Opinion
No. 12–P–28.
2013-01-25
COMMONWEALTH v. Michael DAVIS.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of two counts of assault and battery for (1) grabbing the victim by the neck, and (2) grabbing the victim's shirt and necklace, in violation of G.L. c. 265, § 13A.
The trial judge instructed the jury on both the harmful and offensive varieties of assault and battery. The defendant argues on appeal that the jury instructions were error and created a substantial risk of a miscarriage of justice because they failed to define offensive battery as a nonconsensual touching. We affirm.
The defendant also was charged with attempted murder, stalking, and a third count of assault and battery (for throwing a cup of cold water on the victim). The jury acquitted the defendant of stalking and the third assault and battery charge, and the trial judge allowed a motion for a required finding of not guilty on the attempted murder charge.
“Omitting an essential element of the crime charged ... is an error of constitutional dimension,” but it “is not among the very limited class of structural errors subject to automatic reversal.” Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 6–7 (2001). Where, as here, the defendant failed to object to an incomplete instruction before the jury retired to deliberate, “we consider whether the omission created a substantial risk of a miscarriage of justice.” Id. at 7. To prove assault and battery, the Commonwealth must show that the defendant (1) intentionally (2) touched the victim (3) in a harmful or offensive manner (4) without justification or excuse. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 616 (2010). The defendant argues that the judge erred by failing to specify that lack of consent is required for offensive assault and battery. Yet the defendant acknowledges that the trial evidence was sufficient to sustain a conviction for either harmful or offensive assault and battery, and that the judge gave a complete and correct instruction regarding harmful assault and battery. The defendant also concedes that a jury need not reach unanimity regarding whether a battery was harmful or offensive. See Commonwealth v. Santos, 440 Mass. 281, 289 (2003) (rule of specific unanimity “does not automatically extend to every alternate method by which a single element may be established”), overruled on other grounds by Commonwealth v. Anderson, 461 Mass. 616, 633 (2012). Because there was sufficient evidence for the jury to convict of harmful assault and battery, even if there were error, there was no substantial risk of a miscarriage of justice.
See Commonwealth v. Laurore, 437 Mass. 65, 82 (2002).
We also note that the victim's consent was not a live issue at trial. An incomplete instruction on offensive battery was therefore not “sufficiently significant in the context of the trial to make plausible an inference that the jury's result might have been otherwise but for the error.” Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986).
Judgments affirmed.