COMMONWEALTH v. BRIEN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Boston Municipal Court, the defendant, Daniel M. O'Brien, was convicted of assault and battery in violation of G. L. c. 265, § 13A (a).¹ He was sentenced to two years in the house of correction, with six months to serve and the remainder suspended for two years, and a term of probation thereafter. He filed a motion to revise or revoke his sentence, which the judge denied. On appeal, he challenges the sufficiency of the evidence and his sentence. We affirm.

Sufficiency of the evidence.² Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence supported the following narrative. The victim arrived at the home where his estranged spouse (mother) resided to retrieve his daughters' cellular telephones.³ The defendant was at that time residing with the mother. When the victim appeared, the defendant and mother became enraged and stepped out of their apartment, yelling at the victim. As the victim backed down the stairs in fear, the defendant charged at him. The defendant punched the victim in the jaw, knocking out one tooth altogether and chipping another in half. Frightened, the victim fled and sought refuge at the police station. As a result of the assault, the victim also suffered a severe laceration on his lip, requiring stitches. Eventually, part of his lip became septic and had to be removed, leaving a deformity.⁴

The defense at trial was that the victim's injuries likely resulted from tripping on the stairs in a drunken stupor. The mother testified that because of the restraining order, see note 3 supra, she did not come out of the apartment. Instead, on the advice of her divorce lawyer, she took photographs as the victim walked away from the residence yelling. The defendant also testified that he did not leave the apartment; he explained that he had dislocated his ankle approximately six weeks before the incident and had limited mobility as a result of surgery and his cast. He contended that he could not possibly have had the physical stamina required for the altercation as described by the victim. Despite the defendant's testimony, his medical records stated “activity ability, minimum assistance” and “patient activity, ambulates; bathroom privileges.”

The defendant argues that the evidence submitted by him in defense made the victim's version “improbable,” supported only by the victim's own testimony. While the jury could have believed the defendant's version, they were not required to do so. The question of credibility is for the jury. Commonwealth v. James, 424 Mass. 770, 785 (1997). Indeed, the defendant's medical records called into question his claimed limited mobility and supported the inference that he was sufficiently mobile to have attacked the victim as described. Viewed in the light most favorable to the Commonwealth, id. at 784, there was ample evidence to support a conviction of assault and battery. See Commonwealth v. Moore, 36 Mass. App. Ct. 455, 459 (1994), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931) (“The crime of assault and battery is defined as the 'intentional and unjustified use of force upon the person of another, however slight'”).

Sentencing. The defendant next contends that the judge abused his discretion in denying the defendant's motion to revise or revoke the sentence because the judge improperly considered the defendant's pending charges. He also maintains that because this was his first offense, the sentence was excessive. The sentence was within the statutory limits. See G. L. c. 265, § 13A (a) (permitting imprisonment of not more than two and one-half years). See also Commonwealth v. Donohue, 452 Mass. 256, 264 (2008) (“The judge has the authority to decide the length of a defendant's sentence, provided that it is within the limits set forth by the statute under which the defendant has been convicted”). Further, the judge explained that he applied the guidelines giving aggravating weight to the nature of the victim's injuries. Although the jury did not convict the defendant of assault and battery causing serious bodily injury, the judge's consideration of the victim's injuries was not an abuse of discretion. See Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002) (“a judge has considerable latitude to fashion an appropriate individualized sentence and may take into consideration, inter alia, a defendant's character, behavior, background, and amenability to rehabilitation”). Finally, while the defendant avers that the judge considered the defendant's pending criminal charges, the judge expressly denied any such reliance.

Judgment affirmed.

Order denying motion to revise or revoke sentence affirmed.

FOOTNOTES

1.   The jury found the defendant not guilty of assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b).

2.   The defendant did not move for a required finding at the close of the Commonwealth's case in chief.

3.   The mother and the victim were in divorce proceedings. The victim had obtained a c. 209A restraining order against the mother, one term of which was an order requiring the mother to return the daughters' cellular telephones.

4.   Plastic surgery was recommended, but the victim declined it.