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
25-P-689
COMMONWEALTH
vs.
JASON A. RENNIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of assault
and battery by means of a dangerous weapon (ABDW) causing
serious bodily injury. On appeal the defendant argues that the
trial judge erred by failing to give a specific unanimity
instruction requiring the jury to specify whether the defendant
was guilty of the intentional or reckless form of assault and
battery. We affirm.
Background. The jury could have found the following facts.
The defendant's conviction arose from a fight that occurred in a
parking lot outside a Worcester bar in the early morning hours
of September 12, 2021. The fight began when the defendant
grabbed the victim's girlfriend, and the victim rushed over to help. The victim hit the defendant, causing the defendant to
back off, but he returned a few seconds later and punched the
victim in the face. Somebody yelled "knife." The victim, who
was bleeding heavily from his left eye, put the defendant in a
headlock. The defendant then began making "thrusting" motions
toward the victim's abdomen, using what appeared to be a weapon.
After the two men broke apart, the defendant fled and was
eventually apprehended by police a couple hundred yards away.
The defendant had a knife in his back pocket, and the police
also recovered two similar-looking knives in the parking lot.
The victim suffered severe injuries and even after three
surgeries could not "make out any shapes" with his left eye.
The defendant testified in his own defense that the victim
"sucker punched" him and then put him in a headlock. The
defendant started panicking because he could not breathe.
Unable to escape, the defendant pulled out a knife from the set
that he normally carried with him and "swung it over [his]
shoulder." He did not know if he hit anything.
Discussion. At the charge conference, the defendant
requested that the judge instruct the jury that they could find
the defendant guilty only if they were unanimous as to the form
of assault and battery, intentional or reckless, underlying
their verdict. The judge denied the request, relying on
Commonwealth v. Mistretta, 84 Mass. App. Ct. 906 (2013), among
2 other authorities. The judge then instructed the jury on both
intentional and reckless assault and battery and gave a general
unanimity instruction.
In Mistretta, 84 Mass. App. Ct. at 907, we held that the
intentional and reckless forms of assault and battery are
"closely related subcategories of the same crime" for which
"[s]pecific unanimity is not required." We reasoned that "[i]n
the case of reckless assault and battery, actual intent to
commit the crime is not present, but its equivalent is
established by the nature of the act (the act, itself, must be
intentional, and its character wanton and reckless) and its
results (there must be actual physical injury, and not simply
unconsented-to touching)." Id. We therefore concluded that the
judge did not err in declining to give a specific unanimity
instruction because the two forms of assault and battery "are
not 'separate, distinct, and essentially unrelated ways in which
the same crime can be committed.'" Id., quoting Commonwealth v.
Santos, 440 Mass. 281, 288 (2003).
While not contesting that Mistretta is controlling, the
defendant implicitly asks us to overrule it for the reasons
stated by the United States Court of Appeals for the First
Circuit in United States v. Tavares, 843 F.3d 1 (1st Cir. 2016).
The question in Tavares was whether the Massachusetts offense of
ABDW is a crime of violence for purposes of the career offender
3 provision of the Federal sentencing guidelines. See id. at 8-9.
That question in turn depended on whether the offense of ABDW is
"elementally divisible into multiple offenses." Id. at 12. In
that context the First Circuit expressed its view that Mistretta
was wrongly decided because the two forms of assault and battery
"differ in that one requires intent while the other requires
recklessness." Id. at 16.
We decline the defendant's invitation to adopt the First
Circuit's reasoning in Tavares and overrule Mistretta. We are
of course not bound by a decision of a Federal court on a
question of State law. Indeed, although Tavares was decided
nearly a decade ago, we have since continued to follow Mistretta
in a number of unpublished decisions issued under our former
rule 1:28 and current rule 23.0 and in at least one published
decision. See Commonwealth v. Louis, 94 Mass. App. Ct. 404, 407
n.1 (2018), citing Mistretta, 84 Mass. App. Ct. at 907 ("Because
we find sufficient evidence to support the conviction of assault
and battery by means of a dangerous weapon under a recklessness
theory, we need not consider whether there was sufficient
evidence to support the conviction under a theory of intentional
assault and battery"). See also Commonwealth v. Wentworth, 482
Mass. 664, 682 (2019) (Gants, C.J., dissenting), citing
Mistretta, supra ("if that evidence were deemed sufficient to
support a jury instruction for harmful battery, the Commonwealth
4 would be entitled to jury instructions regarding both harmful
battery and offensive battery, and the jury could convict the
defendant of assault and battery if some jurors found that the
defendant was guilty of harmful battery and others thought that
the defendant was guilty of offensive battery").
