Opinion
No. 11–P–1913.
2013-01-30
COMMONWEALTH v. Erica KILDE.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Erica Kilde, appeals from convictions by a jury for assault and battery by means of a dangerous weapon and leaving the scene of an accident involving property damage. She argues that the evidence was insufficient to sustain the conviction of assault and battery by means of a dangerous weapon and that error in the jury instructions created a substantial risk of a miscarriage of justice.
We note that on appeal the defendant failed to raise any argument as to her conviction of leaving the scene of an accident involving property damage.
We conclude, for substantially the reasons set forth in the Commonwealth's brief, that the jury could find the defendant committed an assault and battery by means of a dangerous weapon pursuant to both theories, intentional and reckless.
We do not rely on the unpublished cases cited by the Commonwealth.
We also conclude that the judge correctly instructed the jury on the charge of assault and battery by means of a dangerous weapon, that the judge was not required to give the jury an example of what constituted an excuse, and that the judge's prefatory comment to the jury (in regards to the reckless theory) did not shift the burden of proof to the defendant and did not indicate he presumed that the defendant was guilty.
Judgments affirmed.