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
24-P-194
COMMONWEALTH
vs.
JOSHUA M. LOFINK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an acrimonious exchange between the defendant and
a group of strangers who criticized the manner in which he and
his girlfriend were treating their dog, the defendant stabbed
two men of the group and slashed the tires of one of their cars.
As a result, the defendant was convicted of two counts of
mayhem, in violation of G. L. c. 256, § 14, two counts of
assault and battery by means of a dangerous weapon causing
serious bodily injury (ABDW-SBI), in violation of G. L. c. 265,
§ 15A (c) (i), and one count of vandalism, in violation of G. L.
c. 266, § 126A. On appeal, the defendant contends that the
judge erred by not instructing the jury that ABDW-SBI is a
lesser included offense of mayhem, and trial counsel was ineffective for not requesting that instruction. He further
argues that the convictions of ABDW-SBI are duplicative of his
convictions of mayhem and that his conviction of vandalism
should be vacated because the indictment failed to set forth the
elements of the offense.
It is undisputed that the convictions of ABDW-SBI were
based on the same facts that supported the convictions of
mayhem, and the jury were not specifically instructed that the
offenses must be supported by separate and distinct acts.
Consequently, the convictions are duplicative, and we reverse
the two convictions of ABDW-SBI and set aside the verdicts. We
affirm the two convictions of mayhem and the conviction of
vandalism.
Background. The jury could have found the following facts
beyond a reasonable doubt. On the evening of September 16,
2021, the defendant and his girlfriend took their dog for a
walk. As the two walked down the staircase from their apartment
to the street, they pulled the dog down the steps causing the
dog's head to hit and bounce off each step. The two were
yelling at the dog, who got loose and ran down the middle of the
street. These events were seen by a group of friends, including
the two victims, Ernest Ferry, and his cousin, Jamie Hassan, as
well as Ferry's girlfriend and three children. Ferry, Hassan,
2 and the girlfriend were in separate vehicles parked across the
street from the defendant's apartment. Ferry accused the
defendant and his girlfriend of mistreating the dog. Following
the initial verbal altercation, the victims and Ferry's
girlfriend drove to a nearby parking lot of a local liquor store
where another confrontation ensued. The defendant's girlfriend
and Ferry's girlfriend shouted at each other about the dog's
mistreatment. Ferry also shouted at the defendant's girlfriend
until, at a certain point, Ferry told the group "let's go" and
began to walk away. As Ferry was walking toward his car, the
defendant stabbed him in the back. The defendant then walked
over to Ferry's car and slashed its tires. Hassan responded by
jumping back into his car and following the defendant. When
Hassan approached the defendant, he asked the defendant if he
had stabbed his cousin, to which the defendant replied: "Yeah
and you're next." The defendant then stabbed Hassan through the
open driver's side window.
Both Ferry and Hassan suffered serious injuries. Ferry had
a punctured lung, multiple lacerations, deep stab wounds to his
left arm, and required three units of blood when he arrived at
the hospital. Hassan's left arm also had several stab wounds,
and the emergency physician who treated him testified at trial
that "had EMS not place[d] the tourniquet [on his arm] promptly,
3 there was certainly risk that he would have died from blood loss
in the field."
Discussion. Under the circumstances presented, as the
Commonwealth concedes, the two charges of ABDW-SBI were each a
lesser included offense of the two charges of mayhem. "'A crime
is a lesser-included offense of another crime if each of its
elements is also an element of the other crime.'" Commonwealth
v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v.
Perry, 391 Mass. 808, 813 (1984). "To determine whether two
convictions are duplicative, we apply the 'long-prevailing test'
that asks 'whether each crime requires proof of an additional
fact that the other does not.'" Commonwealth v. Forbes, 86
Mass. App. Ct. 197, 202(2014), quoting Commonwealth v. Crocker,
384 Mass. 353, 357 (1981).
Moreover, while convictions on both a greater and lesser
included offense are permissible where the convictions rest on
separate and distinct acts, such was not the case here. See
Commonwealth v. King, 445 Mass. 217, 225 (2005) ("The acts that
support the two convictions cannot be 'so closely related in
fact as to constitute in substance but a single crime'"
[citation omitted]). To the contrary, as we have noted, it is
undisputed that the mayhem and ABDW-SBI convictions were based
on one course of conduct with respect to each of the two
4 victims. There was no evidence of separate and distinct acts
and, as a result, the conclusion that the convictions rested on
the same act or series of acts is inescapable. See Commonwealth
v. Rateree, 495 Mass. 610, 628-629 (2025).
Furthermore, even if we were to view the evidence
differently, the jury was not provided with any guidance as to
which acts supported each charge other than specifying which
acts corresponded to the named victims. Nor did the verdict
slip clarify the issue. Accordingly, the appropriate remedy is
to vacate the convictions of ABDW-SBI. See Commonwealth v.
