Opinion
15-P-61
10-07-2015
COMMONWEALTH v. JASON J. SCHULTZ.
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 was convicted of assault and battery following an altercation with his girl friend at a Stop & Shop grocery store in Dennis. On appeal, he claims that there was insufficient evidence to support the conviction. We affirm.
The defendant was acquitted of assault and battery by means of a dangerous weapon.
The evidence at trial was as follows. On July 16, 2011, the victim, Devon Hammond, was working at the grocery store. At approximately 3:00 P.M., an incident occurred in aisle eighteen that was captured on surveillance video. The video, which was entered in evidence, depicts a man pushing or throwing Hammond, causing her to crash into a shelf and then fall to the floor. The assistant manager of the grocery store identified the man on the video as the defendant. He also testified that he had seen the defendant earlier that week applying for employment, and then again in the employee lounge area on the day of the incident when Hammond was being treated following her injury.
The defendant and Hammond were in a relationship both at the time of the incident and at the time of trial. Hammond testified that the defendant did not push her. Instead, she stated that two ex-boyfriends, neither of whom is the defendant, came into the store that day and that one of them threw her to the floor. She further testified that she was "pretty sure" it was one of these ex-boyfriends, rather than the defendant, pushing her in the video. In rebuttal, Hammond's mother testified that on July 20, 2011, four days after the incident, Hammond told her that it was the defendant who had hit her on July 16, 2011.
In reviewing a sufficiency of the evidence claim, we determine whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, could find the crime proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Although the defendant did not move for a required finding of not guilty on this charge, we nevertheless consider whether the omission created a substantial risk of a miscarriage of justice. See Commonwealth v. Bell, 455 Mass. 408, 411-412 (2009). In doing so, we apply the familiar Latimore standard. See Commonwealth v. Latimore, supra.
Citing the poor quality of the video and the lack of direct evidence, the defendant claims that the evidence was insufficient to prove that he was the one who touched Hammond. First, a conviction may be based on circumstantial evidence alone if that evidence proves guilt beyond a reasonable doubt. Commonwealth v. Platt, 440 Mass. 396, 401 (2003). Second, it is the responsibility of the jury to decide the weight and credibility of the evidence presented. Id. at 400. The jurors were thus free to reject Hammond's testimony and credit that of the assistant manager, who explicitly identified the defendant as the man in the video seen pushing or throwing Hammond. The jurors also had the surveillance tape as evidence and were free to draw their own inferences after viewing it. Based on the evidence before them, the jurors rationally could have concluded that the defendant was guilty of committing assault and battery. See Commonwealth v. Latimore, supra at 677; Commonwealth v. Andrews, 427 Mass. 434, 440 (1998).
Judgment affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 7, 2015.