Commonwealth v. Dufresne

83 Mass.App.Ct. 1110

982 N.E.2d 72

COMMONWEALTH

v.Leon DUFRESNE.

No. 11–P–1013.

Appeals Court of Massachusetts.

February 1, 2013.

OPINION TEXT STARTS HEREBy the Court (TRAINOR, AGNES & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of assault and battery upon a person age sixty years or older by means of a dangerous weapon in violation of G.L. c. 265, § 15A( a ). On appeal, he argues that: (1) there was insufficient evidence of the age of the complainant, (2) he was entitled to an instruction on the lesser included offense of assault and battery, (3) a bloody shirt should not have been admitted in evidence, and (4) misstatements in the closing argument warrant a new trial. Because we agree that the Commonwealth failed to prove the age of the complaining witness, we vacate the conviction for assault and battery upon a person age sixty years or older by means of a dangerous weapon, and remand for resentencing. In all other respects, the conviction is affirmed.

Complainant's age. At trial, the complaining witness testified that he was “[s]ixty going on 61.” No evidence was submitted as to his age at the time of the incident some four months earlier. “When age is an element of the offense charged, the Commonwealth is bound to prove that fact.” Commonwealth v. Pittman, 25 Mass.App.Ct. 25, 27 (1987). Here, the evidence of age at trial was not sufficient to prove age at the time of the offense. The Commonwealth suggests it is “reasonable to conclude” that the complainant was closer to sixty-one than to sixty at the time of trial, and that the four-month lag was therefore immaterial. A “ ‘reasonable assumption’ is not the equivalent of a permissible inference” for purposes of proof of the essential elements of a criminal offense. Commonwealth v. Wright, 60 Mass.App.Ct. 108, 111 (2003), citing Commonwealth v. Garcia, 48 Mass.App.Ct. 201, 204 (1999). The conviction of assault and battery upon a person age sixty years or older by means of a dangerous weapon must be vacated. See Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979). Because the jury's finding supports a conviction of the lesser included offense of assault and battery by means of a dangerous weapon, the defendant may be resentenced on this offense. See generally Commonwealth v. Lee, 460 Mass. 64, 71 (2011); Commonwealth v. French, 462 Mass. 41, 48–51 (2012).

Instruction. The defendant argues that the failure of the judge to instruct, sua sponte, on the lesser included offense of simple assault and battery was error, and that counsel's failure to request such an instruction constituted ineffective assistance of counsel. Because no request was made by either the prosecution or the defense, we review the claim of error for a substantial risk of miscarriage of justice; we review the claim of ineffective assistance under the now familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Roderiques, 462 Mass. 415, 425–426 (2012).

The Supreme Judicial Court has “stated repeatedly that, ‘[w]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime’ “ (emphasis supplied). Commonwealth v. Woodward, 427 Mass. 659, 662–663 (1998), quoting from Commonwealth v. Gould, 413 Mass. 707, 715 (1992). See Commonwealth v. Chase, 433 Mass. 293, 299 n. 4 (2001). “The court has not, however, found error when neither the Commonwealth nor the defense requested the instruction.” Commonwealth v. Perry, 65 Mass.App.Ct. 624, 629 (2006), citing Commonwealth v. Roberts, 407 Mass. 731, 737 (1990).

Moreover, no such instruction was required, even if requested. The theory of the defense at trial was that the defendant was the victim, not the aggressor, and the complainant was injured only when the defendant tried to wrestle the knife away from him. The complainant was wounded on his pinky finger and in the back. The defendant testified that the latter injury occurred while they were wrestling on the ground. The complainant testified it was intentionally inflicted. Thus, the fact of injury with a weapon was undisputed. The only question for the jury was which of the two men inflicted the wound and under what circumstances.¹ “Even when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the proof on the ‘elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.’ “ Commonwealth v. Egerton, 396 Mass. 499, 504 (1986), quoting from United States v. Brischetto, 538 F.2d 208, 209 (8th Cir.1976). See Commonwealth v. Souza, 428 Mass 478, 494 (1998). Cf. Commonwealth v. Pamplona, 58 Mass.App.Ct. 239, 244 (2003) (failure to instruct sua sponte on lesser included of assault and battery was not error where defendant claimed to have been the victim of excessive force). No such proof exists...