The defendant has not given us sufficient reason to depart
from these cases. Contrary to his suggestion, the fact that two
forms of a crime have different mens rea requirements is not
dispositive of whether a specific unanimity instruction is
warranted. For example, in an analogous context, the Supreme
Judicial Court has held that attempted battery and threatened
battery are closely related ways of committing the same crime
such that a jury need not be unanimous as to which was the basis
for their verdict. See Commonwealth v. Porro, 458 Mass. 526,
534 (2010). This is so despite the different mens rea
requirements underlying the two theories. See id. See also,
e.g., Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009) (jury
need not be unanimous as to whether defendant is guilty as
principal or joint venturer).
The defendant also argues that the intentional and reckless
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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
25-P-689
COMMONWEALTH
vs.
JASON A. RENNIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of assault
and battery by means of a dangerous weapon (ABDW) causing
serious bodily injury. On appeal the defendant argues that the
trial judge erred by failing to give a specific unanimity
instruction requiring the jury to specify whether the defendant
was guilty of the intentional or reckless form of assault and
battery. We affirm.
Background. The jury could have found the following facts.
The defendant's conviction arose from a fight that occurred in a
parking lot outside a Worcester bar in the early morning hours
of September 12, 2021. The fight began when the defendant
grabbed the victim's girlfriend, and the victim rushed over to help. The victim hit the defendant, causing the defendant to
back off, but he returned a few seconds later and punched the
victim in the face. Somebody yelled "knife." The victim, who
was bleeding heavily from his left eye, put the defendant in a
headlock. The defendant then began making "thrusting" motions
toward the victim's abdomen, using what appeared to be a weapon.
After the two men broke apart, the defendant fled and was
eventually apprehended by police a couple hundred yards away.
The defendant had a knife in his back pocket, and the police
also recovered two similar-looking knives in the parking lot.
The victim suffered severe injuries and even after three
surgeries could not "make out any shapes" with his left eye.
The defendant testified in his own defense that the victim
"sucker punched" him and then put him in a headlock. The
defendant started panicking because he could not breathe.
Unable to escape, the defendant pulled out a knife from the set
that he normally carried with him and "swung it over [his]
shoulder." He did not know if he hit anything.
Discussion. At the charge conference, the defendant
requested that the judge instruct the jury that they could find
the defendant guilty only if they were unanimous as to the form
of assault and battery, intentional or reckless, underlying
their verdict. The judge denied the request, relying on
Commonwealth v. Mistretta, 84 Mass. App. Ct. 906 (2013), among
2 other authorities. The judge then instructed the jury on both
intentional and reckless assault and battery and gave a general
unanimity instruction.
In Mistretta, 84 Mass. App. Ct. at 907, we held that the
intentional and reckless forms of assault and battery are
"closely related subcategories of the same crime" for which
"[s]pecific unanimity is not required." We reasoned that "[i]n
the case of reckless assault and battery, actual intent to
commit the crime is not present, but its equivalent is
established by the nature of the act (the act, itself, must be
intentional, and its character wanton and reckless) and its
results (there must be actual physical injury, and not simply
unconsented-to touching)." Id. We therefore concluded that the
judge did not err in declining to give a specific unanimity
instruction because the two forms of assault and battery "are
not 'separate, distinct, and essentially unrelated ways in which
the same crime can be committed.'" Id., quoting Commonwealth v.
Santos, 440 Mass. 281, 288 (2003).
