432 Mass. 244 | Mass. | 2000
After a one-day jury-waived trial in the Superior Court, the defendant was convicted on three indictments charging “assault. . . with intent to commit a felony, to wit: kidnapping.” See G. L. c. 265, §§ 26, 29. On appeal, the defendant argues that the judge applied an erroneous concept of assault. The defendant also challenges the sufficiency of the evidence presented at trial.
1. The evidence and the judge’s statements. At trial, the Commonwealth produced evidence of two incidents that occurred on June 25, 1996, one in a hotel corridor involving two girls, eight and nine years of age, and one in a public library involving one girl, three years of age. The defendant stipulated that he was present at the hotel and the library at the relevant times.
a. The hotel incident. The Commonwealth introduced the testimony of one of the girls involved. The girl testified that her family and her friend’s family were staying at the Marriott Hotel in Newton on June 25, 1996, and that around 6 p.m., she and her friend were drawing on a board in a function room. When the two girls left the room, the defendant, who had been standing near the elevator, started walking down the hallway behind them. The defendant caught up with the girls as they reached the end of a second hallway that terminated at a door leading to a cement stairwell. The defendant asked the girls if they knew where the outdoor pool was located and asked them to come with him and show him. When one of the girls said “no,” the defendant then asked the girls their names, and if they wanted to see something pretty. The girls then ran back to their rooms.
The Commonwealth also introduced the testimony of a Newton police officer, who testified that the length of the hallways the girls had walked while the defendant walked behind them totalled 326 feet.
b. The library incident. The Commonwealth introduced the testimony of the mother of the girl involved. The mother testified that, around 8:30 p.m. on June 25, 1996, she and her husband took their two daughters, three and two years of age, to the Weston Public Library. As the family entered the library, the father walked the girls to the children’s area and then proceeded
The Commonwealth also introduced the testimony of two librarians who were on duty the night of the incident. One of the librarians, who was assigned to the children’s area, testified that she observed the defendant initially enter that area between 7:30 and 7:45 p.m., that he appeared to be agitated, going from point to point, and that he entered the children’s area at least six times that evening. The librarian also testified that she had two conversations with the defendant. During the first conversation, the defendant told the librarian that he was meeting his girl friend there, and that he was looking for her. During the second conversation, the librarian suggested to the defendant, because he appeared very nervous, that he try to telephone his girl friend or that he read some magazines. The defendant replied that he had already tried to reach his girl friend.
c. The judge’s statements. After a brief recess at the close of the evidence, the judge orally issued rulings of law and findings of facts, which are set out in the margin.
2. Analysis. The defendant first argues that the judge erred by
a. Definition of assault. Under the common law, an assault may be accomplished in one of two ways — either by an attempted battery, or by putting another in fear of an immediately threatened battery. See, e.g., Commonwealth v. Burke, 390 Mass. 480, 482 (1983); Commonwealth v. Richards, 363 Mass. 299, 302-303 (1973); Commonwealth v. Slaney, 345 Mass. 135, 140 (1962); G. L. c. 265, § 13A (prescribing penalty for, but not defining elements of, assault). See also Commonwealth v. Burke, supra (criminal battery is harmful or offensive touching). Thus,
During the trial, while ruling on the defendant’s initial motion for required findings of not guilty, the judge correctly stated that “an assault... is defined as a communicated threat, that is, a communicated intent to use some kind of force on the person of another.” This statement reasonably conforms to the immediately threatened battery type of assault. However, in announcing his decision after the trial, the judge enunciated a different standard, stating that the definition of assault was an attempt to do harm and included “an attempt to do psychological harm.” The judge did not further define psychological harm.
