Commonwealth v. Inoa ( 2020 )

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19-P-440 Appeals Court
COMMONWEALTH vs. NOEL INOA.
No. 19-P-440.
Norfolk. January 7, 2020. - April 2, 2020.
Present: Wolohojian, Milkey, & Shin, JJ.
Assault and Battery by Means of a Dangerous Weapon. Words,
"Serious bodily injury."
Indictment found and returned in the Superior Court
Department on March 28, 2013.
The case was tried before Peter B. Krupp, J.
Geraldine C. Griffin for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
SHIN, J. A jury convicted the defendant of assault and
battery by means of a dangerous weapon causing serious bodily
injury. See G. L. c. 265, § 15A (c) (i). The question on
appeal is whether there was sufficient evidence of "serious
bodily injury" as defined in G. L. c. 265, § 15A (d), which sets
out three alternative ways to prove that element of the crime.
2
The defendant contends that because the judge instructed the
jury on all three alternative definitions, and the jury returned
a general verdict, the evidence must be sufficient to establish
serious bodily injury under each definition. We disagree and
conclude that the alternative definitions do not constitute
distinct theories of guilt, so we need determine only whether
the Commonwealth met its burden of proving serious bodily injury
under at least one of them. As we further conclude that the
Commonwealth met that burden, we affirm.
Background. The jury could have found the following facts,
viewing the evidence in the light most favorable to the
Commonwealth. On December 20, 2012, the defendant, then an
inmate at the Norfolk County house of correction, walked up
behind another inmate and slashed his face with a razor taped to
a spoon. The victim suffered a gash, twenty to twenty-two
centimeters (around eight inches) long and one centimeter deep,
running across the lower right side of his face and part of his
neck. Staff in the medical unit applied pressure to the wound
and gave the victim oxygen after he reported feeling
lightheaded.
The victim was then taken by ambulance to a hospital.
There, according to emergency department records, plastic
surgery was consulted on an "[u]rgent" basis "because of the
time [it] will take to repair this laceration, and to a lesser
3
extent, because it violated the fascia[1] posteriorly." A
plastic surgeon sutured the wound, and the victim was discharged
with instructions to follow up with plastic surgery in ten to
fourteen days. Color photographs of the wound before and after
suturing were admitted in evidence.
Discussion. General Laws c. 265, § 15A (d), defines
"serious bodily injury" in three ways: bodily injury resulting
in (1) "a permanent disfigurement," (2) "loss or impairment of a
bodily function, limb or organ," or (3) "a substantial risk of
death." See Commonwealth v. Scott, 464 Mass. 355, 357 (2013)
(G. L. c. 265, § 13A [c], "set[s] forth three distinct routes
for establishing serious bodily injury"); Commonwealth v. Jean-
Pierre, 65 Mass. App. Ct. 162, 164 (2005) (§§ 13A [c] and
15A [d] "set forth substantially identical definitions of
'serious bodily injury'"). The judge instructed the jury in
accordance with the statute, and, as noted, the jury returned a
general verdict. As a result, the defendant argues, we cannot
uphold his conviction unless we conclude that the evidence is
sufficient to establish serious bodily injury under each of the
statute's alternative definitions.
1 "Fascia" is "[a] sheet of fibrous tissue that envelops the
body beneath the skin; it also encloses muscles and groups of
muscles and separates their several layers or groups."
Stedman's Medical Dictionary 700 (28th ed. 2006).
4
In so arguing, the defendant relies on "the general rule in
the Commonwealth . . . that there must be a new trial if . . . a
jury, given [multiple] theories of guilt, returned a general
verdict, and the evidence supported a guilty verdict on only
[some] of those theories." Commonwealth v. Plunkett, 422 Mass.
634, 638 (1996). Cf. Griffin v. United States, 502 U.S. 46, 56-
60 (1991) (general verdict may stand so long as evidence
sufficient to support one theory of guilt because jury can be
presumed not to have convicted on factually inadequate theory).
But this rule does not apply in every situation where there is
more than one way to prove an element of the crime, as the
defendant suggests. What is critical is whether the jury were
presented with distinct "theories of guilt," Plunkett, supra,
meaning "alternative means by which to commit the crime,"
Commonwealth v. Smith, 458 Mass. 1012, 1014 (2010). Only then
must we examine the evidence separately as to each theory if the
jury returned a general verdict. See id.
A few examples help illustrate the distinction. Distinct
theories of guilt in this context include the differing theories
of murder in the first degree (deliberate premeditation, felony-
murder, or extreme atrocity or cruelty), see Plunkett, 422 Mass.
at 635; Commonwealth v. Floyd P., 415 Mass. 826, 832-833 (1993),
and the differing theories of manslaughter (voluntary or
involuntary), see Commonwealth v. Accetta, 422 Mass. 642, 646-
5
647 (1996). Another example, provided by the defendant, is
Commonwealth v. Manzelli, 68 Mass. App. Ct. 691, 695 n.8 (2007),
in which this court held that interception of an oral
communication and attempted interception of an oral
communication are differing theories of criminal liability under
G. L. c. 272, § 99. What these cases have in common is that the
alternate theories presented to the jury were "separate,
distinct, and essentially unrelated ways in which the same crime
can be committed," Commonwealth v. Santos, 440 Mass. 281, 288
(2003), requiring on appeal that the evidence as to each theory
be assessed separately.
