COMMONWEALTH v. LEWIS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his three convictions, after a jury trial, of assault and battery by means of a dangerous weapon (an automobile), G. L. c. 265, § 15A (b).² He makes three arguments on appeal. First, he contends that the evidence was insufficient to permit the jury to find beyond a reasonable doubt that, as used by the defendant, the automobile was capable of producing serious bodily injury. Second, he argues that the trial judge was required, sua sponte, to instruct the jury on the lesser included offenses of assault, and assault and battery. Finally, in the alternative, he contends that his counsel was ineffective for failing to request those instructions. We affirm.

Sufficiency claim. To review the defendant's sufficiency claim, we view the evidence, together with the reasonable inferences to be drawn from it, in the light most favorable to the Commonwealth to determine whether “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 Jackson v. Virginia, 443 U.S. 307, 319 (1979). We focus here on the Commonwealth's burden to prove that the assault and battery was “accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.” Commonwealth v. Appleby, 380 Mass. 296, 308 (1980). The object in question was the defendant's car, which is not an inherently dangerous weapon. See Commonwealth v. Cherubin, 55 Mass. App. Ct. 834, 842 (2002); McGowan v. Longwood, 242 Mass. 337, 341 (1922).

Therefore, the question is whether the evidence was sufficient to permit the jury to find beyond a reasonable doubt that the defendant, in striking the occupied vehicle, operated his car “with the intent to use [it] in a dangerous or potentially dangerous fashion.” Appleby, 380 Mass. at 308. Actual injury is not required. See Commonwealth v. Mattei, 455 Mass. 840, 845 (2010). “That the victim [suffered no injury] is not dispositive. The ‘relevant behavior’ for the offense of assault by means of a dangerous weapon, ‘is an outward demonstration of force,’ and requires ‘only apparent ability to injure.’ ” Ibid., quoting Appleby, supra at 305. An object not inherently dangerous becomes so when it, “as used by the defendant, is capable of producing serious bodily harm.” Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984), citing Appleby, supra at 304.

Viewed through the Latimore lens, the evidence was sufficient to permit the jury to find beyond a reasonable doubt that the defendant used his car in a dangerous or potentially dangerous fashion and that the vehicle, as used, was capable of producing serious bodily harm. The victim was driving cautiously in the right-hand lane of westbound Route 114 in Peabody with her two children in the car. Suddenly, she heard beeping from the large minivan behind her, which had sped up to her bumper. The defendant, who was driving, was “leaning on his horn,” and tailgating her. Having nowhere to move to, the victim continued to drive straight in her lane until she reached the next traffic signal, where she stopped as the first vehicle on the edge of the intersection. The defendant followed, continuing to honk his horn. After coming to a stop behind the victim, the defendant deliberately put his car into motion in order to strike the victim's car from behind. All the while, the defendant continued to honk his horn. The force of the impact caused the children to be thrown forward. The victim then confronted the angry defendant, who swore at her. He then angrily drove away, almost colliding with another car.

When police questioned the defendant later that day, he again became extremely angry. In short, the jury could find that the defendant, who was angry and driving quickly, aggressively, and without control over his emotions, deliberately used his larger car in order to strike a smaller stopped car because it did not move out of his way when he wanted it to -- and that he did so without regard to the safety of the passengers in that car, or to that of any pedestrians who might have been in front of it in the intersection. See Marrero, 19 Mass. App. Ct. at 922 (fact finder to consider “the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled”). The “nature and specific features of the [minivan]” -- its size, its potential for speed and force -- permitted the jury to find that it was a dangerous object when used in the manner the defendant used it. Id. Although it is true that the facts suggested that the defendant did not strike the victim's car at great speed, the jury could nonetheless reasonably find that driving a large motor vehicle into another at the edge of an intersection with sufficient force to throw its occupants forward was using it in a manner that made the vehicle capable of producing serious bodily harm.³

Lesser included offenses. The defendant also argues that the judge should have, sua sponte, instructed the jury on the two lesser included offenses of assault, and assault and battery. No objection having been raised below, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 689-690 (1998). Because the defendant pursued an all-or-nothing strategy based on his testimony that no collision occurred at all, the judge did not err in declining to give an instruction that would have undercut the defendant's chosen defense by “volunteering an instruction on a middle ground.” Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 (2002). See Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 792 (1994); Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 52 n.4 (1986).

Ineffective assistance claim. The defendant's claim that his counsel was ineffective for failing to request instructions on the lesser included offenses is raised in its weakest form, i.e., for the first time on appeal and without an affidavit from trial counsel. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (“an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge 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”). Moreover, the defendant has not shown that defense counsel's tactical decision to proceed on the only defense available given the defendant's testimony that he did not use his vehicle to strike the victim's automobile, was manifestly unreasonable. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) (“A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made”).

Judgments affirmed.

FOOTNOTES

2.   The defendant was acquitted of leaving the scene of property damage, G. L. c. 90, § 24 (2); on the defendant's motion, a required finding was entered on the charge of reckless operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).

3.   We are unpersuaded by the defendant's argument that the judge's entry of a required finding on the reckless operation charge requires a conclusion that the evidence was legally insufficient to support a conviction for assault and battery by means of a dangerous weapon. To begin with, the judge's ruling is irrelevant; our review of the sufficiency of the evidence is de novo and made based on the trial evidence, viewed through the Latimore standard, in reference to the elements of the crime. Just as we would not treat a judge's denial of a motion for required finding as a reason to conclude that the evidence on a separate charge was sufficient, so too the judge's allowance of the motion with respect to the reckless operation charge does not compel the conclusion that evidence is insufficient to support the assault and battery conviction. In addition, we note that the elements of the two charges are not identical and, here, the Commonwealth did not proceed on a theory of recklessness as to the assault and battery charge, proceeding only on a theory of intentional assault and battery. See Commonwealth v. Burno, 396 Mass. 622, 625 (1986).