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
21-P-919
COMMONWEALTH
vs.
JASON LABBE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of assault and
battery by means of a dangerous weapon (ABDW), a door, in
violation of G. L. c. 265, § 15A (b), arguing that the evidence
was insufficient. He also argues that the judge committed
reversible error by admitting prejudicial hearsay, and that his
conviction of assault and battery on a family or household
member (domestic A&B), in violation of G. L. c. 265, § 13M,
cannot stand because it is duplicative of his conviction of
ABDW. For the reasons set forth below, we reverse the
defendant's conviction of ABDW, affirm the domestic A&B
conviction, and remand for resentencing.
Background. We summarize the relevant trial evidence as
follows. On June 23, 2019, the defendant and the victim, the
defendant's wife, had an argument at their home in Middleboro. The victim's two sons were home and in the youngest son's
bedroom when the argument started. After hearing them argue,
the eldest son, age twelve, "poked [his] head out," saw the
victim and defendant exit a "back room," saw the victim crying,
and saw both the defendant and victim pacing inside the house.
The eldest son testified that he heard the victim say to the
defendant that he (the defendant) had punched her in the face.
After arguing for about fifteen minutes the defendant and the
victim were facing each other when the victim turned to face the
exit door. The eldest son then saw the defendant push the
victim and the victim fall into the door. As the victim fell,
she hit her head on the doorknob.
The defendant was charged with, among other things, ABDW
and domestic A&B. The defendant waived his right to a trial by
jury and proceeded with a bench trial. At the close of the
evidence, the judge found the defendant guilty of both ABDW and
domestic A&B.1 The defendant was sentenced to two years and six
months to the house of correction for ABDW and two years of
probation for domestic A&B, to be served from and after his
committed sentence.
Discussion. 1. Sufficiency of the evidence. The
defendant argues that the trial judge erred in denying his
1 The judge acquitted the defendant of the other charges.
2 motion for a required finding of not guilty with respect to the
ABDW charge. The Commonwealth concedes that it did not present
sufficient evidence to prove that the defendant committed the
assault and battery "by means of a dangerous weapon." G. L.
c. 265, § 15A (b). Having conducted our own review of the
record, see Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379
(1987), we agree.
Courts have classified dangerous weapons as either
dangerous per se or dangerous as used. See Commonwealth v.
Appleby, 380 Mass. 296, 303-304 (1980). A door is not a
dangerous weapon per se. Therefore, the Commonwealth was
required to prove that the defendant intentionally or recklessly
used the item in a manner capable of causing serious bodily
harm. See Commonwealth v. Escobar, 490 Mass. 488, 499-500
(2022); Commonwealth v. Sexton, 425 Mass. 146, 151 (1997).
Put plainly, there was no evidence that the defendant
intentionally used the door. Contrast Sexton, 425 Mass. at 151
(sufficient evidence of intentional use of pavement where
defendant "bang[ed] the victim's head against the hard
surface"). Additionally, no evidence was presented that the
defendant used the door in a wanton or reckless fashion.
Contrast Escoabar, 490 Mass. at 500, citing Commonwealth v.
McIntosh, 56 Mass. App. Ct. 827, 829-831 (2002) (ABDW may occur
3 "where an individual recklessly punches through a glass window,
causing glass shards to eject and seriously injure bystanders").
The Commonwealth did, however, prove the lesser included
offense of assault and battery (simple A&B). See G. L. c. 265,
§ 13A; Commonwealth v. Gouse, 461 Mass. 787, 798 (2012) (simple
A&B is lesser included offense of ABDW). Our usual remedy where
there is insufficient evidence of an element of a greater crime,
but "where the remaining untainted elements include all the
elements of a lesser included offense," is to vacate the
conviction of the greater crime and remand for entry of judgment
and resentencing on the lesser included offense. Commonwealth
v. Labadie, 467 Mass. 81, 88 (2014). However, as discussed
below, because we affirm the conviction of domestic A&B, the
entry of a conviction of simple A&B would result in multiple
punishments for the same offense.
2. Hearsay. The defendant argues that the eldest son's
trial testimony, that he heard the victim say the defendant
punched her in the face, was inadmissible hearsay and was
prejudicial. The Commonwealth makes no argument that the son's
statement was properly admitted under any exception to the rule
against hearsay, and we assume without deciding that the
testimony should have been excluded. Because the defendant
objected to the statement at trial, we review for prejudicial
error. Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012).
4 There is no prejudice when the admission of inadmissible hearsay
"did not influence the [fact finder], or had but very slight
effect." Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
If, however, we cannot say, "after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error, then it is
impossible to conclude that substantial rights were not
affected" (citation and alteration omitted). Commonwealth v.
Kelly, 470 Mass. 682, 688 (2015).
The defendant's claim of prejudicial error is based on the
premise that the judge found him guilty of domestic A&B arising
out of the hearsay evidence of the punch rather than the
properly admitted evidence of the push. After reviewing the
full context of the record in this case, we conclude that the
judge did not rely on the hearsay statement when he found the
defendant guilty of domestic A&B and ABDW, and that the
conviction of domestic A&B was based on the defendant's actions
of pushing the victim. The evidence at trial and both parties'
closing arguments solely focused on the defendant's conduct of
pushing the victim into the door.2 Neither the Commonwealth nor
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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
21-P-919
COMMONWEALTH
vs.
