Opinion
19-P-854
06-19-2020
COMMONWEALTH v. ALFRED ANDREWS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Alfred Andrews, was indicted on charges of aggravated rape, assault and battery causing serious bodily injury, and assault by means of a dangerous weapon. A jury acquitted him on the charges of rape and assault by means of a dangerous weapon and convicted him of assault and battery causing serious bodily injury. On appeal, the defendant claims that the Commonwealth failed to prove an essential element of crime: that the victim suffered a serious bodily injury. We affirm.
General Laws c. 265, § 13A, provides three alternative definitions of "serious bodily injury": "[1] a permanent disfigurement, [2] loss or impairment of a bodily function, limb or organ, or [3] a substantial risk of death." G. L. c. 265, § 13A (c). The three alternative definitions do not establish distinct "theories of guilt," or different ways of committing the crime, but rather set forth "related ways of proving" the element of serious bodily injury. Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 264-265 (2020). Accordingly, "a reviewing court need not examine the evidence separately as to each definition of serious bodily injury in G. L. c. 265, § 15A (d), to uphold a conviction against a sufficiency challenge. What is required is that there be sufficient evidence of serious bodily injury under at least one of the definitions." Id. at 265-266.
Although Inoa dealt with G. L. c. 265, § 15A (d), §§ 13A (c) and 15A (d) "set forth substantially identical definitions of 'serious bodily injury.'" Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 164 (2005).
Inoa disposes of the second argument in the defendant's brief. The jury were not required to analyze the evidence under each definition or to reach specific unanimity on one of the three alternative definitions, and the judge was not required to instruct the jury in this manner. There was no error, let alone a substantial risk of miscarriage of justice. See Inoa, 97 Mass. App. Ct. at 264-266.
We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could find the elements of the crime proven beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The victim testified that the defendant punched her in the face three times, shattering her left eye socket, breaking her nose and jaw, and causing her to lose a back molar and piece of another tooth. Her nose was "deviated," she could not breathe through her left nostril, and she needed surgery to repair the damage. She also required surgery for her broken jaw and teeth; she had to have her jaw wired shut and she subsisted on a liquid diet for twenty-one weeks. At the time of trial, she still had trouble seeing out of her left eye and breathing out of her left nostril. She also suffered significant facial scarring from her injuries, including a scar on her chin. The medical records, which were admitted without objection, corroborated the victim's testimony. The records plainly showed, and allowed the jurors to conclude without the aid of expert testimony, that the victim suffered broken facial bones and teeth. Contrast Commonwealth v. Scott, 464 Mass. 355, 360-362 (2013) (evidence of impairment of victim's liver insufficient where victim's testimony "provided little evidence regarding the impact of the injury to her liver," and jurors could not infer from medical records, without medical expert testimony, "how any injury affected the liver's ability to fulfil its functional role").
"Loss or impairment of a bodily function need not be permanent to meet the definition of 'serious bodily injury.'" Commonwealth v. Marinho, 464 Mass. 115, 118 (2013). The injuries that the victim described satisfied the definition. See id., and cases cited therein. Although the jury may have disbelieved parts of the victim's testimony, their verdict indicated that they credited her testimony regarding the assault and battery and the injuries she suffered as a result. "The jury are free to believe or disbelieve any or all of the evidence they hear." Commonwealth v. Merry, 453 Mass. 653, 661 (2009). Viewing the evidence in the light most favorable to the prosecution, as we must, the evidence of serious bodily injury was sufficient to sustain the conviction.
Judgment affirmed.
By the Court (Massing, Shin & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 19, 2020.