Opinion
15-P-242
01-11-2016
COMMONWEALTH v. GABRIEL SANTIAGO.
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
The defendant appeals from his convictions of assault and battery and unarmed robbery after a jury trial in the Superior Court. He asserts that in light of the evidence presented his conviction of assault and battery must be dismissed as a lesser included offense of unarmed robbery, hence duplicative.
On November 22, 2013, the defendant was arraigned on three indictments charging armed robbery, G. L. c. 265, § 17; intimidation of a witness, G. L. c. 268, § 13B; and assault and battery, G. L. c. 265, § 13A. His conviction of witness intimidation is not at issue on appeal.
Background. The incident underlying the charges was a dispute over a claim for unpaid wages among a group of individuals in a parking lot. The jury could have found the following: The defendant displayed a pistol before the victim was pushed into the side of a parked vehicle. Thereafter the defendant and two other men reached into the victim's pockets and took approximately $280. We refer to additional facts as they pertain to our discussion of the issues.
Lesser included offense. The defendant argues, for the first time on appeal, that, as the assault and battery took place during the alleged robbery of a single victim, it was a single incident that cannot provide a basis for the convictions of two separate crimes. We look to the elements of the charges to determine whether each contains an element that the other does not. Commonwealth v. Vick, 454 Mass. 418, 431 (2009). Unarmed robbery requires a larceny -- an element that is not required to prove assault and battery. Notwithstanding the defendant's argument to the contrary, assault and battery also requires an element not required to obtain a conviction of unarmed robbery, namely a nonconsensual "intentional and unjustified use of force upon the person of another, however slight." Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). The defendant's argument that, in theory, a jury could find either constructive or actual force to have been used to commit an unarmed robbery does not avail him on this record, which is replete with the use of actual force. The judge did not err in declining to give a separate and distinct lesser included offense instruction to the jury.
This is not one of the "rare circumstances where the purposes of our lesser included offense jurisprudence are not served by a strict application of the doctrine." Commonwealth v. Porro, 458 Mass. 526, 532 (2010) (positing, on a circumstantial basis, the anomaly that attempted battery "usually" qualifies as a lesser included offense of assault and battery depending, however, on the victim's awareness. Id. at 534.)
Finally, it is well established that a single act can be the basis of convictions of more than one crime. Commonwealth v. Jones, 441 Mass. 73, 74-75 (2004). The record demonstrates numerous distinct acts of assault and battery; even were that not the case, the judge was not obliged to instruct the jury that a single incident cannot support both convictions.
Judgments affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 11, 2016.