On the evening of March 29, 2006, the defendant, a special agent with the office of export enforcement of the United States Department of Commerce, was driving on Congress Street in Boston on his way home from work. Viewed in the light most favorable to the prosecution, the evidence at trial showed that, after the defendant took a right turn onto Dorchester Avenue, the victim rode up to the defendant’s passenger side window on his motorcycle to complain that the defendant had nearly hit his friend, who was also driving a motorcycle. The defendant swore at the victim and claimed that the victim’s friend had cut him off.
The verbal altercation between the defendant and the victim continued over several blocks. The two men turned left onto Summer Street and drove on, at times side by side, with the victim’s motorcycle in the left lane and the defendant’s vehicle in the right lane. At one point the defendant’s vehicle swerved so close to the victim’s motorcycle that the victim warned the defendant not to come any closer. The defendant responded by pointing a gun at the victim, and the victim taunted, “What are you going to do, shoot me?” Soon after, the defendant swerved his vehicle again, this time striking the victim’s motorcycle and sending the victim flying through the air, causing him serious bodily injury.
The jury were instructed on each of the three indictments, charging the defendant with assault and battery by means of a dangerous weapon (an automobile) and causing serious bodily injury, in violation of G. L. c. 265, § 15A
2
; assault by means of a dangerous weapon (a handgun), in violation of G. L. c. 265, § 15B
(by
and leaving the scene of an accident causing personal injury, in violation of G. L. c. 90, § 24 (2)
(a 1/i)
(1). After two days of deliberation, the jury informed the judge that they were “hopelessly deadlocked” on the first indictment but had reached verdicts on the others. The jury returned their verdicts, finding the defendant not guilty on the second indictment and guilty on the third, and the judge then provided them with standard instructions to help them resolve their deadlock. See
Commonwealth
v.
Rodriquez,
*528 After further deliberations, the jury asked the judge if they could consider the charge of assault by means of a dangerous weapon (an automobile). Over the defendant’s objection, the judge instructed the jury that they could consider that offense because it was a lesser included charge within the indictment. The jury then found the defendant guilty of assault by means of a dangerous weapon.* * 3
The Appeals Court affirmed the judgment of conviction of leaving the scene of an accident causing personal injury, but reversed the judgment of conviction of assault by means of a dangerous weapon and set aside the verdict.
Commonwealth
v.
Porro,
We granted the defendant’s application for further appellate review but limited our review to the issue whether the defendant can be retried for assault by means of a dangerous weapon. We conclude that the defendant may be retried for assault by means of a dangerous weapon as to the final swerve, but only under a threatened battery theory, not under an attempted battery theory. 4
Discussion. To determine how our jurisprudence regarding *529 lesser included offenses applies to the crimes of assault and assault and battery, we need first to examine the various alternative theories by which these crimes may be proved.
1.
Assault versus assault and battery.
The punishments for the crimes of assault and assault and battery, by means of a dangerous weapon (or without), are established by statute, but the elements necessary to convict a person of these crimes are determined by the common law. See
Commonwealth
v.
Gorassi,
Under the common law, there are two theories of assault and battery: intentional battery and reckless battery.
Commonwealth
v.
Burno,
At trial in this case, the prosecution alleged that the defendant intentionally struck the victim’s motorcycle with his vehicle, and the jury were instructed on the intentional form of assault and battery. Although there was evidence at trial sufficient to support a conviction on a reckless battery theory, the prosecution did not ask that the jury be instructed on this theory, and no instruction was given.
There are also two theories of assault under the common law: attempted battery and threatened battery. See
Commonwealth
v.
Richards,
A conviction of assault under a theory of threatened battery requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an
*531
imminent battery, and that the victim perceived the threat. See
Commonwealth
v.
Chambers,
An assault under a theory of attempted battery, therefore, has elements different from an assault under a theory of threatened battery. A defendant must intend a battery to be guilty under the attempted battery theory, but a defendant need not intend to strike the victim to be guilty under the threatened battery theory; it is sufficient that a defendant engages in menacing conduct that would place a reasonable person in fear of being struck, that the defendant intends by this conduct to place the victim in fear of an imminent battery, and that the victim recognizes the conduct to be threatening an imminent battery.
2.
Lesser included offenses.
Because the judge in this case allowed the jury to consider both the attempted battery and the threatened battery theory of assault as lesser included offenses of intentional assault and battery, we must determine whether these instructions complied with our jurisprudence of lesser included offenses. Under our long-standing rule derived from
Morey
v.
Commonwealth,
The determination that an offense is a lesser included offense has two significant consequences. First, double jeopardy prohibits a defendant from being convicted and, therefore, sentenced, for both the greater and lesser offense as a result of the same act. See
Commonwealth
v.
