant's actions. The motion for a required finding of not guilty was properly denied.
Order denying postjudgment motion for required finding of not guilty affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.