COMMONWEALTH v. BONIA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of assault and battery upon an elderly person, G. L. c. 265, § 13K (a1/2). The judge instructed the jury: “In order to prove the defendant guilty of having committed this offense, the Commonwealth must prove three things beyond a reasonable doubt: First, that [the victim] was a person 60 years of age or older; second, that the defendant touched the person of [the victim] without having any right or excuse for doing so; and, third, that the defendant intended to touch [the victim].”

The defendant argues first that the Commonwealth presented insufficient evidence that the defendant's use of force was unjustified. Because the defendant did not move for a required finding of not guilty, we review for a substantial risk of a miscarriage of justice. “However, findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We therefore review under the ordinary sufficiency standard, under which we must affirm if, viewed in the light most favorable to the Commonwealth, a rational trier of fact could find each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

The defendant is correct that “the absence of lawful authority or justification is an element of” assault and battery. Commonwealth v. Cabral, 443 Mass. 171, 179 (2005). See Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 564 (2006) (“In order to convict the defendant of assault and battery, the Commonwealth had the burden of proving that the defendant touched the victim without having any right or excuse to do so and that the defendant's touching of the victim was intentional”). The defendant is also correct “that a person may, after requesting another to remove from his premises, and his refusal to do so, use force for the purpose of removing him.” Commonwealth v. Clark, 43 Mass. 23, 25 (1840). An individual may use “no more force than [is] necessary” to do so. Commonwealth v. Dougherty, 107 Mass. 243, 248 (1871).

Notwithstanding this, there was more than sufficient evidence to support a finding beyond a reasonable doubt that the defendant's actions were not justified. According to the testimony of the victim, the defendant's aunt, she approached the front door of the house of the defendant, from whom she was estranged, knocked on the door, and called for the defendant. When he appeared at the door he started screaming and yelling “[g]et the fuck out of here.” Before she had “a chance” to leave, the defendant picked her up and threw her “around like a rag doll,” and “picked [her] up and threw [her] on the ground ․ [more than] three times.” She testified that the defendant threw her “out of the hallway, down on the ground out into the street.” She clarified that the “hallway” was part of the porch area. After “he already had [her] out in the street,” he “was opening [her] car door picking [her] up off the ground to throw [her] in [her] vehicle.” A juror crediting that testimony could have concluded beyond a reasonable doubt (a) that the victim did not refuse to leave the premises when asked, because she was not given time to do so; (b) that the defendant was not removing her from the premises when he picked her up and threw her to the ground; (c) that to the extent one might characterize his conduct as removing her from the premises, the force he used in picking her up and throwing her to the ground was greater than necessary to achieve that goal; and/or (d) that he continued intentionally to touch her after she was already off his property. Any one of those findings would, independently, suffice to render the defendant's intentional touching of the victim unjustified, even under the cases to which the defendant refers.

The defendant next argues that there were two unobjected-to errors in the jury instructions. We address each claim of error in turn and, since these claims, too, are unpreserved, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). “In making this determination, we may consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and whether it can be inferred from the record that counsel's acquiescence was not simply a reasonable tactical decision.” Commonwealth v. Roderiques, 462 Mass. 415, 426-427 (2012).

The defendant argues first that in explaining his statement “that the defendant touched the person of [the victim] without having any right or excuse for doing so,” the judge focused exclusively on the fact that the touching had to be intentional, and as a consequence the jury might have believed that an intentional touching, whether or not justified, was a sufficient basis for conviction. The flaw in this argument is that the judge's language about intentionality followed not the instruction on right or excuse but the instruction that “third, ․ the defendant intended to touch [the victim].” It was at that point in the instruction that the judge continued with the language to which the defendant points: “As I mentioned before, to prove an intentional assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to touch the alleged victim in the sense that the defendant consciously and deliberately intended the touching to occur and that the touching was not merely accidental or negligent. The Commonwealth was not required to prove that the defendant specifically intended to cause injury [to the victim].”

It is quite clear that this instruction elaborates on the word “intended” in the clause immediately preceding it. It has nothing to do with whether the defendant had any “right or excuse” for touching the victim. (The judge then completed his instruction by returning to the three elements of the offense by stating, “So a person over the age of -- 60 years of age or older, the defendant touched her without having any right or excuse for doing so intentionally. Those are the elements of the crime assault and battery on a person 60 years of age or older. Each one of those elements must be proved beyond a reasonable doubt.”) As there was no error, there could not have been a substantial risk of a miscarriage of justice.

Next, and finally, the defendant argues that the judge erred in failing to supplement the instruction on justification by explaining that an individual has the right to use reasonable force to remove a trespasser from his premises if after being asked to do so that individual refuses to leave on her own. The defendant argues that, “[a]bsent these clarifying instructions, there is a substantial risk that the jury found [the defendant] guilty of assault and battery despite also finding that [the defendant] used minimal force to remove [the victim] from his property -- which he had the right to do.”

The problem with the defendant's argument is that justification was not his defense at trial. Perhaps had the defendant requested such a clarifying instruction he would have been entitled to one, something we need not and do not decide. But defense counsel did not argue that the defendant used reasonable force in removing [the victim] from his premises. He argued that the defendant had not laid hands on her, saying “there is no physical evidence that shows that [the defendant] pushed or shoved [the victim].”

Given the dramatic testimony of the victim -– the only account of the events provided by a percipient witness, which, if believed in full, would not have supported a finding of justification –- defense counsel may have calculated that the likelihood of a jury concluding that what had actually happened was a use of reasonable force to remove a refusing trespasser from the defendant's property was less than the likelihood that they would believe that the victim was simply making up the story. Counsel may have concluded that even making an argument in the alternative would undermine what little defense he did have, and that an instruction on justification might have suggested to the jury that the defendant had something to justify.

Because failure to request the instruction may have been a reasonable tactical decision, we cannot find a substantial risk of a miscarriage of justice in the failure of the judge to give sua sponte the clarifying instruction described now by the defendant. The defendant does not argue here that the failure to object was not a reasonable tactical decision, and, on this record, we could not find that it was manifestly so.

Judgment affirmed.