As our previous discussion and case law make clear, the central aspect of an assault is an attempted application of physical force or a threat of the use of physical force, either by an attempt to do bodily harm, or by placing the victim in fear of imminent bodily harm.
b. Sufficiency of evidence at trial. In reviewing the judge’s denial of the motions for required findings of not guilty,
The hotel incident. We conclude that the Commonwealth failed to introduce any evidence that the defendant assaulted the girls, either by attempting a battery, or by placing them in fear of imminent battery. Even considering the defendant’s action of following the girls down two hallways and questioning them as a ruse, there was no evidence reasonably indicating that the defendant attempted to use force on the girls, that he threatened them with the use of force, or that he impeded their movements in any way. While the evidence indicated that the defendant
The library incident. Relative to this incident, however, there was sufficient evidence introduced that the defendant assaulted the girl with the intent to kidnap. The Commonwealth introduced evidence that the girl had her back to the wall, that the defendant was a few inches from her and was reaching toward her. From this, it may reasonably be inferred that the defendant attempted a battery. Further, from the evidence that the defendant falsely enticed the girl into the crafts room, it may reasonably be inferred that the defendant intended to kidnap the girl. Accordingly, the defendant’s motion for a required finding of not guilty relative to this indictment was properly denied.
3. Conclusion. Because the judge may have applied an incorrect definition of assault in reaching his guilty findings, all three convictions must be reversed. Further, because the Commonwealth failed to introduce sufficient evidence of assault relative to the hotel incident, judgment is to enter for the defendant on the two indictments related to that incident. Relative to the library incident, however, the Commonwealth introduced sufficient evidence of assault with the intent to kidnap, and the defendant therefore may be retried on the indictment related to that incident.
So ordered.
In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed all three convictions, remanding one indictment for retrial, and ordering judgment for the defendant on the other two indictments. Commonwealth v. Gorassi, 48 Mass. App. Ct. 1102 (1999). We granted the Commonwealth’s application for further appellate review. Because our order granting further appellate review was not limited, all of the issues decided by
The girl also testified that the defendant was “shaking his hand inside of his pocket” while he was talking to the girls.
In his defense, the defendant introduced evidence that he had a throat condition, that the condition made his throat sensitive to air conditioned environments, and that he had a habit of carrying and using a towel to protect his throat.
The judge stated:
“I take as the definition of assault, that is assault in the context of these indictments, to be an attempt to do harm, but not necessarily bodily harm. I take the definition of assault in this case to include an at*247 tempt to do psychological harm.
“And I further take it as a legal principle that the objective standard applies and that the test of whether an act is an attempt to do harm is the test of whether a reasonable person in the defendant’s position should have known that his actions would lead to harm, in this case to psychological harm.
“And specifically, I take it as a principle that a person in the defendant’s position should know that unwanted physical attention, that is to say, unwanted interpersonal contact would have deleterious effect, psychological effect on a child.
“I find beyond a reasonable doubt that the defendant intended in each instance to be with the child, or in the case of [the hotel incident] in a place secluded from anybody else’s eyes.
“In reaching that conclusion, I have in mind that in one case he brought the child into the crafts room, which was separate and apart from the place where adults were present.
“And with respect to the [hotel incident] that the defendant followed the children down two corridors.
“I find beyond a reasonable doubt that the defendant intended to overcome in each instance, the child’s will, not by force, not by threats, but by enticement.”
The defendant also argues that his motion to dismiss the indictments should have been granted because the Commonwealth failed to present sufficient evidence to the grand jury. Because we decide this case on the first two grounds, we need not reach the issue of the sufficiency of the evidence before the grand jury. See Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984) (“long-standing rule has been that a court will not review the competency or sufficiency of the evidence before a grand jury”).
See Commonwealth v. Delgado, 367 Mass. 432, 436 (1975), quoting Perkins, Criminal Law 132 (2d ed. 1969) (“informational words might take the place of a threatening movement or gesture and complete the assault”).
Although neither the prosecutor nor defense counsel did so in this case, parties may request rulings of law pursuant to Mass. R. Crim. R 26, 378 Mass. 897 (1979).
The defendant did not specifically object to the judge’s statements.
At the close of the Commonwealth’s evidence and at the close of all the evidence, the defendant moved for required findings of not guilty.
Although the evidence was not sufficient for the crime of assault with intent to commit a felony, other charges, more suitable on these facts, were available.