Commonwealth v. Stephen H. Smith.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-942
COMMONWEALTH
vs.
STEPHEN H. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
assault and battery by means of a dangerous weapon in violation
of G. L. c. 265, § 15A (b), and assault and battery on a
household member in violation of G. L. c. 265, § 13M (a). On
appeal, he claims that there was insufficient evidence to
support the assault and battery by means of a dangerous weapon
conviction, and that the trial judge improperly struck testimony
relevant to his claim that the victim was the first aggressor.
We affirm.
Background. We summarize the evidence presented at trial
in the light most favorable to the Commonwealth, reserving
certain details for the discussion of specific issues. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The
victim testified that during the night of November 7, 2019, into
the morning of November 8, 2019, she and the defendant, who were
in a dating relationship, were in the victim's apartment, where
the defendant stayed often. The two were in the kitchen when
the defendant told the victim that he had taken twenty Klonopin
pills in a suicide attempt, and an argument followed. After the
victim failed to convince the defendant to go to the hospital,
she reached for her cell phone, at which point the defendant
grabbed a knife and pointed it at her. As the victim left the
kitchen to go to her room, she saw that the defendant was
cutting his arm with the knife. She once again tried to pick up
her cell phone from the kitchen table, but was unable to reach
it, as the defendant began to chase her through the apartment
with the knife. During the ensuing encounter, the defendant
straddled the victim while she was on a couch, held her down,
and waived the knife in her face. The defendant ended up
striking the victim with the knife, resulting in a serious
laceration to her hand requiring twenty-two stitches. The
victim was able to escape to a neighbor's apartment. The police
were called.
Discussion. 1. Sufficiency of the evidence. The
defendant contends that the evidence only showed that he waved a
knife in the face of the victim, which resulted in her getting
injured when she attempted to block it, not that he
intentionally struck her. Thus, he argues that while there was
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sufficient evidence to support a conviction of a reckless
assault and battery by means of a dangerous weapon, there was
insufficient evidence to support a conviction of an intentional
assault and battery by means of a dangerous weapon. When
reviewing a sufficiency of the evidence claim, we determine
whether, "after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt"
(citation omitted). Latimore, 378 Mass. at 677.
Assault and battery by means of a dangerous weapon can be
proven under either a theory of intentional or reckless battery.
See Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 807 (2009).1
When the factfinder is instructed on both theories, a conviction
may be upheld on sufficient proof of either theory. See, e.g.,
id. at 807-808. Because in jury-waived cases trial judges are
presumed to have instructed themselves properly on the law, see
Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), we presume
that the trial judge here properly instructed herself as to both
1 "Intentional assault and battery by means of a dangerous weapon
requires an intentional, unjustified touching, however slight,
by means of [a] dangerous weapon" (quotation and citation
omitted). Commonwealth v. Ashford, 486 Mass. 450, 460 (2020).
In contrast, a recklessness theory requires "the intentional
commission of a wanton or reckless act (something more than
gross negligence) causing physical or bodily injury to another
by means of a dangerous weapon" (footnote, quotation, and
citation omitted). Id. at 460-461.
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theories. Given that there was evidence that the defendant was
straddling the victim while waving a knife over her face, and
that the defendant concedes that there was sufficient evidence
to uphold the conviction on a theory of recklessness, we
conclude there was no error.2
2. Adjutant evidence. "[W]here a claim of self-defense
has been asserted and the identity of the first aggressor is in
dispute . . . trial judges have the discretion to admit in
evidence specific incidents of violence that the victim is
reasonably alleged to have initiated." Commonwealth v.
Adjutant, 443 Mass. 649, 650 (2005). During the trial,
testimony was elicited regarding prior violent conduct of both
the defendant and the victim. The trial judge allowed the
testimony on the condition that the defendant was able to raise
a claim of self-defense.3 After the defendant concluded his
2 We also conclude that, viewing the evidence in the light most
favorable to the Commonwealth, there was sufficient evidence
under a theory of an intentional assault and battery by means of
a dangerous weapon, as the trial judge could have inferred that
the defendant intended to strike the victim with the knife after
chasing her around the apartment with it, holding her down while
on top of her, and then waving the knife over her face.
3 For a defendant to be entitled to a self-defense instruction,
there must be evidence warranting at least a reasonable doubt
that he "(1) had reasonable ground to believe and actually did
believe that he was in imminent danger of death or serious
bodily harm, from which he could save himself only by using
deadly force, (2) had availed himself of all proper means to
avoid physical combat before resorting to the use of deadly
force, and (3) used no more force than was reasonably necessary
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testimony, the Commonwealth moved to strike the victim's prior
Adjutant testimony and to disallow any such further testimony.
The trial judge ruled that "it's not real clear from [the
defendant's] testimony, particularly with the charge of assault
and battery dangerous weapon, how he was acting in self-
defense," and allowed the Commonwealth's motion. On appeal, the
defendant argues that the evidence was sufficient to support a
claim of self-defense and, therefore, that he should have been
permitted to introduce evidence that the victim was the first
aggressor.
We discern no error in the trial judge's conclusion that
there was insufficient evidence that the defendant acted in
self-defense and, therefore, the evidence at issue was properly
excluded. Even accepting all reasonable inferences in the
defendant's favor, see Commonwealth v. Pike, 428 Mass. 393, 395
(1998), the defendant provided no evidence that he used the
knife in self-defense. The defendant testified that the victim
attacked him with the knife, that he received cuts during the
altercation, and that he pushed the victim away and ran out of
the apartment. However, he also testified that he never grabbed
the knife at all, and offered no explanation for how the victim
in all the circumstances of the case" (citation omitted).
Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007).
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received her injuries.4 His testimony did not raise a claim of
self-defense, but instead presented an entirely alternative
account of the incident -- one that did not explain how the
victim suffered a significant laceration. In sum, there was no
evidence to support a claim of self-defense. See Commonwealth
v. Bertrand, 385 Mass. 356, 362-363 (1982) (where defendant
insisted he did not inflict blows that killed victim, his
testimony raised no issue of self-defense); Commonwealth v.
Clark, 20 Mass. App. Ct. 392, 396-397 (1985) (defendant not
entitled to self-defense instruction for assault and battery by
means of a dangerous weapon charge involving knife where
4 During closing arguments, defense counsel stated he had no
theory as to how the victim received her cuts:
Judge: "So are -- so you're suggesting that [the victim]
cut herself?"
Defense counsel: "Your Honor, I don't know what happened.
I –"
Judge: "Okay."
Defense counsel: "-- really don't. And if I did, I don't
think we would be here right now."
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defendant testified he took knife from victim but only pushed
her and hit her with his hand).
Judgments affirmed.
By the Court (Vuono, Henry &
Grant, JJ.5),
Clerk
Entered: June 5, 2023.
5 The panelists are listed in order of seniority.
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