DocketNumber: 18-P-673
Citation Numbers: 122 N.E.3d 1098, 94 Mass. App. Ct. 1116
Filed Date: 1/7/2019
Status: Precedential
Modified Date: 7/24/2022
The defendant, Eugene J. Parrish, appeals his conviction, by a District Court jury, of assault by means of a dangerous weapon. G. L. c. 265, § 15B (b ). The defendant contends that the Commonwealth failed to introduce evidence sufficient to establish that he used a dangerous weapon to commit an assault. We affirm.
Discussion. The Commonwealth may prove assault using either an attempted battery or threatened battery theory of the offense. See Commonwealth v. Porro,
Under the threatened battery theory, the Commonwealth must 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 imminent battery, and that the victim perceived the threat." Porro, 580 Mass. at 530-531. The incident at issue here occurred on a bus on December 1, 2016. Based on the testimony and video surveillance of the incident, the jury could have found that the defendant recognized an acquaintance on the bus. After confronting her, he clutched his waistband. She interpreted this to mean he was reaching for a gun, and grabbed his hand to keep him from pulling out a weapon. She felt a hard metal object and saw something silver, which she stated was a gun. See Commonwealth v. Powell,
When the bus stopped, several people ran off the bus. The defendant started to get off the bus, and the victim then shoved him out the back door and ran to the front of the bus where the driver was seated. The defendant pulled out a handgun, visible in the video, and pointed the gun towards the bus. She ducked for cover in the now empty bus, believing that the defendant was about to shoot her.
With respect to attempted battery, the Commonwealth has the burden to prove that the defendant "intended to commit a battery, took some overt step towards accomplishing that intended battery, and came reasonably close to doing so." Porro,
Viewed in the light most favorable to the Commonwealth, there was sufficient evidence that the assault was accomplished by means of a dangerous weapon to support a conviction under both a threatened battery and an attempted battery theory of assault by means of a dangerous weapon.
Judgment affirmed.
"The Commonwealth may properly use the same conduct to prove an assault under both forms." Commonwealth v. Arias,
A police officer trained in firearms detection also testified that the object seen on the video was a gun.