Opinion
No. 12–P–726.
2013-10-4
COMMONWEALTH v. Anthony DYER.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant appeals from his convictions of two counts of aggravated assault and battery,
one count of assault and battery, and one count of threatening to commit a crime. The underlying incidents which led to his convictions involved physical altercations with his girlfriend.
The aggravating factor alleged was the victim's pregnancy and the defendant's knowledge of it. See G.L. c. 265, § 13A( b )(ii).
Admission of testimony relating to the defendant's possession of a knife at the time of his arrest. The defendant asserts error in the admission of testimony by the arresting officer that he was holding a knife at the time of his arrest on August 6, 2011. He argues that because none of the charges involved any allegation relating to a weapon, the reference was irrelevant and was likely to inflame the jury. We discern no error.
The evidence included testimony that the defendant battered the victim repeatedly and threatened to kill her and her daughter during the encounter that immediately preceded the arrest. His possession of the knife was clearly relevant to his state of mind and intent to inflict harm. Admission of this evidence was well within the judge's considerable discretion. See Commonwealth v. Smiley, 431 Mass. 477, 484, 727 N.E.2d 1182 (2000). Alternative theories of guilt, proximate cause, and sufficiency. The defendant asserts that two separate theories of guilt were submitted to the jury with respect to the charge of aggravated assault and battery on July 8, 2011. No objection was raised to the jury instructions or the form of the verdict slip. We therefore review for a substantial risk of a miscarriage of justice.
The defendant claims that we should deem the issue preserved by a sidebar conversation which the transcript shows as “inaudible.” The Commonwealth points out with some force that the sidebar was requested by the prosecutor, not the defense, rendering the supposition highly unlikely. As we find no error in the testimony, we do not address this dispute.
The jury could have concluded from the evidence that the defendant punched and slapped the victim in the stomach, face, and ribs, and that she fled from the defendant's house to escape this onslaught and the fear it caused her. During her flight she cut her leg while jumping over a fence. The defendant complains that the general guilty verdict does not distinguish between the direct attack and the injury sustained at the fence; he further asserts that this ambiguity defeats the verdict because the Commonwealth failed to introduce sufficient evidence of a causal connection between his behavior and the injury sustained during flight.
We disagree. The jury could have concluded from the evidence that the leg injury occurred within ten minutes of the defendant's having struck the victim and that she was consequently upset, engaged in flight, and was in fear of further attacks when she jumped the fence.
The defendant does not dispute that, as to the July 8 incident, there was sufficient evidence to convict him of intentional assault and battery.
Insomuch as there was ample evidence of both the direct and indirect infliction of harm by the defendant as a result of his attacks, we conclude that that there was no risk that justice miscarried. Compare Commonwealth v. Regil, 82 Mass.App.Ct. 275, 276, 972 N.E.2d 64 (2012) (Commonwealth presented sufficient evidence with respect to each form of liability).
Moreover, even if the defendant had requested a specific unanimity instruction, he was not entitled to it: we perceive no significant likelihood that the conviction in this case resulted from different jurors concluding that the defendant committed different acts. See Commonwealth v. Conefrey, 420 Mass. 508, 514, 650 N.E.2d 1268 (1995) (holding that specific unanimity instruction was required, if requested, “where there was a significant likelihood that the conviction resulted from different jurors concluding that the defendant committed different acts”). See also Commonwealth v. Mistretta, 84 Mass.App.Ct. 906, 906 n. 2 (2013).
We do not agree with the defendant's argument that the jury were presented with distinct “theories” of the crime, the choice of which required their unanimity. See Commonwealth v. Porro, 458 Mass. 526, 534, 939 N.E.2d 1157 (2010), citing Commonwealth v. Santos, 440 Mass. 281, 289, 797 N.E.2d 1191 (2003).
Unanimity instruction for intentional acts. Finally, the defendant asserts that the judge should have instructed the jury sua sponte that they must be unanimous as to which of the multiple instances of intentional battery alleged to have occurred on July 8 supported their verdict. We find this argument unavailing for substantially the reasons set forth above and in the Commonwealth's brief, at pages 36–40. See Commonwealth v. Fortuna, 80 Mass.App.Ct. 45, 55, 951 N.E.2d 687 (2011), quoting from Commonwealth v. Thatch, 39 Mass.App.Ct. 904, 905, 653 N.E.2d 1121 (1995).
Judgments affirmed.