COMMONWEALTH v. BURTON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Stephen Burton, was convicted on an indictment charging assault and battery upon a person over sixty, causing serious bodily injury, G. L. c. 265, § 13K (c) (indictment no. 1); two indictments charging assault and battery upon a person over sixty, G. L. c. 265, § 13K (a 1/2) (indictment nos. 3 and 5); and two indictments charging threatening to commit a crime, G. L. c. 275, § 2 (indictment nos. 7 and 8).  ² On appeal, he contends that the instruction on assault and battery was incorrect, that the victim's hospital records were wrongly admitted without expert testimony, and that the evidence on two of the indictments was insufficient. We affirm.

1. Instruction on battery. In his charge on the indictments charging assault and battery, the trial judge instructed that the third element of the crime was “that the touching was harmful or offensive.” In defining this element, the judge explained that the Commonwealth was required to prove beyond a reasonable doubt “that the touching was harmful. A harmful touching is a touching which is physically or potentially physically harmful.” The judge gave no instruction on offensive battery. The defendant did not object.

As the defendant's claim of instructional error is raised for the first time on appeal, we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 15 (1999). We agree that the instruction was imperfect. If the Commonwealth had been proceeding solely on a theory of a harmful battery, the judge should have omitted the words “or offensive” from the third element. If the Commonwealth was proceeding on both theories,³ the judge should have explained that an offensive touching must be without the victim's consent. See Commonwealth v. Eberhart, 461 Mass. 809, 818 (2012). Nonetheless, we discern no substantial risk of a miscarriage of justice from the error.

The defendant's brief focuses on the August 10 and Franklin Street incidents.⁴ During the August 10 incident, the defendant spat on the victim's face and punched him in the chest. In the Franklin Street incident, the defendant pushed an outdoor metal table into the defendant's hip and punched him in the chest with a closed fist. The jury also heard about the animosity between the victim and the defendant and the threats the defendant made. If the jury had been instructed on the offensive battery theory, we see no likelihood, let alone a substantial risk, that the jury would have found the victim consented to those touchings.

2. Medical records. The judge admitted redacted versions of the victim's ambulance and hospital records. At trial, the defendant objected only that the judge did not redact the word “assailant.” The defendant did not argue, as he does now, that the records were inadmissible without expert testimony. “We therefore review the unpreserved alleged error for a substantial risk of a miscarriage of justice.” Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 673 (2011).

The jury could conclude from the medical records, without the aid of expert testimony, that when the ambulance arrived for the victim after the Cantab Lounge incident he had a laceration over his left eyebrow, his left eye was swollen, and his nose “appeared deformed.” The hospital records also reflected that he had a laceration above his left eyebrow and that his left eye was swollen shut. The hospital records indicated that the victim suffered multiple fractures of his facial and nasal bones.⁵ Unlike the cases in which expert testimony was needed to establish a causal link between a medical condition and the defendant's alleged conduct, see, e.g., Commonwealth v. Kirkpatrick, 423 Mass. 436, 447-448, cert. denied, 519 U.S. 1015 (1996); Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 352-353 (2017), here a lay person reading the records without the aid of medical expertise could readily conclude that the defendant's touching of the victim was “harmful.” The medical records were relevant on their face and were properly admitted.

3. Sufficiency of the evidence. a. Serious bodily injury. The defendant further argues that the evidence was insufficient to prove serious bodily injury because without expert testimony the jury would have to engage in speculation and conjecture to reach the conclusion, based on the medical records, that the victim suffered “impairment of a bodily function.” G. L. c. 265, § 13K (a). See Commonwealth v. Scott, 464 Mass. 355, 362-363 (2013). While the jury may not have been able to draw that conclusion from the medical records alone, the victim's testimony supplied the requisite proof. The victim testified that he had twenty-twenty vision and needed only reading glasses before the defendant beat him, but that afterwards he could no longer see to climb a ladder or drive a car, he needed glasses for walking and watching television, his vision was very blurry without them, and his sight was impaired with “flies.” This testimony, together with the evidence of broken facial bones that the jury could properly find in the medical records, established that the bodily injury was serious within the meaning of the statute. See Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013); Commonwealth v. Baro, 73 Mass. App. Ct. 218, 219-220 (2008).

