COMMONWEALTH v. NSHIMYIMANA (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), and sentenced to two and one-half years in the house of correction. On appeal, he challenges the denial of his motion for a required finding of not guilty.² We affirm.

Discussion. “In assessing the sufficiency of the evidence, we consider ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Davis, 487 Mass. 448, 462 (2021), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the jury could have found that on October 27, 2018, the victim was drinking with the defendant and the defendant's friend at her house, when she made a comment to the defendant that “he didn't take ․ very well.” The defendant left the room. The victim was sitting down and looking at her phone when the defendant returned, pulled a sharp kitchen knife from his pocket, and then slashed the victim's throat causing it to bleed. The defendant's friend, who had been in another room, returned when he heard the victim scream, “Grab him. He stabbed me.” The friend grabbed the defendant's arm and took the knife from him.

The victim was taken to the hospital by ambulance where she received stiches in connection with the cut on her neck. At the time of trial, the victim still had a scar on her neck from the injury she received in the incident.

As relevant to the facts of this case, “[t]he offense of assault and battery by means of a dangerous weapon under G. L. c. 265, § 15A, requires that the elements of assault be present, that there be a touching, however slight, that that touching be by means of the weapon, and that the battery be accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.” Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 807 (2009), quoting Commonwealth v. Appleby, 380 Mass. 296, 308 (1980). See G. L. c. 265, § 15A (b). The evidence here, viewed in the light most favorable to the Commonwealth as Latimore requires, was sufficient to prove each of these elements. That there was evidence from which the jury could have found facts more favorable to the defendant, or acquitted him, does not alter our conclusion. See Commonwealth v. Sinforoso, 434 Mass. 320, 326-327 (2001) (“The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding” [citation omitted]).

To the extent that the defendant appears to argue that the evidence was insufficient because “none of the parties involved was a native English speaker,” the claim has no merit. First, because the challenge does not rise to the level of appellate argument, see Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), we need not consider it. In any event, the fact that the victim and the defendant's friend testified with the assistance of an interpreter has no bearing on the sufficiency of the evidence. The judge properly instructed the jury on the interpreter's role and on the jury's obligation to consider the witnesses’ testimony without consideration of the individual witnesses’ reliance on the interpreter.

Judgment affirmed.

FOOTNOTES

2.   The defendant is represented by counsel, who filed a Moffett disclaimer as to the appellate argument. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981).