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
23-P-393
COMMONWEALTH
vs.
ALEXANDR IVANENKO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Alexandr Ivanenko, was convicted of assault and
battery on an elderly person causing bodily injury (assault and
battery on an elder), and assault and battery.1 On appeal he
contends that the judge's instructions on intent and accident
created a substantial risk of a miscarriage of justice, the
judge's failure to poll the jurors with respect to alleged
exposure to "extraneous information" created a substantial risk
of a miscarriage of justice, and the conviction of assault and
battery should be vacated as duplicative of the conviction of
assault and battery on an elder. We vacate the judgment of
1 The defendant was charged with assault and battery by means of a dangerous weapon, but the jury found him guilty of the lesser included offense of simple assault and battery. conviction of assault and battery because it is duplicative of
the assault and battery on an elder conviction, but otherwise
affirm.
Background. On the morning of June 13, 2022, a sixty-seven
year old woman (the victim) walked into the Massachusetts Bay
Transportation Authority (MBTA) Alewife Station. As she entered
the station, a man, later identified as the defendant, walked
toward her moving "very fast." The victim had her head down and
was about to pass through one of the doors when the defendant
reached out and struck her near her neck, causing her to fall.
The victim landed on her right side and sustained injuries to
her head and elbow, as well as a broken ankle. While the victim
was on the ground, the defendant walked past her and exited the
station. Officer Christopher Mansur of the MBTA transit police
investigated the incident and obtained surveillance video
recordings that show the incident. "Video clips" from the
surveillance video recordings were admitted as exhibits at trial
and played for the jury.
The defendant was tried on a three-count complaint charging
assault and battery on an elder, assault and battery by means of
a dangerous weapon (ABDW), and strangulation or suffocation. At
the close of the Commonwealth's case, the judge allowed the
defendant's motion for a required finding of not guilty of the
strangulation count. During the jury charge, the judge provided
2 a supplemental instruction on accident for both the assault and
battery on an elder and ABDW counts. The judge also provided an
instruction on assault and battery as a lesser included offense
of ABDW.
While deliberating, the jury asked three separate times to
view the surveillance video footage. The first two times, the
jury returned to the courtroom and viewed the video footage.
The third time, the jury also asked to "possibly enlarge[e]" the
"lower left-hand corner" of one of the video clips. The judge
denied the request and instructed the jury not to expand the
video footage. The judge then allowed the jury to watch the
video footage in the deliberation room, without objection from
the defendant.
The jury subsequently returned a guilty verdict on the
assault and battery on an elder count and of the lesser included
offense of simple assault and battery on the ABDW count.
Judgments of conviction entered, and the defendant now appeals
therefrom.
Discussion. 1. Jury instructions. The defendant argues
that the judge's accident instruction, read in conjunction with
the instruction on assault and battery on an elder, "suggested
that to acquit [the defendant], the jury would have to find that
his contact with [the victim] was the accidental result of an
accidental intermediate act." The claim is unpersuasive.
3 Where, as here, the defendant did not object to the jury
instructions at trial, "we review his claim to determine first
whether there was error, and if so, we then inquire whether the
error created a substantial risk of a miscarriage of justice."
Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "Trial
judges have considerable discretion in framing jury
instructions" (quotation and citation omitted). Commonwealth v.
Kelly, 470 Mass. 682, 688 (2015). On review, an appellate court
"evaluate[s] jury instructions as a whole and interpret[s] them
as would a reasonable juror"; the court "do[es] not require that
judges use particular words, but only that they convey the
relevant legal concepts properly." Id. at 697.
We discern no error in the judge's instructions. First,
the instructions followed Instructions 6.280 and 9.100 of the
Criminal Model Jury Instructions for Use in the District Court
(2022), for assault and battery on an elder and accident.
Moreover, the instructions on the elements of the charges
conveyed that to convict the defendant, "the jury must find
beyond a reasonable doubt that the defendant touched the victim
without the victim's consent and without justification and that
he did so intentionally." Commonwealth v. Garofalo, 46 Mass.
App. Ct. 191, 193 (1999). The supplemental instruction on
accident, which the defendant requested, informed the jury that
an accident is "an unintentional event occurring through
4 inadvertence, mistake, or negligence." Commonwealth v. Moore,
92 Mass. App. Ct. 40, 48 (2017), quoting Commonwealth v.
Figueroa, 56 Mass. App. Ct. 641, 650 (2002). The judge's
instructions told the jury that they must find that the
defendant intended to touch the victim, and that the intended
touching was not the result of mistake or inadvertence.
Accordingly, there was no error. See Commonwealth v. Chapman,
433 Mass. 481, 490 (2001) (jury instructions "must be construed
as a whole" and not as isolated statements [citation omitted]).
