Opinion
16-P-391
05-30-2017
COMMONWEALTH v. Jonathan VAUGHN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Jonathan Vaughn, was found guilty of assault and battery on a person over the age of sixty, aggravated assault and battery, and assault and battery on a police officer. On appeal, the defendant contends that: the trial judge erred in denying his motion for a required finding of not guilty on the aggravated assault and battery charge; the convictions of aggravated assault and battery and assault and battery on a person over the age of sixty are duplicative; and the prosecutor improperly vouched for the credibility of witnesses during the closing argument. We affirm.
The jury acquitted the defendant of larceny over $250, malicious destruction of property, an additional count of assault and battery, and two counts of assault and battery on a police officer. The Commonwealth entered a nolle prosequi as to the charge of mayhem.
1. Motion for required finding. The defendant contends that there was insufficient evidence that the victim had suffered a serious bodily injury and, thus, the trial judge erred in denying his motion for a required finding of not guilty on the charge of aggravated assault and battery. We consider whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979), and conclude otherwise.
A "serious bodily injury" is one that results in either "a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death." Commonwealth v. Scott, 464 Mass. 355, 357 (2013), quoting from G. L. c. 265, § 13A(c ). "An impairment of a bodily function arises when a part or system of the body (other than an organ or limb) is significantly impeded in its ability to fulfil its role." Id. at 359.
At the defendant's trial, one of the victims testified that the defendant punched him on the left side of his face. The victim required surgery because "the bones in [his] cheek were shattered." He stated that doctors "implanted a plate up inside [his] mouth, up inside the cheek, and attached the shattered bones to the plate." Two years after the incident, the victim described how he continues to experience numbness, a drooping lip, and occasional tingling and pain. As a result, he experiences vision problems and difficulty drinking and eating because food dribbles from his mouth. Based on this evidence, the jury could have found that the victim suffered from the impairment of a bodily function, in that the injuries to his mouth and lips were such that he had difficulty eating and drinking, and continued to experience numbness, tingling, and pain. Cf. Commonwealth v. Marinho, 464 Mass. 115, 119 (2013) (jury could have found serious bodily injury where victim testified that he had "blurred vision" and "vision changes"). The trial judge did not err in denying the defendant's motion for a required finding of not guilty.
2. Duplicative convictions. The defendant contends that his conviction for assault and battery on a person over sixty is duplicative of his conviction of aggravated assault and battery because both convictions stemmed from the same act. We disagree.
In determining whether two convictions are duplicative, the long-standing rule in Massachusetts is that the court considers the elements of the offenses, rather than the conduct of the defendant. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871) ; Commonwealth v. Vick, 454 Mass. 418, 431 (2009). A defendant may not be convicted and sentenced on both a greater offense and the lesser included offense stemming from the same act. See Commonwealth v. Porro, 458 Mass. 526, 531 (2010). The elements of a lesser included offense "are a subset of the elements of the [greater] offense." Ibid.
However, the crimes of assault and battery on a person over sixty and aggravated assault and battery are not lesser included of the other. Each require proof of a different element. For example, the crime of assault and battery on a person over sixty requires proof that the victim is "an elder," G. L. c. 265, § 13K(c ), while the crime of aggravated assault and battery requires proof that the battery resulted in a "serious bodily injury." G. L. c. 265, § 13A. Contrary to the defendant's contention, "each crime requires proof of an additional fact that the other does not," Commonwealth v. Valliere, 437 Mass. 366, 371 (2002), and, therefore, neither of these convictions is a lesser included offense of the other. Accordingly, while the defendant's convictions for aggravated assault and battery and assault and battery of a person aged sixty or greater stem from the same act, they are not duplicative of each other.
3. Closing argument. The defendant complains, for the first time on appeal, about two comments the prosecutor made in closing argument. First, he asserts the prosecutor's statement, "I suggest that perhaps some of the testimony is to be believed and perhaps some of the testimony is not to be believed," was an improper comment on witness credibility. We disagree. This statement did not serve to bolster the witness's credibility, but rather properly informed the jury of their ability to credit some of a witness's testimony even if they did not believe her entirely. In the context of this case, this was a proper response to counsel's closing argument attacking the witness's credibility. See Commonwealth v. Martinez, 476 Mass. 186, 200 (2017). Moreover, the prosecutor used the language "I suggest" to "avoid expressing her personal belief about the witness's truthfulness." Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002).
Defense counsel said in closing argument that, "[The witness] is not a friend of the truth. If she told us right now that the sun was shining, I think I would have to go look out the window." He further stated, "I would suggest to you that you can't believe a word that she says."
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Next, the defendant takes issue with the prosecutor's description of another witness's testimony as "understated." Here, again, we perceive no error. "A prosecutor can address, in a closing argument, a witness's demeanor, ... and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs." Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). We find that the prosecution did not engage in improper vouching during the closing argument. We discern no error and, therefore, no substantial risk of a miscarriage of justice.
Judgments affirmed.