Opinion
No. 14–P–130.
05-31-2016
COMMONWEALTH v. Kenneth MICHAUD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of aggravated assault and battery, G.L. c. 265, § 13A(b )(i), and mayhem, G.L. c. 265, § 14. On appeal, the defendant contends that (1) the Commonwealth's evidence was insufficient to prove he did not act in self-defense, (2) the evidence was insufficient to establish the specific intent to maim or disfigure the victim, and (3) the convictions were duplicative. We affirm.
The defendant was found not guilty of assault with intent to murder in violation of G.L. c. 265, § 15.
Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 666–677 (1979). On May 2, 2012, the defendant and the victim met at a Revere restaurant to finalize the dissolution of their failed business relationship. After meeting for approximately three hours, they walked outside. The defendant approached the victim aggressively, punched him in the face, and chased him down an alley. The defendant caught the victim, took him to the ground, and struck him repeatedly with his hands. As he did so, the defendant yelled, “You're going to sue me? I'm going to show you who I am. I am a member of Hell's Angels.” The defendant then bit off the end of the victim's nose. After struggling for approximately five minutes, the victim escaped and ran back into the restaurant.
A percipient witness described the attack. He saw two men on the ground. A man with short hair and an Italian accent was on top of a man with longer and darker hair. The man on top repeatedly hit the man on the bottom in the face. The man on the bottom did not move or say anything. He only made a “gargling noise.” The witness thought the man on the bottom was going to die and called the police. According to two witnesses, the defendant's hair was short at the time. He was almost bald.
After the assault, the victim's face was swollen, the tip of his nose was missing, and he was bleeding profusely. His eyes were black and one was swollen shut. The victim experienced vision problems and dizziness. By contrast, the general manager of the restaurant observed no injuries to the defendant immediately after the altercation.
Discussion. 1. Self-defense. The defendant claimed that he acted in self-defense. He testified that the victim struck the first blow when he hit him in the back of the head, causing him to fall to the ground. According to the defendant, the victim got on top of him and began “choking” him. Only then did he bite the victim.
When “the evidence warrants a self-defense instruction, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense, by establishing that at least one of the three factors did not exist (i.e., that the defendant did not have reasonable concern for his safety, that he did not use all reasonable means to avoid physical combat, or that the force that was used was greater than necessary in all the circumstances of the case).” Commonwealth v. King, 460 Mass. 80, 83 (2011). However, “jurors ‘are entitled to disbelieve the evidence that the defendant acted in self-defense.’ “ Commonwealth v. Lamrini, 392 Mass. 427, 431 (1984), quoting from Commonwealth v. Fluker, 377 Mass. 123, 128 (1979). “Thus, if the Commonwealth has presented sufficient evidence that the defendant committed the crime, the fact that the defendant has presented evidence that he did not does not affect the sufficiency of the evidence unless the contrary evidence is so overwhelming that no rational jury could conclude that the defendant was guilty.” Commonwealth v. O'Laughlin, 446 Mass. 188, 204 (2006). That was not the case here. There was powerful evidence that the defendant initiated the attack, remained the aggressor, and beat the victim badly enough to cause disfiguring injuries.
Nor did the case deteriorate with the presentation of the defendant's evidence. “Where, as here, the evidence at trial ‘turns solely on the credibility of [the defendant's] witnesses, the Commonwealth's case cannot deteriorate.’ The weight and credibility of the evidence is the province of the jury.” Commonwealth v. Gomez, 450 Mass. 704, 710–711 (2008), quoting from Commonwealth v. Platt, 440 Mass. 396, 404 (2003).
2. Mayhem. “To make out a case of mayhem ... the Commonwealth had to prove, inter alia, that [the defendant] acted with ‘malicious intent to maim or disfigure.’ “ Commonwealth v. Forbes, 86 Mass.App.Ct. 197, 198–199 (2014), quoting from G.L. c. 265, § 14. “The Commonwealth can establish ... 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.’ “ Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 128 (2009), quoting from Commonwealth v. Lazarovich, 28 Mass.App.Ct. 147, 154 1989. Specific intent may be demonstrated by evidence of a sustained attack or the severity and extent of the victim's injuries. See Forbes, supra at 199. Here, evidence that the defendant bit the victim's nose with sufficient force to sever cartilage was sufficient to establish a “specific intent to maim or disfigure the [victim].” Ibid. (evidence that the defendant bit the victim's ear with adequate force to tear cartilage was sufficient to prove specific intent to maim).
3. Duplicative convictions. For the first time in his reply brief, the defendant argues that his conviction for aggravated assault and battery should be vacated because it is a lesser included offense of mayhem. “Despite the impropriety of presenting claims for the first time in a reply brief,” we address the argument. Commonwealth v. Perry, 65 Mass.App.Ct. 624, 634 (2006).
Aggravated assault and battery is a lesser included offense of mayhem, as charged here. See Forbes, supra at 202. However, “[c]onvictions of both the greater and lesser offenses are permitted ... [when] they ‘rest on separate and distinct acts.’ “ Commonwealth v. Medina, 81 Mass.App.Ct. 525, 529 (2012), quoting from Commonwealth v. King, 445 Mass. 217, 225 (2005), cert. denied, 546 U.S. 1216 (2006). As the jury was instructed, the charge of aggravated assault and battery was based on the defendant repeatedly punching the victim in the face. The conduct underlying the charge of mayhem was biting the victim's nose. These two acts were factually distinct. Therefore, there is no risk that the defendant was convicted of a greater and lesser offense based on the same conduct. “The convictions were not duplicative.” Commonwealth v. Johnston, 60 Mass.App.Ct. 13, 22–23 (2003).
Judgments affirmed.