Opinion
No. 11–P–2047.
2012-11-9
COMMONWEALTH v. ORSON O., a juvenile.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from the trial judge's denial of his motion for a required finding of not delinquent on the charge of aggravated assault and battery, G.L. c. 265, § 13A( b )(1).
The juvenile was also adjudicated delinquent on the charge of disturbing a school assembly in violation of G.L. c. 272, § 40. He does not raise any appellate issues concerning this adjudication.
“In reviewing a denial of a motion for a required finding, we must look at the evidence in the light most favorable to the Commonwealth to determine whether any rational [fact finder] could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Ruci, 409 Mass. 94, 96 (1991).
The defendant argues that the victim's injury was not a “serious bodily injury” within the meaning of G.L. c. 265, § 13A( b )(1). The statute defines “serious bodily injury” as “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb, or organ, or a substantial risk of death.” G.L. c. 265, § 13A( c ), inserted by St.2002, c. 35, § 1. The statute does not require that an “impairment of a bodily function” be permanent, because the word “permanent” modifies only “disfigurement.” See Commonwealth v. Jean–Pierre, 65 Mass.App.Ct. 162, 163 & n. 3 (2005) ( broken jaw that required feeding tube to eat for six weeks was “serious bodily injury”). See also Commonwealth v. Baro, 73 Mass.App.Ct. 218, 219–220 (2008). Here, the victim testified that the injury to his eye resulted in black dots called “floaters” appearing in his field of vision. The number of “floaters” increased during sporting events and long periods of concentration on school work. The victim also testified that he still has pain and problems breathing through his surgically repaired nose. A rational finder of fact, in this jury-waived trial, the judge, could determine that the victim seeing “floaters” in his field of vision and experiencing breathing problems as a result of the broken nose are “bodily injur[ies] that result[ ] in ... impairment of [ ] bodily function[s].” G.L. c. 265, § 13A( c ).
The judge did not commit error by denying the motion for a required finding of not delinquent.
Adjudications of delinquency affirmed.