Opinion
21-P-140
04-27-2022
COMMONWEALTH v. Jeffrey S. SEWARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted after a jury trial of assault and battery on a family or household member, G. L. c. 265, § 13M, the defendant appeals. He argues that the Commonwealth did not prove each element of the offense, and the judge erred in declining to instruct the jury on self-defense. We affirm.
Background. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence at trial established as follows. The victim and the defendant met in about May 2019 and were in a dating relationship for about six weeks. They spent what the victim described as a "lot of good times together," including a week-long vacation with her family. Because the victim did not have a driver's license, she allowed the defendant to drive her car.
At about 11:00 P.M. on July 15, 2019, the victim and defendant went to a motel room and visited with another couple, C.V. and C.Y., drinking alcohol and watching television. When C.Y. suggested that they go for a drive, the victim asked the defendant for the keys to her car. The defendant suddenly became enraged. He grabbed the victim by both arms, forced her onto the bed, and pinned her down. Then the defendant put his right hand on the victim's throat and applied pressure, choking her. C.Y. pulled on the defendant and managed to get him off the victim three or four times, but each time, he put his hand back on the victim's throat. While trying to separate the defendant from the victim, C.Y. ripped the defendant's shirt. During the assault, the victim never hit or struck the defendant.
When the victim yelled, "call the police," the defendant ran out of the motel room. He went to the victim's car, retrieved his backpack, left her car keys in the car, and then went to a different motel room where another friend was staying.
The victim telephoned the police. An officer arrived and noted that the victim's lip was bleeding and swollen and there were red marks on her neck; police photographed those injuries. Interviewed by the officer, the defendant said that the victim wanted to leave but had been drinking and did not have a driver's license, so he grabbed her by the waist to prevent her from leaving. Asked if he hit the victim, the defendant said no. There were no apparent injuries on the defendant, who was shirtless, nor did he complain of any.
The victim testified that she got hit in the lip, and her lip was cut and swollen; she was not sure that the defendant did it, but no one else hit her.
Later that day, the victim noticed bruises on her arms where the defendant had grabbed her. She photographed them.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to prove that he committed the offense of assault and battery on a family or household member. We disagree.
As the judge instructed the jury, the Commonwealth was required to prove that (1) the defendant touched the victim; (2) the defendant intended to touch the victim; (3) the touching was either likely to cause bodily harm to the victim or was offensive; and (4) the defendant and the victim were family or household members at the time of the offense. See Instruction 6.275 of the Criminal Model Jury Instructions for Use in the District Court (2019).
The defendant argues that the evidence was insufficient to show that he intentionally touched the victim in a manner that was offensive or likely to cause bodily harm, because the victim's testimony "varied" from that of the officer and was not "consistent" or "credible." Questions as to the credibility and weight of the evidence are the province of the jury. See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 433 (2006). In the light most favorable to the Commonwealth, the evidence, which included not only the victim's testimony but also photographs and the officer's testimony, was certainly sufficient to prove intentional assault and battery. See Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021) (victim's testimony alone sufficient to prove sexual assault).
The defendant also argues that the evidence was insufficient to prove that he and the victim were family or household members at the time of the offense. The victim's testimony that she and the defendant had been dating for about six weeks, which included a week-long beach vacation with her family, sufficed to prove that they were in a substantive dating relationship. See Commonwealth v. Dustin, 476 Mass. 1003, 1004 (2016) (testimony that over several months defendant and victim participated in daily activities together and defendant regularly drove victim's car sufficient to establish substantive dating relationship). Contrast C.O. v. M.M., 442 Mass. 648, 654 (2004) (single movie date did not support finding of substantive dating relationship).
2. Lack of self-defense instruction. The defendant argues that the judge should have instructed the jury on self-defense. Because he asked for the instruction, we review the issue for prejudicial error, and in doing so, we consider the facts in the light most favorable to the defendant, taking his testimony as true. See Commonwealth v. Abubardar, 482 Mass. 1008, 1009 (2019).
The defendant testified that he was falling asleep on the motel room bed when he heard the victim and C.Y. talking about going for a drive; because they had been drinking heavily, the defendant grabbed the keys from the nightstand and said, "you're not going anywhere." The victim argued with him and became agitated. The victim grabbed the car keys out of the defendant's hand. C.Y. then grabbed the defendant's shirt from behind, ripping it, and tore off his necklace. The defendant repeatedly testified that he never hit the victim: he never punched her or grabbed her by the throat. He testified, "I did not touch her at all." He denied telling the officer that he had grabbed the victim around the waist to prevent her from leaving; instead, he told the officer that he had grabbed the keys.
The defendant was entitled to a self-defense instruction if the evidence, viewed in the light most favorable to him and without regard to credibility, supported a reasonable doubt that "(1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness" (quotation and citation omitted). Commonwealth v. King, 460 Mass. 80, 83 (2011).
The defendant argues that he was entitled to a self-defense instruction based on his testimony that the victim was the first to use physical force when she grabbed the keys from him. The defendant's testimony that the victim grabbed her car keys from his hand did not support an inference that the defendant had any reasonable concern for his physical safety. Indeed, the defendant never testified that he was in fear for his personal safety. See Commonwealth v. Pike, 428 Mass. 393, 397-398 (1998). Contrast Abubardar, 482 Mass. at 1009-1010 (defendant testified that victim instigated altercation by hitting and scratching defendant, who was trying to "hold" and "contain" victim); Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699-700 (2002) (defendant testified that victim attacked her from behind, slammed her back, and grabbed her in a hold). In addition, the defendant "flatly denied" ever touching the victim. Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130 (1997).
Nor, contrary to the defendant's claim, did his testimony that C.Y. pulled on him from behind and tore his shirt give rise to reasonable grounds for him to use physical force against the victim. Cf. Commonwealth v. Hinds, 457 Mass. 83, 90 (2010) (reasonable provocation must come from the victim). The judge did not err when she declined to give the instruction.
Judgment affirmed.