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Appeals Court of Massachusetts.



Decided: February 19, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.1)


Following a jury trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon (motor vehicle) in violation of G. L. c. 265, § 15A (b), and negligent operation of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a). On appeal, the defendant challenges the sufficiency of the evidence and argues that the jury instruction on the mens rea required to prove the offenses was confusing and that, as a result, a new trial is warranted. We affirm.

Background. a. Commonwealth's case. Because the defendant challenges the sufficiency of the evidence, we describe the evidence presented at trial in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On the evening of August 24, 2018, the victim, Daniel Hunt, was walking through a parking lot on his way to a laundromat when, by happenstance, he ran into a former girlfriend, Paige Corello. Corello was sitting in the front passenger seat of a sport utility vehicle parked close to the side of a building. The passenger side door was open, and the two spoke briefly. The defendant, Corello's current boyfriend, was sitting in the driver's seat. When Hunt began to walk away, the defendant called Hunt a “faggot.” Hunt turned back toward the vehicle, and challenged the defendant to “step out and talk to [him] face to face.” The defendant then drove the vehicle at Hunt, who jumped and landed on the hood. The episode was recorded by a surveillance camera. The surveillance video, which was shown to the jury, corroborated Hunt's testimony about the incident.

b. The defendant's case. The defendant presented a different version of events. He called as witnesses Corello and Madeline Swanson, who lived nearby and claimed to have seen the episode. They testified that Hunt had behaved aggressively by pounding on the hood and roof of the vehicle with his hands and shouting at the defendant to get out of the vehicle. According to both Corello and Swanson, after Hunt began shouting and hitting the vehicle, the defendant backed up and drove away. Although the defendant did not testify, there was evidence that he reported the incident to the police, alleging that his vehicle had been damaged when Hunt punched and kicked it. The officer to whom the defendant reported the incident testified that the defendant told him that he backed his vehicle up and drove away to avoid contact with Hunt.

Discussion. a. Sufficiency. The Commonwealth's theory of culpability was that the defendant committed an intentional assault and battery. In order to meet its burden of proof, the Commonwealth was required to establish “an ‘intentional, unjustified touching, however slight, by means of [a] dangerous weapon’ ” (citation omitted). Commonwealth v. Ashford, 486 Mass. 450, 460 (2020). “[O]rdinarily innocuous items can be considered dangerous weapons when used in an improper and dangerous manner.” Commonwealth v. Sexton, 425 Mass. 146, 149 (1997).

We have reviewed the record, including the video that was played for the jury, and conclude that a rational jury could find all the elements of the offense beyond a reasonable doubt. The video depicts the defendant driving at Hunt, causing Hunt to jump and land on the hood just as Hunt testified. This conduct was sufficient to show that the defendant committed an intentional, unjustified touching by means of a dangerous weapon, namely, his vehicle, against Hunt.

The same evidence provided a sufficient basis from which the jury could reasonably infer beyond a reasonable doubt that the defendant drove his vehicle negligently. To prove negligent operation of a motor vehicle, the Commonwealth must prove that the defendant “(1) operated a motor vehicle, (2) upon a public way, (3) ․ negligently so that the lives or safety of the public might be endangered.” Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). Based on Hunt's testimony and the surveillance video, a rational jury could have concluded that the defendant drove his vehicle in an unreasonably dangerous manner that endangered the public.

b. Jury instruction. As the defendant acknowledges, the judge instructed the jury in accordance with the Model Jury Instructions for Use in the Superior Court on assault and battery by means of a dangerous weapon and negligent operation of a motor vehicle.2 He argues, however, that the instructions concerning the mens rea for the two offenses conflicted and risked confusing the jury such that it is impossible to know which of the two standards the jury applied. “Because the defendant did not object [to the instructions as given], we must determine whether the [alleged] error created a substantial risk of miscarriage of justice.” Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 93 (2019). We discern no error.

The judge's instructions, set forth in the margin, made clear that intent is an element of assault and battery by means of a dangerous weapon, but that it is not an element of negligent operation of a motor vehicle. The instructions on these two separate offenses did not “conflict” with one another as the defendant claims, and we conclude that there was no risk that the jury were confused.

Judgments affirmed.


2.   The judge instructed the jury as follows on the mens rea required for the offense of assault and battery by means of a dangerous weapon:“[T]he Commonwealth must prove beyond a reasonable doubt that the defendant intended to touch the alleged victim in this case with a dangerous weapon, in a sense that the defendant consciously and deliberately intended the touching to occur. And that the touching was not merely accidental or negligent.”The judge then instructed the jury on the offense of negligent operation of a motor vehicle and gave the following instruction with regard to intent:“If you find the defendant acted negligently, the defendant's intent on this charge is not relevant. It is important on the assault and battery dangerous weapon but [not] on the negligent operation of motor vehicle. If you find the defendant acted negligently, the defendant's intent is not relevant. You are not required to find that the defendant intended to act negligently or unlawfully on this charge. This is in that category of situations where public safety requires each driver to determine and to adhere to an objective standard of reasonable behavior. Therefore, the defendant's subject and intent is not relevant. The issue is whether or not he drove as a reasonable person would have under the circumstances, okay?”

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