COMMONWEALTH v. AUSTIN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a jury trial of stalking, strangulation or suffocation, kidnapping, assault and battery by means of a dangerous weapon (ABDW) on a child under the age of fourteen, assault and battery causing serious bodily injury (AB-SBI), intimidation of a witness, assault and battery on a household member, and assault and battery. On appeal the defendant argues that the trial judge abused her discretion by admitting an excessive amount of prior bad act evidence and by allowing the Commonwealth to elicit the evidence through the use of leading questions. The defendant also challenges the jury instruction on serious bodily injury and argues that his conviction of ABDW on a child is barred by the statute of limitations. We agree with the defendant that the instruction on serious bodily injury was erroneous and thus reverse the conviction of AB-SBI. We affirm the remaining convictions.

1. Prior bad acts. The defendant and the adult victim started dating in 1998. The conduct underlying the charges occurred between 2009 and 2015. Over the defendant's objections, the trial judge allowed the Commonwealth to elicit evidence -- primarily through direct examination of the victim - - regarding abusive acts committed by the defendant against the victim earlier in their relationship. After the victim testified, the defendant moved for a mistrial based on the volume of bad act evidence admitted over his objections. The judge denied the motion, concluding that the evidence was admissible for nonpropensity purposes pursuant to Mass. G. Evid. § 404(b)(2) (2016).

We discern no abuse of discretion in the judge's ruling. See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007) (“Determinations of the relevance, probative value, and prejudice of [bad act] evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error”). The bad act evidence was admissible for several nonpropensity purposes, including to show the history and nature of the relationship between the defendant and the victim, see Commonwealth v. Oberle, 476 Mass. 539, 550 (2017), and to show that the victim feared the defendant, which could have explained her delay in reporting the abuse, see Commonwealth v. Melton, 77 Mass. App. Ct. 552, 558-559 (2010); Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394-395 (2006). The defendant does not argue otherwise. Instead, he challenges only the volume of the evidence, claiming that it overwhelmed the case and thereby deprived him of a fair trial.

In Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006), on which the defendant relies, the court cautioned that “a judge must guard against the risk that evidence of prior bad acts will divert the jury's attention from the charged acts.” We conclude that, here, the judge adequately guarded against such a risk. The bad act evidence, while not insubstantial, did not overwhelm the other evidence. Unlike in Dwyer -- where more of the victim's direct testimony related to the uncharged assaults than to the charged assaults, see id. at 128 -- the bulk of the victim's testimony and that of the other witnesses in this case concerned the charged conduct. The victim testified extensively as to the six years of abuse that formed the bases of the charges. Furthermore, the judge “provided [two] limiting instruction[s] to the jury regarding the prior bad act evidence when it was offered and again in [her] final charge, thus minimizing any prejudicial effect.” Commonwealth v. Almeida, 479 Mass. 562, 569 (2018). The Commonwealth also appropriately argued in closing that the evidence was offered “to put the current charges ․ in context.” Cf. Dwyer, supra at 129 (closing argument drew jury's attention to uncharged conduct). For these reasons, and on review of the record as a whole, we discern no abuse of discretion in the judge's finding that the risk of undue prejudice to the defendant did not outweigh the probative value of the evidence. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 74-76 (2018).

2. Leading questions. The defendant next argues that the judge abused her discretion by permitting the Commonwealth to use leading questions during direct examination of the victim in order to elicit the bad act evidence. “It is ․ well established that a judge may in his or her discretion allow leading questions during direct examination.” Commonwealth v. Federico, 70 Mass. App. Ct. 711, 718 (2007). Here, in response to a nonleading question, the victim testified that the defendant threatened her “with a gun,” a prior bad act that the Commonwealth had previously agreed not to offer in evidence. Consequently, the Commonwealth asked for permission to lead, which the judge granted “in order to achieve some level of avoidance of prejudice to [the defendant].” This ruling, to which the defendant did not object, was well within the judge's discretion and did not create a substantial risk of a miscarriage of justice.

3. Instruction on serious bodily injury. To sustain a conviction under G. L. c. 265, § 13A (b), the Commonwealth must prove that the defendant committed an assault and battery resulting in “serious bodily injury,” defined as “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.” G. L. c. 265, § 13A (c). In accordance with the statute, the judge instructed the jury that “serious bodily injury” means “a permanent disfigurement, loss, impairment of a bodily function.”² Over the defendant's objection, the judge then gave the following instruction: “Scars or marks resulting from cuts that have healed are still permanent because they will be visible as long as the victim lives.” In overruling the defendant's objection, the judge reasoned that “[a]ll scars qualify ․ as serious bodily injury, simply because they are permanent.”