Even assuming, arguendo, that some portion of the
instructions was erroneous, it did not create a substantial risk
of a miscarriage of justice. See Commonwealth v. Mitchell, 67
Mass. App. Ct. 556, 565 (2006), quoting Garofalo, 46 Mass. App.
Ct. at 192 n.3 (in analyzing whether instruction on assault and
battery created substantial risk of miscarriage of justice,
"[t]he critical question . . . is whether, viewing the charge in
its entirety, there was a reasonable likelihood that the jury
could have understood the judge's instructions to allow the
defendant's conviction on proof other than that he had engaged
in an intentional and unjustified touching of the person of the
victim").
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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
23-P-393
COMMONWEALTH
vs.
ALEXANDR IVANENKO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Alexandr Ivanenko, was convicted of assault and
battery on an elderly person causing bodily injury (assault and
battery on an elder), and assault and battery.1 On appeal he
contends that the judge's instructions on intent and accident
created a substantial risk of a miscarriage of justice, the
judge's failure to poll the jurors with respect to alleged
exposure to "extraneous information" created a substantial risk
of a miscarriage of justice, and the conviction of assault and
battery should be vacated as duplicative of the conviction of
assault and battery on an elder. We vacate the judgment of
1 The defendant was charged with assault and battery by means of a dangerous weapon, but the jury found him guilty of the lesser included offense of simple assault and battery. conviction of assault and battery because it is duplicative of
the assault and battery on an elder conviction, but otherwise
affirm.
Background. On the morning of June 13, 2022, a sixty-seven
year old woman (the victim) walked into the Massachusetts Bay
Transportation Authority (MBTA) Alewife Station. As she entered
the station, a man, later identified as the defendant, walked
toward her moving "very fast." The victim had her head down and
was about to pass through one of the doors when the defendant
reached out and struck her near her neck, causing her to fall.
The victim landed on her right side and sustained injuries to
her head and elbow, as well as a broken ankle. While the victim
was on the ground, the defendant walked past her and exited the
station. Officer Christopher Mansur of the MBTA transit police
investigated the incident and obtained surveillance video
recordings that show the incident. "Video clips" from the
surveillance video recordings were admitted as exhibits at trial
and played for the jury.
The defendant was tried on a three-count complaint charging
assault and battery on an elder, assault and battery by means of
a dangerous weapon (ABDW), and strangulation or suffocation. At
the close of the Commonwealth's case, the judge allowed the
defendant's motion for a required finding of not guilty of the
strangulation count. During the jury charge, the judge provided
2 a supplemental instruction on accident for both the assault and
battery on an elder and ABDW counts. The judge also provided an
instruction on assault and battery as a lesser included offense
of ABDW.
While deliberating, the jury asked three separate times to
view the surveillance video footage. The first two times, the
jury returned to the courtroom and viewed the video footage.
The third time, the jury also asked to "possibly enlarge[e]" the
"lower left-hand corner" of one of the video clips. The judge
denied the request and instructed the jury not to expand the
video footage. The judge then allowed the jury to watch the
video footage in the deliberation room, without objection from
the defendant.
The jury subsequently returned a guilty verdict on the
assault and battery on an elder count and of the lesser included
offense of simple assault and battery on the ABDW count.
Judgments of conviction entered, and the defendant now appeals
therefrom.
Discussion. 1. Jury instructions. The defendant argues
that the judge's accident instruction, read in conjunction with
the instruction on assault and battery on an elder, "suggested
that to acquit [the defendant], the jury would have to find that
his contact with [the victim] was the accidental result of an
accidental intermediate act." The claim is unpersuasive.
3 Where, as here, the defendant did not object to the jury
instructions at trial, "we review his claim to determine first
whether there was error, and if so, we then inquire whether the
error created a substantial risk of a miscarriage of justice."
Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "Trial
judges have considerable discretion in framing jury
instructions" (quotation and citation omitted). Commonwealth v.
Kelly, 470 Mass. 682, 688 (2015). On review, an appellate court
"evaluate[s] jury instructions as a whole and interpret[s] them
as would a reasonable juror"; the court "do[es] not require that
judges use particular words, but only that they convey the
relevant legal concepts properly." Id. at 697.
We discern no error in the judge's instructions. First,
the instructions followed Instructions 6.280 and 9.100 of the
Criminal Model Jury Instructions for Use in the District Court
(2022), for assault and battery on an elder and accident.
Moreover, the instructions on the elements of the charges
conveyed that to convict the defendant, "the jury must find
beyond a reasonable doubt that the defendant touched the victim
without the victim's consent and without justification and that
he did so intentionally." Commonwealth v. Garofalo, 46 Mass.