JASON LABBE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of assault and
battery by means of a dangerous weapon (ABDW), a door, in
violation of G. L. c. 265, § 15A (b), arguing that the evidence
was insufficient. He also argues that the judge committed
reversible error by admitting prejudicial hearsay, and that his
conviction of assault and battery on a family or household
member (domestic A&B), in violation of G. L. c. 265, § 13M,
cannot stand because it is duplicative of his conviction of
ABDW. For the reasons set forth below, we reverse the
defendant's conviction of ABDW, affirm the domestic A&B
conviction, and remand for resentencing.
Background. We summarize the relevant trial evidence as
follows. On June 23, 2019, the defendant and the victim, the
defendant's wife, had an argument at their home in Middleboro. The victim's two sons were home and in the youngest son's
bedroom when the argument started. After hearing them argue,
the eldest son, age twelve, "poked [his] head out," saw the
victim and defendant exit a "back room," saw the victim crying,
and saw both the defendant and victim pacing inside the house.
The eldest son testified that he heard the victim say to the
defendant that he (the defendant) had punched her in the face.
After arguing for about fifteen minutes the defendant and the
victim were facing each other when the victim turned to face the
exit door. The eldest son then saw the defendant push the
victim and the victim fall into the door. As the victim fell,
she hit her head on the doorknob.
The defendant was charged with, among other things, ABDW
and domestic A&B. The defendant waived his right to a trial by
jury and proceeded with a bench trial. At the close of the
evidence, the judge found the defendant guilty of both ABDW and
domestic A&B.1 The defendant was sentenced to two years and six
months to the house of correction for ABDW and two years of
probation for domestic A&B, to be served from and after his
committed sentence.
Discussion. 1. Sufficiency of the evidence. The
defendant argues that the trial judge erred in denying his
1 The judge acquitted the defendant of the other charges.
2 motion for a required finding of not guilty with respect to the
ABDW charge. The Commonwealth concedes that it did not present
sufficient evidence to prove that the defendant committed the
assault and battery "by means of a dangerous weapon." G. L.
c. 265, § 15A (b). Having conducted our own review of the
record, see Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379
(1987), we agree.
Courts have classified dangerous weapons as either
dangerous per se or dangerous as used. See Commonwealth v.
Appleby, 380 Mass. 296, 303-304 (1980). A door is not a
dangerous weapon per se. Therefore, the Commonwealth was
required to prove that the defendant intentionally or recklessly
used the item in a manner capable of causing serious bodily
harm. See Commonwealth v. Escobar, 490 Mass. 488, 499-500
(2022); Commonwealth v. Sexton, 425 Mass. 146, 151 (1997).
Put plainly, there was no evidence that the defendant
intentionally used the door. Contrast Sexton, 425 Mass. at 151
(sufficient evidence of intentional use of pavement where
defendant "bang[ed] the victim's head against the hard
surface"). Additionally, no evidence was presented that the
defendant used the door in a wanton or reckless fashion.
Contrast Escoabar, 490 Mass. at 500, citing Commonwealth v.
McIntosh, 56 Mass. App. Ct. 827, 829-831 (2002) (ABDW may occur
3 "where an individual recklessly punches through a glass window,
causing glass shards to eject and seriously injure bystanders").
The Commonwealth did, however, prove the lesser included
offense of assault and battery (simple A&B). See G. L. c. 265,
§ 13A; Commonwealth v. Gouse, 461 Mass. 787, 798 (2012) (simple
A&B is lesser included offense of ABDW). Our usual remedy where
there is insufficient evidence of an element of a greater crime,
but "where the remaining untainted elements include all the
elements of a lesser included offense," is to vacate the
conviction of the greater crime and remand for entry of judgment
and resentencing on the lesser included offense. Commonwealth
v. Labadie, 467 Mass. 81, 88 (2014). However, as discussed
below, because we affirm the conviction of domestic A&B, the
entry of a conviction of simple A&B would result in multiple
punishments for the same offense.
2. Hearsay. The defendant argues that the eldest son's
trial testimony, that he heard the victim say the defendant
punched her in the face, was inadmissible hearsay and was
prejudicial. The Commonwealth makes no argument that the son's
statement was properly admitted under any exception to the rule
against hearsay, and we assume without deciding that the
testimony should have been excluded. Because the defendant
objected to the statement at trial, we review for prejudicial
error. Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012).
4 There is no prejudice when the admission of inadmissible hearsay
"did not influence the [fact finder], or had but very slight
effect." Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
If, however, we cannot say, "after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error, then it is
impossible to conclude that substantial rights were not
affected" (citation and alteration omitted). Commonwealth v.
Kelly, 470 Mass. 682, 688 (2015).