We agree with the defendant that the instruction was erroneous. It is true, as the Commonwealth argues, that evidence of scarring can be sufficient to prove permanent disfigurement. See Commonwealth v. Heywood, 484 Mass. 43, 50 (2020); Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 266-267 (2020). It is also true that “the fact that an injury can be or was concealed or repaired does not preclude a finding of permanent disfigurement.” Heywood, supra. But that a jury could find a scar to be permanently disfiguring does not mean that all scars qualify, as the judge reasoned. Rather, as the Supreme Judicial Court recently explained in Heywood,³ a bodily injury is permanent if it is “significant and enduring” and disfiguring if it “affects the appearance or the character of a person's bodily integrity.” Id. It was for the jury to determine whether the evidence of scarring in this case established that the victim suffered an injury that qualifies as permanent and disfiguring. Thus, the instruction -- which conveyed that all scars are “permanent because they will be visible as long as the victim lives” -- was erroneous.

On the question of prejudice, we need not resolve a dispute between the parties as to whether our standard of review is harmless beyond a reasonable doubt (as the defendant argues) or prejudicial error (as the Commonwealth argues). Instead, we will assume, without deciding, that the Commonwealth is correct because we conclude that the conviction cannot stand under either standard.

An error is prejudicial if “there is a reasonable possibility that the error might have contributed to the jury's verdict.” Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017), quoting Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring). The evidence of serious bodily injury here consisted of the victim's testimony that the defendant hit her in the eye, opening a deep cut and leaving a scar on her eyebrow that she still has; testimony from the victim's son that her eyebrow was “clear” and he could see “a little scratch”; testimony from the victim's older daughter that at some point after the summer of 2010 she saw a scar on the victim's eye; and a photograph of the victim, in which her face is visible. We cannot say with confidence that this evidence was so overwhelming that “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). See Wolfe, supra at 150-151. Although the Commonwealth argues that the defendant did not dispute the element of serious bodily injury or the existence of the scar, it was the Commonwealth's burden to prove each element of the crime, even if uncontested. See Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986). And again, to establish permanent disfigurement, the Commonwealth had to prove not just that the victim had a scar, but that she sustained a “significant and enduring injury that affect[ed] the appearance or the character of [her] bodily integrity.” Heywood, 484 Mass. at 50. We think that the confusing nature of the instruction created a reasonable possibility that the jury believed that all scars qualify as permanently disfiguring. This risk was heightened by the Commonwealth's comment during closing argument that, “because the scar is something that [the victim] still has,” it constituted serious bodily injury. For these reasons we conclude that the error was prejudicial and requires reversal of the AB-SBI conviction.⁴

4. Statute of limitations. Finally, the defendant argues that there is “a reasonable possibility” that his conviction of ABDW on a child is barred by the statute of limitations. But at no point in the trial proceedings did the defendant raise a statute of limitations defense, and he presented no evidence that would support such a defense. See Commonwealth v. Shanley, 455 Mass. 752, 780-781 (2010). The argument is therefore waived. See Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 372 (2003) (statute of limitations is “an affirmative defense that is waived if not raised”).

5. Conclusion. On the charge of assault and battery causing serious bodily injury, the judgment is reversed and the verdict is set aside. The remaining judgments are affirmed.

So ordered.

Reversed in part; affirmed in part

FOOTNOTES

2.   Contrary to the defendant's contention, the Commonwealth had the burden of proving only one of the statutory definitions of serious bodily injury. See Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 265-266 (2020). We also reject the defendant's argument, to the extent made, that the missing disjunctive “or” in the instruction added to the Commonwealth's burden of proof. See Commonwealth v. Buttimer, 482 Mass. 754, 766 n.17 (2019), quoting United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999), cert. denied, 528 U.S. 1097 (2000) (“A jury instruction that ‘add[s] elements to the government's burden of proof beyond those required by statute ․ may not become the law of the case’ if it is ‘patently incorrect’ ”).

3.   The judge and the parties did not have the benefit of Heywood.

4.   Given our conclusion, we need not address the defendant's argument that the judge should have instructed on the lesser included offense of assault and battery.