App. Ct. 191, 193 (1999). The supplemental instruction on
accident, which the defendant requested, informed the jury that
an accident is "an unintentional event occurring through
4 inadvertence, mistake, or negligence." Commonwealth v. Moore,
92 Mass. App. Ct. 40, 48 (2017), quoting Commonwealth v.
Figueroa, 56 Mass. App. Ct. 641, 650 (2002). The judge's
instructions told the jury that they must find that the
defendant intended to touch the victim, and that the intended
touching was not the result of mistake or inadvertence.
Accordingly, there was no error. See Commonwealth v. Chapman,
433 Mass. 481, 490 (2001) (jury instructions "must be construed
as a whole" and not as isolated statements [citation omitted]).
Even assuming, arguendo, that some portion of the
instructions was erroneous, it did not create a substantial risk
of a miscarriage of justice. See Commonwealth v. Mitchell, 67
Mass. App. Ct. 556, 565 (2006), quoting Garofalo, 46 Mass. App.
Ct. at 192 n.3 (in analyzing whether instruction on assault and
battery created substantial risk of miscarriage of justice,
"[t]he critical question . . . is whether, viewing the charge in
its entirety, there was a reasonable likelihood that the jury
could have understood the judge's instructions to allow the
defendant's conviction on proof other than that he had engaged
in an intentional and unjustified touching of the person of the
victim"). Here, the judge's repeated instructions that the
Commonwealth must prove that the defendant intended to touch the
victim and that intent to touch meant that he "consciously" and
"deliberately intended the touching to occur," and that the
5 touching "was not merely accidental or negligent," negated any
risk of jury confusion. Viewed in their entirety, the
instructions on intent and accident were clear and did not
create a substantial risk of a miscarriage of justice.
Furthermore, the evidence that the defendant acted with intent
to strike the victim was overwhelming in view of the victim and
eyewitness testimony combined with the corroborating
surveillance video footage. There was no "factual scenario from
which [the jury] likely would have concluded that the
defendant's contact with the victim was the accidental result of
an intentional and lawful intermediate act." Mitchell, supra.
2. Jury's potential exposure to extraneous matter. The
defendant also contends that the judge abused his discretion by
failing to ask the jurors whether they had followed his
instruction not to enlarge the surveillance video footage after
they returned from deliberations. The defendant claims that
because the judge did not make this inquiry, an extraneous
matter was therefore introduced into jury deliberations. We
disagree.
We review a judge's determination regarding the existence
of extraneous influence for abuse of discretion. See
Commonwealth v. Watt, 484 Mass. 742, 758 (2020); Commonwealth v.
Bright, 463 Mass. 421, 443 (2012). A defendant is "entitled to
a decision on the evidence at trial" and, therefore, a jury's
6 verdict may not be based on extraneous information.
Commonwealth v. Fidler, 377 Mass. 192, 197 (1979). The
defendant must demonstrate "by a preponderance of the evidence"
that the jury were exposed to an extraneous matter.
Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). "An
extraneous matter is one that involves information not part of
the evidence at trial 'and raises a serious question of possible
prejudice.'" Commonwealth v. Guisti, 434 Mass. 245, 251 (2001),
quoting Commonwealth v. Kater, 432 Mass. 404, 414 (2000).
There is no indication in the record that the jury were
exposed to extraneous information. Even if we were to grant the
defendant the very generous assumption that enlarging a video
clip that had been admitted in evidence somehow amounts to
extraneous information, "the fundamental difficulty with the
defendant's contention is that it requires this court to
conclude that the jury did not follow the judge's very specific
instruction to disregard [the evidence]. Such a conclusion
would be at odds with both our case law and our basic
assumptions about how jurors perform their function. Jurors are
presumed to follow the law as instructed." Commonwealth v.
Silva, 93 Mass. App. Ct. 609, 615 (2018). Therefore, we discern
no abuse of discretion.
3. Duplicative convictions. The defendant argues that the
conviction of assault and battery is duplicative of the
7 conviction of assault and battery on an elder. The Commonwealth
concedes that the convictions are duplicative and that the
conviction of the lesser offense of assault and battery must be
vacated. Having conducted our own review of the record, see
Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379 (1987), we
agree.
Conclusion. The judgment of conviction of assault and
battery is vacated, the finding is set aside, and that count of
the complaint is to be dismissed. On the remaining conviction
of assault and battery on an elder, the judgment is affirmed.
So ordered.
By the Court (Milkey, Massing & Neyman, JJ.2),
Assistant Clerk
Entered: March 26, 2024.
2 The panelists are listed in order of seniority. 8