While not contesting that Mistretta is controlling, the
defendant implicitly asks us to overrule it for the reasons
stated by the United States Court of Appeals for the First
Circuit in United States v. Tavares, 843 F.3d 1 (1st Cir. 2016).
The question in Tavares was whether the Massachusetts offense of
ABDW is a crime of violence for purposes of the career offender
3 provision of the Federal sentencing guidelines. See id. at 8-9.
That question in turn depended on whether the offense of ABDW is
"elementally divisible into multiple offenses." Id. at 12. In
that context the First Circuit expressed its view that Mistretta
was wrongly decided because the two forms of assault and battery
"differ in that one requires intent while the other requires
recklessness." Id. at 16.
We decline the defendant's invitation to adopt the First
Circuit's reasoning in Tavares and overrule Mistretta. We are
of course not bound by a decision of a Federal court on a
question of State law. Indeed, although Tavares was decided
nearly a decade ago, we have since continued to follow Mistretta
in a number of unpublished decisions issued under our former
rule 1:28 and current rule 23.0 and in at least one published
decision. See Commonwealth v. Louis, 94 Mass. App. Ct. 404, 407
n.1 (2018), citing Mistretta, 84 Mass. App. Ct. at 907 ("Because
we find sufficient evidence to support the conviction of assault
and battery by means of a dangerous weapon under a recklessness
theory, we need not consider whether there was sufficient
evidence to support the conviction under a theory of intentional
assault and battery"). See also Commonwealth v. Wentworth, 482
Mass. 664, 682 (2019) (Gants, C.J., dissenting), citing
Mistretta, supra ("if that evidence were deemed sufficient to
support a jury instruction for harmful battery, the Commonwealth
4 would be entitled to jury instructions regarding both harmful
battery and offensive battery, and the jury could convict the
defendant of assault and battery if some jurors found that the
defendant was guilty of harmful battery and others thought that
the defendant was guilty of offensive battery").
The defendant has not given us sufficient reason to depart
from these cases. Contrary to his suggestion, the fact that two
forms of a crime have different mens rea requirements is not
dispositive of whether a specific unanimity instruction is
warranted. For example, in an analogous context, the Supreme
Judicial Court has held that attempted battery and threatened
battery are closely related ways of committing the same crime
such that a jury need not be unanimous as to which was the basis
for their verdict. See Commonwealth v. Porro, 458 Mass. 526,
534 (2010). This is so despite the different mens rea
requirements underlying the two theories. See id. See also,
e.g., Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009) (jury
need not be unanimous as to whether defendant is guilty as
principal or joint venturer).
The defendant also argues that the intentional and reckless
forms of assault and battery are distinct because each requires
a different result -- that is, intentional battery requires only
a slight touching, whereas reckless battery requires physical
injury. See Mistretta, 84 Mass. App. Ct. at 907. While this
5 raises an interesting question, it is not one that is implicated
by the facts of this case. That is because the charge here was
ABDW causing "serious bodily injury," and so the judge
instructed the jury that, with respect to both theories of
assault and battery, they had to find "bodily injury that
results in a permanent disfigurement, loss or impairment of a
bodily function, limb or organ or a substantial risk of death."
We therefore need not and do not consider the question.
Finally, we are especially disinclined to revisit Mistretta
on the facts here because the Commonwealth has a colorable
argument that the defendant was not prejudiced by the lack of a
specific unanimity instruction, even assuming one was warranted.
Although the judge instructed the jury on both forms of assault
and battery, the Commonwealth in its opening statement and
closing argument presented its case as one of intentional
assault and battery, asserting that the defendant intentionally
stabbed the victim in the head before being put in the headlock.
We are therefore inclined to agree with the Commonwealth that
there was little to no potential for jury disagreement.
For these reasons we decline to overrule Mistretta and thus
conclude that the judge did not err in denying the defendant's
request for a specific unanimity instruction.
Judgment affirmed.
6 By the Court (Henry, Shin & Toone, JJ. 1),
Clerk
Entered: April 8, 2026.
1 The panelists are listed in order of seniority.