Opinion
15-P-89
04-07-2016
COMMONWEALTH v. DARIEN MCIVERY.
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
Following a jury trial in the District Court, the defendant, Darien Mcivery, was convicted of indecent assault and battery on a person over the age of fourteen. On appeal, he claims that the evidence was insufficient to establish guilt beyond a reasonable doubt. We review the claim under the familiar Latimore standard. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The only proof the defendant challenges on appeal is his identity as the perpetrator. The victim was walking on a sidewalk when she was approached by two men, the defendant and Xavier McCray. One of those men pulled her to the ground from behind and indecently assaulted her. A jury reasonably could have inferred from the testimony of both the victim and McCray that it was the defendant who committed the assault. The crux of the defendant's claim is an attack on the credibility of the witnesses and the inconsistency of their testimony, both provinces of the jury to decide. See Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). The motion for a required finding of not guilty was properly denied.
The jury found the defendant not guilty of larceny from a person. Two other charges, shoplifting and being a minor in possession of alcohol, were reduced to civil infractions, and findings of responsible were filed as to each charge with the defendant's consent.
Judgment affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 7, 2016.