Vick,
Second, where one offense is a lesser included offense, a single indictment for the greater offense allows a jury to be instructed on and to consider any lesser included offenses for which the evidence may support a conviction. See
Commonwealth
v.
Walker,
Although we have repeatedly reaffirmed the elements-based approach to lesser included offenses, see, e.g.,
Commonwealth
v.
Pimental,
In
Commonwealth
v.
Walker, supra
at 301-302, a defendant charged with the rape of two six year old children was convicted of indecent assault and battery on a child under the age of fourteen. We affirmed the convictions, concluding that indecent assault and battery on a child under fourteen years of age is a lesser included offense of forcible rape of a child under the age of sixteen, even though the element regarding the victim’s age
*533
differs between the two offenses and the indictments did not allege that the victims were under fourteen.
6
*8
Id.
at 305-306. See
Commonwealth
v.
King,
In Costarelli v. Commonwealth, supra at 683-684, we concluded that unauthorized use of a motor vehicle was a lesser included offense of larceny of a motor vehicle, even though the lesser offense included an element, use on a public way, that was not required for conviction of the greater offense. We noted that, in practice, this element would not often be contested, and that “the characterization of use without authority as a lesser included offense of larceny is in accord with the realities of the offenses and the circumstances within which they occur.” Id. at 684. See Commonwealth v. D’Amour, supra at 748-749 (conspiracy is lesser included offense of accessory before fact to murder where accessory charge is based on theory that defendant hired killer).
This case requires us to determine whether each theory of assault is a lesser included offense of assault and battery. The attempted battery theory of assault is clearly a lesser included offense of intentional assault and battery; the elements are the same except that intentional assault and battery contains the additional element that the battery be completed by an actual touching of the victim. The threatened battery theory of assault, however, contains elements not found in either theory of assault and battery: the intent to place the victim in fear of an imminent battery,
Commonwealth
v.
Musgrave,
While it does not fit neatly into our elements-based definition of a lesser included offense, we conclude that the threatened battery theory of assault is a lesser included offense of intentional assault and battery. The elements in threatened battery are generally incidental to an intentional assault and battery: the defendant will usually intend to put the victim in fear and the victim will usually recognize the threat posed by the imminent battery.
7
Because attempted battery and threatened battery “are closely related,”
Commonwealth
v.
Santos,
We have long recognized the
Morey
rule as a doctrine that respects the Legislature’s role as “the primary body that creates, and defines, crimes.”
Commonwealth
v.
Jones,
The defendant cannot fairly contend that he did not receive fair notice that an assault and battery charge includes a charge of assault under a theory of threatened battery. Our common law has long recognized two theories of assault, see
Commonwealth
v.
White,
3.
Lesser included offense instruction.
Having concluded that both theories of assault are lesser included offenses of intentional
*536
assault and battery, we now turn to the question whether, based on the evidence at trial, the judge erred in allowing the jury to consider both theories of assault. Our case law on lesser included offense instructions has consistently inquired “whether the evidence at trial presents ‘a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.’ ”
Commonwealth
v.
Donlan,
In a typical case, the issue is posed in the context of a defendant who was convicted of the greater offense and claims that the judge erred in failing to give a requested lesser included offense instruction or that counsel was ineffective in failing to ask for such an instruction. See, e.g.,
id.; Commonwealth
v.
Staines,
Less typically, the issue is posed where a defendant is convicted of the lesser included offense and claims that the judge erred in
*537
allowing the jury to consider that offense. See
Commonwealth
v.
Thayer,
This case, like Commonwealth v. Thayer, supra, requires us *538 to decide whether it was error for the judge to give a lesser included instruction, specifically, the instruction on the two forms of assault. With attempted battery assault, the only element that distinguishes it from intentional assault and battery is the actual touching of the victim by the defendant. On review of the record, we agree with the defendant that there was no reasonable hypothetical basis for the jury to believe that the defendant had attempted, but failed, to strike the victim or his motorcycle with his vehicle. The fact of the collision was not in dispute, and the defendant even stipulated that the victim suffered serious bodily injury. 11 Because the jury could not reasonably have found the defendant not guilty of aggravated assault and battery by means of a dangerous weapon but guilty of assault by means of a dangerous weapon under an attempted battery theory, the judge erred in giving the lesser included instruction on that theory. See Commonwealth v. Nardone, supra. 12
The jury, however, reasonably could have found the defendant guilty of threatened battery assault but not guilty of the intentional assault and battery charged. The evidence permitted the jury reasonably to conclude that they had a reasonable doubt whether the defendant intended to strike the victim or his motorcycle, but no doubt that he at least intended to scare the victim by swerving close to him. While the defendant, who testified in his own defense, stated that he did not know the victim was to his left when he swerved, and no attorney in closing argument claimed that the defendant meant to scare the victim, a jury *539 reasonably could have reached this conclusion from the circumstantial evidence admitted at trial. 13
Because a lesser included instruction as to the offense of assault by means of a dangerous weapon based on a theory of threatened battery, but not attempted battery, was warranted by the evidence at trial, the defendant may be retried on this theory alone, limited to the defendant’s final swerve, which resulted in contact with the victim.
