COMMONWEALTH v. MATHIEU (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of, among other things, assault in violation of G. L. c. 265, § 13A. He raises a single issue on appeal: the sufficiency of the evidence to support his assault conviction.

We apply the familiar standard from Commonwealth v. Latimore, 378 Mass. 671, 676-777 (1979), to determine whether, viewing the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the Commonwealth, any reasonable juror could have found all the elements of the offense proved beyond a reasonable doubt.

The judge instructed the jury that while there are two forms of assault, attempted battery and threatened battery, the Commonwealth's theory was that the defendant had threatened battery. The judge therefore only instructed the jury as to the elements of threatened battery.² As the judge correctly instructed, when the charge is assault under a threatened battery theory the Commonwealth must prove that the defendant has engaged in objectively menacing conduct with the specific intent of “causing apprehension of immediate bodily harm on the part of the target.”³ Commonwealth v. Chambers, 57 Mass. App. Ct. 47, 49 (2003). Furthermore the victim must be put in apprehension of immediate bodily harm. Commonwealth v. Porro, 458 Mass. 526, 531 (2010). The defendant argues that there was insufficient evidence to support a finding beyond a reasonable doubt that the defendant engaged in objectively menacing conduct with the intent to put the victim in apprehension of immediate bodily harm.

Viewing the evidence in the required light, a reasonable juror could have found that when Officer Rosnick, the victim, appeared on the scene, the officer, with a taser ready, ordered the defendant to get down. The defendant refused, swore at the officer, said that he would like to fight him, that he was going to hurt him, and that he was a union ironworker or bridge worker. The defendant then squared off and took a step toward the officer.

This evidence, taken as a whole, including the defendant taking a step toward the victim, could have been found by a reasonable juror to amount to objectively menacing conduct undertaken with the intent of causing apprehension of immediate bodily harm on the part of victim.

Judgments affirmed.

FOOTNOTES

2.   We conclude, and the parties do not argue otherwise, that the sole theory of assault that the jury considered was a threatened battery. Supporting this conclusion were the judge's instructions, limited to the elements of threatened battery, and the judge's statements during arguments on the defendant's motion for a required finding of not guilty on the assault charge. The judge found no evidence of an attempted battery but that the assault charge “can go to the jury only on threatened” battery theory.

3.   The elements of attempted battery assault differ from the elements of threatened battery assault. “A defendant must intend a battery to be guilty under the attempted battery theory, but a defendant need not intend to strike the victim to be guilty under the threatened battery theory.” Commonwealth v. Porro, 458 Mass. 526, 531 (2010).