In contrast, courts have not assessed the evidence
separately as to alternate theories that were merely related
ways of proving the same legal concept. For example, in Smith,
458 Mass. at 1013, the court held that the alternative knowledge
clauses in the armed home invasion statute -- requiring either
that the defendant "enter the dwelling place knowing that
someone is present or, if the [defendant] does not know before
entering that someone is present, that he [or she] remain within
after gaining such knowledge" -- are not distinct theories of
guilt because "[w]hat matters for purposes of the armed home
invasion statute is that a defendant has knowledge that someone
is present in the dwelling," regardless of "the timing of when
the defendant gains that knowledge." Accord Commonwealth v.
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Martinez, 85 Mass. App. Ct. 288, 290-291 (2014). In a similar
vein, the court held in Commonwealth v. Zanetti, 454 Mass. 449,
467 (2009), that principal and joint venture liability are not
distinct theories of guilt because what matters in a joint
venture case is that the defendant knowingly participated in the
crime with the required criminal intent, regardless of his or
her "precise role in the commission of the crime."2 Other
examples include the alternative forms of larceny (larceny,
embezzlement, or larceny by false pretenses), see Commonwealth
v. Mills, 436 Mass. 387, 393 (2002), the alternative prongs for
establishing malice, see Commonwealth v. Riley, 467 Mass. 799,
821-822 (2014); Commonwealth v. Avellar, 416 Mass. 409, 421-422
(1993), and constructive versus actual possession, see
Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 531-532
(2000). These "are not different theories in the way that
deliberate premeditation and felony-murder are different
theories," but "are simply [different] possible ways of defining
the same legal principle." Id. at 532.
Likewise, here, the alternative definitions in G. L.
c. 265, § 15A (d), do not establish different ways of committing
the crime of assault and battery by means of a dangerous weapon
causing serious bodily injury. The elements of the crime are
2 The defendant relies principally on cases that have been
abrogated by Zanetti.
7
"that the defendant intentionally touched the victim, however
slightly; the touching was unjustified; the touching was done
with an inherently dangerous weapon or an object used in a
dangerous fashion; and the touching caused serious bodily
injury." Commonwealth v. Vick, 454 Mass. 418, 432 (2009). What
matters for purposes of this last element is that the defendant
caused a serious enough bodily injury for the enhanced penalty
provisions of the statute to apply. The alternative definitions
are simply related ways of proving that element, much in the
same way that the third element can be satisfied through proof
that the object used was either inherently dangerous or used in
a dangerous fashion. Indeed, the instructions in this case
defined "dangerous weapon" in these alternative ways, but that
does not mean, and the defendant does not contend, that we would
have to determine whether the evidence was sufficient under both
definitions.
We therefore conclude that a reviewing court need not
examine the evidence separately as to each definition of serious
bodily injury in G. L. c. 265, § 15A (d), to uphold a conviction
against a sufficiency challenge. What is required is that there
be sufficient evidence of serious bodily injury under at least
one of the definitions. Turning to that question, and viewing
the evidence and all reasonable inferences therefrom in the
light most favorable to the Commonwealth, see Commonwealth v.
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Latimore, 378 Mass. 671, 677 (1979), we conclude that the jury
could find proof beyond a reasonable doubt that the victim
suffered bodily injury resulting in "a permanent disfigurement."3
G. L. c. 265, § 15A (d). See Commonwealth v. Heywood, 484 Mass.
43, 49-52 (2020) (affirming conviction under G. L. c. 265, § 13A
[b] [i], upon concluding that evidence was sufficient to
establish permanent disfigurement and impairment of bodily
function).
The Supreme Judicial Court has recently defined "a
permanent disfigurement" as "a significant and enduring injury
that affects the appearance or the character of a person's
bodily integrity." Heywood, 484 Mass. at 50. Evidence of
scarring or a visible change in a person's outward appearance is
one way to prove permanent disfigurement but is not necessarily
required. See id. Furthermore, "the fact that an injury can be
or was concealed or repaired does not preclude a finding of
permanent disfigurement." Id.
Here, the medical records showed that the victim suffered
an approximately twenty-centimeter long gash to his face,
necessitating an "[u]rgent" consultation with plastic surgery
because of the severity of the wound and the time needed to
repair it. The jury could see the wound for themselves from the
3 We do not decide whether the evidence was sufficient to
establish serious bodily injury under the other two definitions.
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graphic photographs that were in evidence. The photographs
taken before suturing show a gaping wound running from the
victim's chin, past his ear, and toward the back of his neck.
The photographs taken after suturing show that over thirty
stitches were required to close the wound. The jury could have
assessed the severity of the injury from the photographs without
medical expertise or explanation. Cf. Scott, 464 Mass. at 364.
In turn, the jury could have found, based on their ordinary,
common experience, that a wound this long and deep -- requiring
suturing by a plastic surgeon and follow up ten to fourteen days
later -- was "significant and enduring" and would have caused
scarring, resulting in a permanent disfigurement. Heywood, 484
Mass. at 50. See id. (jury could have found that injury
"compromised the integrity of the victim's face" and caused
permanent disfigurement, given evidence that victim sustained
fractures requiring surgery and insertion of titanium plates).
Cf. Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 541-542
(2017) (grand jury could have found probable cause that victim
suffered permanent disfigurement where he sustained lacerations
to head, which totaled twenty-one centimeters in length,
required suturing, and caused scarring).4
4 We do not preclude the possibility that a cut could be so
severe that reasonable jurors could find it to have "impair[ed]
. . . a bodily function . . . or organ." G. L. c. 265,
§ 15A (d). But we do not decide that issue here.
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Judgment affirmed.