Conclusion. The defendant’s conviction of assault by means of a dangerous weapon is reversed and the verdict is set aside. The case is remanded to the Superior Court. For the reasons discussed above, we conclude that the defendant may be retried for assault by means of a dangerous weapon on a threatened battery theory of assault only.
So ordered.
Notes
This indictment was characterized as “aggravated” assault and battery by means of a dangerous weapon.
The defendant was sentenced on each conviction to two years in a house of correction, six months to be served and the balance suspended for two years with probation, and fined $500, with the sentences to be served concurrently.
The defendant suggests that our review is limited to the question whether he can be retried for assault by means of a dangerous weapon under an attempted battery theory, because the Commonwealth did not seek further *529 appellate review of the Appeals Court’s decision limiting retrial to the attempted battery theory of assault. We disagree. We granted review on the “second issue raised” in the defendant’s application for further appellate review, “namely, whether he can be retried for assault.” Because the question whether the defendant may be retried on the threatened battery theory of assault is within the scope of our further appellate review and has been briefed and argued by the parties, the defendant is not unfairly prejudiced by our consideration of that theory.
As with any crime of attempt, the prosecution must prove that the defendant either had committed the last act necessary to complete the crime, such as where a combatant swings and misses, or had committed overt acts that brought him very near — in time and ability —■ to the actual commission of the completed crime. See
Commonwealth
v.
Bell,
We recommended, however, that the Commonwealth “perfect” such indictments in the future by indicating whether the victim is under the age of fourteen. See
Commonwealth
v.
Walker,
We recognize that, where the victim was unconscious or did not see the attack, the evidence would not support a conviction of the lesser included offense of assault under the threatened battery theory, and the jury should not be allowed to consider this theory.
Because the jury in this case were not instructed as to reckless assault and battery, we do not decide whether either of the two theories of assault is a lesser included offense of reckless assault and battery.
For all practical purposes, this would increase the maximum sentence for assault and battery under G. L. c. 265, § 13A, from two and one-half years in a house of correction to five years in a house of correction, because the Commonwealth could nearly always charge a battery as both an assault and battery, and an assault, and ask for an on and after sentence on the assault conviction. Compare G. L. c. 265, § 13A (a), with G. L. c. 265, § 13A (b) (iii).
The defendant relies on Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 778 (1999), in which the Appeals Court reversed a conviction of indecent assault and battery on the ground that the evidence had not supported putting that charge before the jury as a lesser included offense of anal rape. That court found that because the witness “did not waver in her account” that there had been anal penetration, “the jury could find rape had occurred but the evidence did not permit a finding that something less had occurred.” Id. at 779. Our holding today makes clear that a lesser included instruction is not error where, for example, a jury reasonably could be convinced by the victim’s testimony that the defendant sexually assaulted her but not be convinced beyond a reasonable doubt that penetration occurred, even where the victim was not cross-examined as to penetration and the defense attorney did not mention it in closing argument.
This stipulation provided the prosecution’s proof that the alleged assault and battery by means of a dangerous weapon caused “serious bodily injury” and therefore qualified for enhanced punishment under G. L. c. 265, § 15A (c) (i).
The Commonwealth suggests that the jury may have mistakenly believed that the offense of aggravated assault and battery by means of a dangerous weapon required proof beyond a reasonable doubt that the dangerous weapon (the defendant’s vehicle) actually touched the victim, and was deadlocked as to whether the prosecution had proved such a touching. While we can never know the jury’s understanding of the law, we note that the judge instructed the jury that, to prove this offense, the Commonwealth must prove beyond a reasonable doubt “that the defendant touched the person of the alleged victim” (emphasis added). Even if the jury misunderstood the judge’s instructions to require a direct touching of the victim’s person, rather than an indirect touching by striking the victim’s motorcycle, such a misunderstanding is not a proper basis for a lesser included instruction.
The defendant argues that, if the jury concluded that he intended to scare but not strike the victim, the proper course was for the judge to give an instruction as to reckless battery. N\4iile such an instruction would have been appropriate, a jury might still have concluded that the defendant intended to scare the victim but was not reckless in doing so. Such a conclusion was not the most likely interpretation of the evidence, but it would not have been unreasonable.