Opinion
14-P-1777
03-17-2016
COMMONWEALTH v. SONDRA J. SCHNEIDER.
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, Sondra J. Schneider, was convicted of two counts of assault and battery by means of a dangerous weapon. On appeal, she challenges the sufficiency of the evidence as to each count charged, and claims that her trial counsel was ineffective. We affirm in part, and reverse in part.
1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. In the afternoon hours of December 22, 2012, the defendant was searching for a parking space at the Holyoke Mall in her sports utility vehicle (SUV). At the same time, Vanessa Rodriguez, her mother Lizette Rodriguez, and Vanessa's three children were in a minivan, searching for a parking spot in the same area as the defendant. When a spot became vacant, both the SUV and minivan attempted to enter it. As a result, the two vehicles came to rest at an angle within the parking spot, with the defendant's SUV in contact with the wheel well of the minivan. Vanessa got out of the minivan to speak with the defendant. Eventually, the defendant announced her intention to leave. At that point, Vanessa stepped to the rear of the SUV in an attempt to block the defendant from leaving the scene. The defendant then put the SUV in reverse and incrementally backed up three times, hitting Vanessa each time. By that point, both women were screaming and a crowd had formed.
Another individual involved in the incident also has the surname Rodriguez; we will accordingly refer to these individuals by their first names.
Hearing the commotion, security officer Carlos Rodriguez drove to the area, got out of his vehicle, approached the defendant, and inquired about the situation. In response, the defendant again attempted to leave the scene. Carlos asked the defendant to get out of the SUV. When she wouldn't comply, he reached in and tried to remove the defendant's keys from the ignition. In doing so, he was hit a number of times as the defendant continued to move the SUV, and fell to the ground when the driver's side car door made contact with him. Eventually, a second security officer arrived to assist, and Carlos limped away from the SUV. Shortly thereafter, the police arrived.
While Carlos was attempting to retrieve the keys, an unidentified male from the crowd also reached into the SUV in an attempt to remove the keys from the ignition. That person left the scene when additional security personnel arrived.
Assault and battery, whether unarmed or committed by means of a dangerous weapon, may be proved under two separate theories: intentional assault and battery or reckless assault and battery. See Commonwealth v. Porro, 458 Mass. 526, 529 (2010). The second, reckless assault and battery, at issue here, is "the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another." Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 807 (2009), quoting from Commonwealth v. Burno, 396 Mass. 622, 625 (1986). To establish recklessness, "the Commonwealth must prove . . . that the defendant's conduct involve[d] a high degree of likelihood that substantial harm will result to another, or that it constitute[d] . . . a disregard of probable harmful consequences to another." Commonwealth v. Hamilton, 87 Mass. App. Ct. 274, 276 (2015) (citations and quotation marks omitted). As to the injury suffered, the Commonwealth must prove that the injury "interfered with the health or comfort of the victim. It need not have been permanent, but it must have been more than transient and trifling." Burno, supra at 627. On appeal, the defendant challenges the sufficiency of the evidence of recklessness, and injury as to both Vanessa and Carlos.
The jury returned special verdict slips indicating that it convicted the defendant on the theory of "reckless assault and battery by means of a dangerous weapon" as to each victim.
As to Vanessa, the Commonwealth concedes, and we agree, that the defendant's conviction (count 1) must be reversed. Vanessa explicitly testified that she was not injured by the defendant's conduct, a required element of the crime. Nor was there any other evidence of injury. See ibid.
The Commonwealth also concedes, and we agree, that the defendant may not be retried on this count because the jury specifically and unanimously rejected conviction on the theory of intentional assault and battery as to Vanessa. See Commonwealth v. Carlino, 449 Mass. 71, 78-80 (2007).
The defendant's conviction as to Carlos (count 2) stands on a different footing. A rational juror could fairly find that operating a vehicle in an attempt to leave the scene, multiple times, while a person is reaching into the vehicle and engaging in a dispute with the driver, involves a high degree of likelihood that substantial harm would result. Where the SUV made contact with Carlos, causing him to fall to the ground, and where he was "hurting," limping, and having difficulty responding to police questions, the jury were entitled to infer that he had sustained more than a transient and trifling injury. As to Carlos, the defendant's motion for a required finding of not guilty was properly denied.
2. Ineffective assistance of counsel. There is no merit to the defendant's claim that her counsel was ineffective. The failure to request an instruction on the limits of a citizen's arrest did not constitute ineffective assistance where the evidence at trial did not support it. Likewise, where the judge instructed the jurors to disregard testimony that was subject to a sustained objection, counsel was not ineffective for failing to move that the testimony be stricken. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014). Lastly, where the evidence presented supported both theories of assault and battery by means of a dangerous weapon, see Porro, supra, on the record before us counsel was not ineffective for submitting a general motion for a required finding of not guilty, or for his failure to object to the inclusion of instructions on the theory of reckless assault and battery.
We repeat the oft-stated principle that a claim of ineffective assistance of counsel on direct appeal is presented in its "weakest form . . . because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
3. Conclusion. The judgment on count 1 is reversed, the verdict is set aside, and judgment shall enter for the defendant. The judgment on count 2 is affirmed.
So ordered.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 17, 2016.