Opinion
No. 15–P–279.
05-26-2016
COMMONWEALTH v. Elizabeth ROMERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Elizabeth Romero, appeals from her conviction of assault and battery, in violation of G.L. c. 265, § 13A(a). The defendant argues that the judge erroneously denied her motion for a required finding of not guilty and incorrectly instructed the jury as to the burden of proof and the elements of the crime. We affirm.
The jury found the defendant not guilty of eight other charges.
A. Background. The defendant and her husband, Carlos Lopez, lived across the street from the victim, Mary Medley, and her husband, Jamie Mallett. Prior to the incident that formed the basis for the charges against the defendant, a dispute between the victim's son and the defendant's daughter had left the defendant “very angry.” On April 2, 2010, the defendant and Lopez engaged in a verbal argument with Medley and Mallett, which intensified into a physical confrontation among the neighbors. The fight started in Medley and Mallett's front hallway and spiraled into their home. Medley was not injured, and the defendant, Lopez, and two other unidentified men left the home.
Less than five minutes later, the defendant alone reentered Medley and Mallett's home with a machete. She attempted to kick Medley's five year old son. Mallett punched the defendant to protect his son. Medley then felt someone pull her hair and throw her to the ground. Mallett, who saw Medley thrown to the floor, pushed the defendant off Medley. At that point, Lopez had returned with the two unidentified men and attacked Mallett. Medley's daughter testified that she saw the defendant and her mother “fighting.”
B. Discussion. 1. Motion for a required finding of not guilty. “A defendant is entitled to a required finding of not guilty only when ‘the evidence is insufficient as a matter of law to sustain a conviction on the charge.’ “ Commonwealth v. Andrews, 427 Mass. 434, 440 (1998), quoting from Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The question before us is “whether, viewing the evidence in a light most favorable to the Commonwealth, ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The Commonwealth may prove the crime of assault and battery under either of two separate theories, intentional battery or reckless battery. See Commonwealth v. Ford, 424 Mass. 709, 711 (1997). The Commonwealth proceeded on the first theory, intentional assault and battery, which is defined as “the intentional and unjustified use of force upon the person of another, however slight.” Ibid., quoting from Commonwealth v. Bruno, 396 Mass. 622, 625 (1986). See Commonwealth v. Porro, 458 Mass. 526, 529 (2010).
The defendant argues that the evidence failed to establish that she intentionally touched Medley. We disagree. Mallett testified that when the defendant returned to their home, he “pushed her off [his] wife.” Medley, referring to the same incident, testified that “somebody had grabbed my hair. I was thrown to the ground.” Though Medley did not see who assaulted her, she said, “I felt whoever it was come off my back.” In addition, Medley's daughter testified that she saw her mother and the defendant “fighting.” Viewed in the light most favorable to the Commonwealth, based on the combination of Medley's testimony with that of her husband and daughter, a rational juror could have found beyond a reasonable doubt that the person who grabbed Medley's hair and threw her to the ground was the same person that Mallett pushed off her back—the defendant—and that person was guilty of assault and battery.
2. Jury instruction. “In the absence of proper objections at trial, our review is limited to a determination whether the alleged errors created a substantial risk of a miscarriage of justice.” Commonwealth v. Gabbidon, 398 Mass. 1, 7 (1986). “An erroneous jury instruction poses a substantial risk of a miscarriage of justice if it ‘materially influence[d]’ the jury's verdict.” Commonwealth v. Drummond, 76 Mass.App.Ct. 625, 630 (2010), quoting from Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). “[C]onstitutionally erroneous jury instructions are not to be viewed in insolation but rather in the context of the charge as a whole, so that a reviewing court can assess the possible impact of the error on the deliberations of a reasonable juror.” Commonwealth v. Repoza, 400 Mass. 516, 519 (1987), citing Francis v. Franklin, 471 U.S. 307, 315 (1985).
Here, the defendant makes two distinct claims of error in the judge's instructions to the jury. First, she argues that the instruction given confused the jury as to the burden of proof necessary for the offense of assault and battery. We agree that the judge obviously misspoke when he stated, “If, however, you do not find that the defendant [sic ] has proven beyond a reasonable doubt each of the elements of this, then you shall find the defendant not guilty of this charge.” Viewing the charge as a whole, however, the misstatement did not rise to the level of a substantial risk of a miscarriage of justice. See Repoza, supra; Commonwealth v. Rodriguez, 437 Mass. 554, 560 (2002). The judge properly addressed the burden of proof repeatedly throughout the charge, squarely placing the burden on the Commonwealth at the beginning of the instructions, as well as at the beginning of the instruction on assault and battery, and while describing each of the elements of the crime. After he misspoke, the judge reiterated the Commonwealth's burden three more times—once when addressing affirmative defenses, and twice when instructing the jury on the general rules governing criminal cases, emphasizing that “[t]he defendant has absolutely no burden to offer any evidence whatsoever.... A defendant has a right at all times to rely on the presumption of innocence and require the Commonwealth to prove its case beyond a reasonable doubt.” Because an “[e]rror in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context,” and because the charge as a whole correctly and repeatedly instructed the jury on the burden of proof, the trial judge's single misstatement does not rise to the level of a substantial risk of a miscarriage of justice. Commonwealth v. Grant, 418 Mass. 76, 85 (1994).
Second, the defendant contends that the judge erred by failing to instruct that an offensive battery must occur without the victim's consent. The judge instructed, “Third, the Commonwealth must prove beyond a reasonable doubt that the offense [sic ] was harmful or offensive. A harmful touching is a touching which is physically or potentially physically harmful. An offensive touching is one that is an affront to a person's integrity.”
“Offensive battery” is one form of intentional battery; the other is “harmful battery.” Commonwealth v. Eberhart, 461 Mass. 809, 818 & n. 13 (2012). Consent is not an issue where the touching is violent or harmful. “But an offensive touching is so only because of lack of consent. The affront to the victim's personal integrity is what makes the touching offensive.” Commonwealth v. Burke, 390 Mass. 480, 483 (1983). In other words, “what makes the touching offensive is ... that the victim did not consent to it.” Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 477 (2008). Although the judge's instruction was consistent with language in Burke, supra, a better instruction would have been that an offensive battery is one done without the victim's consent. See Criminal Model Jury Instructions for Use in the District Court 6.140 (2009) (“Third: That the touching was either likely to cause bodily harm to [alleged victim], or was done without his [her] consent”).
However, the defendant did not object, and the instruction did not create a substantial risk of a miscarriage of justice. See Drummond, 76 Mass.App.Ct. at 630. Placing the burden on the Commonwealth to show that the offensive touching was “an affront to a person's integrity,” if anything, necessitated a higher standard of proof than simply showing the victim did not consent. Moreover, no view of the evidence suggested that Medley consented to the touching in question. The defendant jumped on Medley's back, pulled her hair, and threw her to the ground. We recognize an omission in an instruction can create a substantial risk of a miscarriage of justice even if it does not concern a contested issue; however, in this case, and under these facts, we see no substantial risk that any error might have materially influenced the jury. See Gabbidon, 398 Mass. at 5 (“[W]hether a particular element of a crime was contested at trial is important to a determination whether a trial error resulted in a substantial risk of a miscarriage of justice”).
Judgment affirmed.