b. Threat to kill. The defendant argues that the evidence was insufficient to prove indictment no. 8, charging him with threatening “to kill” the victim on August 10, 2017.⁶ “The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000), cert. denied, 532 U.S. 980 (2001), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). “Whether the threat was made in attending ‘circumstances that would justify apprehension’ is measured by means of an objective standard. We do not require proof that the threat actually caused the victim of the threat to fear that the threatened crime or injury might be inflicted.” Commonwealth v. Kerns, 449 Mass. 641, 653 n.18 (2007). “[W]e consider ‘whether the Commonwealth produced enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present.” Commonwealth v. Hamilton, 459 Mass. 422, 426 (2011), quoting Commonwealth v. Hilton, 398 Mass. 63, 64 (1986).

The factual basis for the August 10 indictment was the victim's testimony that after the defendant spit in his face and hit him -- and the victim called the police -- the defendant said that the victim “fucked up” and was a “rat” for calling the police; that the defendant was “not taking this shit”; and “[b]asically, he [the defendant] runs Central Square with the homeless people, and [the victim] fucked up.” The victim testified that he did not have any concerns for his safety at the time; he thought that the defendant “was drunk and didn't know what he was talking about” and “[w]as just blabbing his lips.” When asked if he had been injured, the victim testified, “No. Just nervous. You know.”

Pointing to the victim's statement that he was not in fear, the defendant argues that the evidence did not justify apprehension on the part of a reasonable person. Our evaluation of the evidence, in the light most favorable to the Commonwealth, “is not confined to a technical analysis of the precise words uttered. Rather, the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.” Sholley, 432 Mass. at 725. The defendant made the threatening comments after he had just attacked the victim and the victim had called the police. The jury could infer that the defendant intended to retaliate and “commit a crime against the person” of the victim, G. L. c. 275, § 2, at a later time.⁷ Although the victim professed not to be in fear, the jury could have inferred from his demeanor -- the prosecutor argued that the victim “was exhibiting some bravado on the stand with respect to that” -- that the threats were serious and would have warranted a reasonable person to be apprehensive.

Judgments affirmed.

FOOTNOTES

2.   Prior to trial, the Commonwealth filed a notice of nolle prosequi on one charge of assault and battery by means of a dangerous weapon upon a person over sixty (indictment no. 2). The judge directed a verdict on one charge of assault and battery (indictment no. 4), and the jury found the defendant not guilty on the charge of intimidation of a witness (indictment no. 6).

3.   In closing argument, the prosecutor repeatedly characterized the crime as touching the victim without his consent.

4.   The defendant wisely makes no argument that he might have been convicted on the basis of offensive battery with respect to the Cantab Lounge incident, which landed the victim in the hospital.

5.   The records also disclosed that the victim was intoxicated -- he had an “altered mental status in the setting of alcohol intoxication” -- and was “a poor historian.” In her closing, defense counsel highlighted those notations and asked the jury “to very seriously read those medical records.”

6.   Indictment no. 7 charged threatening “to harm” the victim on August 12. The defendant's motion for required findings of not guilty on indictment nos. 7 and 8 was denied.

7.   The defendant also argues, without legal citation or reference to the indictments, that his statements “do not amount to a threat to kill or even a threat.” To the extent the defendant suggests that the proof was at variance from the indictment, the brief does not rise to the level of appellate argument and we need not address the suggestion. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629-1630 (2019) (argument section of brief shall contain “citations to the authorities and parts of the record on which the appellant relies”); Commonwealth v. Montez, 45 Mass. App. Ct. 802, 807 n.2 (1998).