COMMONWEALTH v. ROSARIO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the District Court, the defendant, Samuel Rosario, was convicted of assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon, and malicious destruction of property under $250. On appeal, he contends that the jury instructions were improper and misleading, that the evidence of assault and battery was insufficient, and that evidence of his lawful ownership of a firearm was erroneously admitted. We affirm.

Discussion. 1. Jury instructions. a. Lesser included offenses. The defendant was charged with assault and battery by means of a dangerous weapon, a drill. The judge instructed the jury on that charge, and, upon the Commonwealth's request, he also instructed on two lesser included offenses: assault by means of a dangerous weapon, and simple assault and battery (no weapon). To the extent the defendant argues that the judge erred by instructing the jury on the lesser included offenses, we disagree. If the evidence permits a finding of a lesser included offense, the judge must so instruct the jury upon request from either the Commonwealth or the defendant. See Commonwealth v. Woodward, 427 Mass. 659, 662-663 (1998); Commonwealth v. Connolly, 49 Mass. App. Ct. 424, 426 (2000).

The victim testified that the defendant grabbed her by her shirt, carried her into her living room, threw her down on the couch, held her down, threatened her, and put a drill to her face. It is the jury's role to determine the credibility of witnesses, and in this role “they may accept or reject, in whole or in part, the testimony presented to them.” Commonwealth v. Tennison, 440 Mass. 553, 566 (2003). Although the defendant was charged with attacking the victim with a drill, the jury could have concluded from the victim's testimony that the defendant's conduct constituted a simple assault and battery. For example, the jury could have found that the defendant threw the victim down on the couch and held her there, but did not wield the drill, or that the defendant touched her with the drill but did not use it as a dangerous weapon. See Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984) (whether defendant used object that is not dangerous per se as dangerous weapon is for jury to resolve); Commonwealth v. Manning, 6 Mass. App. Ct. 430, 437 (1978) (“had the jury believed that the defendant merely held the knife and held the victim but did not touch her with the knife, he could have been convicted of simple assault and battery ․ or of assault with a dangerous weapon”).² Given the state of the evidence and the Commonwealth's request, the judge was required to instruct on the lesser included offenses.

b. Instruction on the two versions of events. The defendant testified in his own defense. In his version of events, he confronted the victim at her house, they argued, she attacked him, and he pushed her away in self-defense. He denied bringing a drill to the victim's house. After hearing the defendant's testimony and noting there was only one count of assault and battery by means of a dangerous weapon, the trial judge expressed concern that the jury might convict the defendant of the lesser included offense of assault and battery based on the pushing that he admitted, which was not the basis for the charge. To ensure that the jury did not convict the defendant based on his admission, the judge gave the following instruction as part of his final charge:

“Now, you've got two versions of what happened in the house. In considering the three offenses that I just described, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, assault and battery, you are to confine your deliberations to the version of events described by [the victim]. I am not suggesting anything about credibility of any of the witnesses, what they said that you should believe. It is completely up to you. But the government has charged assault and battery by means of a dangerous weapon. That is what you will think about when you consider this particular piece of evidence.

“Now, you certainly should consider and think about what [the defendant] said because that may have importance to you in making a decision about what happened or what didn't happen and what to believe and whom to believe. It's completely up to you. You think about all of the evidence; but, when you're thinking about the verdict, I want you to consider the version of events. I make no comment at all about what you should believe, who you should believe. That's completely up to you, but it's [the victim's] version of events that the government has charged here.

“So in terms of making your decision, only the assault and battery with a dangerous weapon in that version of events is what you base your verdict on.”

The defendant now contends that, contrary to the judge's intent, this instruction had the opposite effect and permitted a conviction based on uncharged conduct. The defendant failed to raise this objection at trial; therefore, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Conley, 34 Mass. App. Ct. 50, 55 (1993).

“[W]e consider the charge, taken as a whole” and determine “whether a reasonable juror could have used the instruction incorrectly.” Commonwealth v. Rosa, 422 Mass. 18, 27 (1996). In the final charge, the judge explained the elements of assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and simple assault and battery. He instructed the jury to consider all of the evidence in making their decision. He told them they should consider the defendant's statements in assessing the truth of the victim's account. While the instruction limiting the jury's consideration to the victim's version of events was unorthodox, we discern no substantial risk that the jury could have convicted the defendant based on uncharged conduct. See Commonwealth v. Green, 66 Mass. App. Ct. 901, 903 (2006).

2. Sufficiency of evidence. The defendant contends that the evidence was insufficient to sustain the conviction of assault and battery because the victim testified that she “thought” or “guessed” that the drill touched her hair. When reviewing the denial of a motion for a required finding of not guilty, we view the evidence “in [the] light most favorable to the Commonwealth.” Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In reviewing the sufficiency of the evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Id. at 677.

In the course of her testimony, the victim stated several times, without hesitation or qualification, that the defendant touched her with the drill: “He had it up against my face, and he threatened to use it on my face if I didn't give him his keys.” “I think it touched my hair because I felt it. I felt what he was holding.” “I felt it touch me.” “It touched my hair.” When asked if he held the drill anywhere else, she replied, “No, just on my face.” This evidence was sufficient for the jury to conclude beyond a reasonable doubt that a battery occurred.

3. Evidence regarding lawful possession of firearms. The judge allowed the defendant's pretrial motion in limine to exclude any reference to the defendant's ownership of firearms. Nonetheless, when the arresting officer was asked on direct examination whether the defendant was taken to the police department after this arrest, he replied, “Yeah. There was some time that we had to secure some firearms that were in the presence [sic].” The prosecutor did not follow up on the topic of firearms, and the defendant did not object. On cross-examination, however, defense counsel immediately had the officer confirm that the defendant was licensed to carry firearms. The defendant contends that the officer's testimony was prejudicial and irrelevant propensity evidence.

We need not determine whether the defendant's claim on appeal is preserved. See Commonwealth v. Grady, 474 Mass. 715, 719-720 (2016) (defendant not required to object at trial where motion in limine to exclude “the very same evidence” was denied; however, “[w]here what is being addressed and resolved at the motion in limine stage differs from what occurs at trial, the defendant still must object at trial to preserve ․ appellate rights”). Giving the defendant the benefit of the doubt as to the standard of review, we conclude that the admission of the evidence was not prejudicial. See Commonwealth v. Barbosa, 463 Mass. 116, 124 (2012); Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The Commonwealth made a single, passing reference to the defendant's possession of firearms. Defense counsel quickly established that the defendant legally possessed those firearms. This evidence was not discussed by either attorney in closing arguments, and was not otherwise brought to the jury's attention. The jury acquitted the defendant of breaking into a dwelling in the nighttime, the most serious charge against him, and also acquitted him of the dangerous weapon element of assault and battery. We are confident that the passing reference to the defendant's legal possession of firearms had no negative effect on the jury.

Judgments affirmed.

FOOTNOTES

2.   Because the victim testified that these events occurred as a single episode, the jury did not have to be unanimous as to which exact touching constituted the assault and battery. See Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting Commonwealth v. Santos, 440 Mass. 281, 285 (2003) (“[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required”).