The defendant's claim of prejudicial error is based on the
premise that the judge found him guilty of domestic A&B arising
out of the hearsay evidence of the punch rather than the
properly admitted evidence of the push. After reviewing the
full context of the record in this case, we conclude that the
judge did not rely on the hearsay statement when he found the
defendant guilty of domestic A&B and ABDW, and that the
conviction of domestic A&B was based on the defendant's actions
of pushing the victim. The evidence at trial and both parties'
closing arguments solely focused on the defendant's conduct of
pushing the victim into the door.2 Neither the Commonwealth nor
2 We note that the defendant did not request, and the Commonwealth did not provide, a bill of particulars, which would have given us more clarity on this issue. See Mass. R. Crim. P. 13 (b), as appearing in 442 Mass. 1516 (2004).
5 defense counsel even mentioned the punch to the face during
their closing arguments or during sentencing. The judge's
questions to the eldest son during direct examination also show
that the judge's focus was on the push, not the punch.3
The defendant's contrary position is based on a statement
made by the judge during sentencing. After hearing the
prosecutor's and defense attorney's sentencing recommendations,
the judge allowed the defendant, who had not testified, to make
a statement. In his statement, the defendant portrayed the
victim as the aggressor and claimed that he was merely defending
himself. He told the judge that when he was at the door
attempting to leave, the victim grabbed his arm and he "pushed
her off [him]."4
When the defendant concluded his remarks, the judge
addressed him. The judge stated that the evidence contradicted
the defendant's claims, focusing first on the push, which, the
judge inferred, resulted in the "blood-curdling screams" that a
neighbor described. The judge further discredited the
3 The judge asked few questions of the eldest son, most of which focused on the eldest son's observations of the push: "I thought at this stage you had come out of the room to see if you could help;" "You were not still peeking out the door;" and "Is it the doorknob [sic], or the door?" 4 The defendant also stated, "I was leaving the house after I was
assaulted. . . . She had my arm, and she's pullin' on my arm; I can feel her nails diggin' into my wrist, and I say, 'Let go!' . . . She has combative behavior; she's assaultive. I was just trying to leave."
6 defendant's characterization that he was not physically
aggressive with his wife by referring to the son's testimony
regarding the mother's statement that the defendant had punched
her in the face. And in relation to the punch, the judge
commented, "Seems to me there's a separate and distinctive
assault and battery on the evidence as I've heard it."
This context shows the judge did not base his guilty
findings on the evidence of the punch, but rather took this
evidence into his sentencing calculus. When a judge acts as
both the finder of fact and the sentencing judge, it is entirely
appropriate for the judge to consider factors as the sentencing
judge that he could not have considered as the fact finder. See
Commonwealth v. Celeste, 358 Mass. 307, 309-310 (1970).
Accordingly, we conclude that admission of the hearsay evidence
was not prejudicial error.
3. Duplicative convictions. The defendant also argues his
two convictions cannot stand because they are duplicative in
that they were not based on separate and distinct acts. Based
on the conclusions above, we address whether entry of a
conviction of simple A&B, which would be our normal remedy where
ABDW is charged yet there is insufficient evidence of use of a
dangerous weapon, would be duplicative of the defendant's
conviction of domestic A&B.
7 "The Fifth Amendment to the United States Constitution
mandates that 'a person cannot twice be put in jeopardy for the
same offence.'" Commonwealth v. Taylor, 486 Mass. 469, 477
(2020), quoting Marshall v. Commonwealth, 463 Mass. 529, 534
(2012). "The traditional rule in Massachusetts, as embodied in
Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and
its progeny, is that 'a defendant may properly be punished for
two crimes arising out of the same course of conduct provided
that each crime requires proof of an element that the other does
not.'" Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting
Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
As discussed above, the record shows and both parties agree
that the conviction of domestic A&B rested on the push, so both
convictions, where based on the same conduct, could only stand
if "neither crime is a lesser-included offense of the other, and
convictions on both are deemed to have been authorized by the
Legislature and hence not [duplicative]." Commonwealth v.
Jones, 441 Mass. 73, 75 (2004), quoting Commonwealth v. Jones,
382 Mass. 387, 393 (1981). The only difference between the two
crimes of domestic A&B and simple A&B is that domestic A&B
requires proof of one element that simple A&B does not: that
the victim was a family or household member. Compare G. L.
c. 265, § 13M, with G. L. c. 265, § 13A. Simple A&B is thus a
lesser included offense of domestic A&B. "The appropriate
8 remedy for the imposition of duplicative convictions is to
vacate both the conviction and sentence on the lesser included
offense, and to affirm the conviction on the more serious
offense." Commonwealth v. Mello, 420 Mass. 375, 398 (1995).
Here, however, because a conviction of the lesser included
offense (simple A&B) not only may not but did not enter, we are
constrained not merely to reverse the conviction for ABDW for
lack of evidence of a dangerous weapon, but also to order the
entry of judgment for the defendant on that count of the
indictment.
Conclusion. The judgment of conviction of ABDW is reversed
and the verdict on that count of the indictment set aside. The
judgment of conviction of domestic A&B is affirmed. The case is
remanded for entry of a judgment for the defendant on count two
of the indictment and for resentencing on count one.
So ordered.
By the Court (Massing, Sacks & Walsh, JJ.5),
Clerk
Entered: March 3, 2023.
5 The panelists are listed in order of seniority.