Martin, 425 Mass. 718, 722-723 (1997).1
The defendant claims that the judge's failure to instruct
the jury, sua sponte, that ABDW-SBI was a lesser included
offense of mayhem created a substantial risk of a miscarriage of
justice. We discern no error and no such risk. Rather, we view
the record as demonstrating that the absence of a request for a
charge on a lesser included offense by trial counsel amounted to
a "calculated, tactical, all-or-nothing choice." Commonwealth
v. Mills, 54 Mass. App. Ct. 552, 555 (2002). Because the
defendant pursued an "all or nothing defense," he effectively
1 Because the sentences on each conviction of ABDW-SBI are to be served concurrently with the first mayhem conviction, we need not remand the case for resentencing. See Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).
5 negated any responsibility for the judge to give an instruction
Free access — add to your briefcase to read the full text and ask questions with AI
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
24-P-194
COMMONWEALTH
vs.
JOSHUA M. LOFINK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an acrimonious exchange between the defendant and
a group of strangers who criticized the manner in which he and
his girlfriend were treating their dog, the defendant stabbed
two men of the group and slashed the tires of one of their cars.
As a result, the defendant was convicted of two counts of
mayhem, in violation of G. L. c. 256, § 14, two counts of
assault and battery by means of a dangerous weapon causing
serious bodily injury (ABDW-SBI), in violation of G. L. c. 265,
§ 15A (c) (i), and one count of vandalism, in violation of G. L.
c. 266, § 126A. On appeal, the defendant contends that the
judge erred by not instructing the jury that ABDW-SBI is a
lesser included offense of mayhem, and trial counsel was ineffective for not requesting that instruction. He further
argues that the convictions of ABDW-SBI are duplicative of his
convictions of mayhem and that his conviction of vandalism
should be vacated because the indictment failed to set forth the
elements of the offense.
It is undisputed that the convictions of ABDW-SBI were
based on the same facts that supported the convictions of
mayhem, and the jury were not specifically instructed that the
offenses must be supported by separate and distinct acts.
Consequently, the convictions are duplicative, and we reverse
the two convictions of ABDW-SBI and set aside the verdicts. We
affirm the two convictions of mayhem and the conviction of
vandalism.
Background. The jury could have found the following facts
beyond a reasonable doubt. On the evening of September 16,
2021, the defendant and his girlfriend took their dog for a
walk. As the two walked down the staircase from their apartment
to the street, they pulled the dog down the steps causing the
dog's head to hit and bounce off each step. The two were
yelling at the dog, who got loose and ran down the middle of the
street. These events were seen by a group of friends, including
the two victims, Ernest Ferry, and his cousin, Jamie Hassan, as
well as Ferry's girlfriend and three children. Ferry, Hassan,
2 and the girlfriend were in separate vehicles parked across the
street from the defendant's apartment. Ferry accused the
defendant and his girlfriend of mistreating the dog. Following
the initial verbal altercation, the victims and Ferry's
girlfriend drove to a nearby parking lot of a local liquor store
where another confrontation ensued. The defendant's girlfriend
and Ferry's girlfriend shouted at each other about the dog's
mistreatment. Ferry also shouted at the defendant's girlfriend
until, at a certain point, Ferry told the group "let's go" and
began to walk away. As Ferry was walking toward his car, the
defendant stabbed him in the back. The defendant then walked
over to Ferry's car and slashed its tires. Hassan responded by
jumping back into his car and following the defendant. When
Hassan approached the defendant, he asked the defendant if he
had stabbed his cousin, to which the defendant replied: "Yeah
and you're next." The defendant then stabbed Hassan through the
open driver's side window.
Both Ferry and Hassan suffered serious injuries. Ferry had
a punctured lung, multiple lacerations, deep stab wounds to his
left arm, and required three units of blood when he arrived at
the hospital. Hassan's left arm also had several stab wounds,
and the emergency physician who treated him testified at trial
that "had EMS not place[d] the tourniquet [on his arm] promptly,
3 there was certainly risk that he would have died from blood loss
in the field."
Discussion. Under the circumstances presented, as the
Commonwealth concedes, the two charges of ABDW-SBI were each a
lesser included offense of the two charges of mayhem. "'A crime
is a lesser-included offense of another crime if each of its
elements is also an element of the other crime.'" Commonwealth
v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v.
Perry, 391 Mass. 808, 813 (1984). "To determine whether two
convictions are duplicative, we apply the 'long-prevailing test'
that asks 'whether each crime requires proof of an additional
fact that the other does not.'" Commonwealth v. Forbes, 86
Mass. App. Ct. 197, 202(2014), quoting Commonwealth v. Crocker,
384 Mass. 353, 357 (1981).
Moreover, while convictions on both a greater and lesser
included offense are permissible where the convictions rest on
separate and distinct acts, such was not the case here. See
Commonwealth v. King, 445 Mass. 217, 225 (2005) ("The acts that
support the two convictions cannot be 'so closely related in
fact as to constitute in substance but a single crime'"
[citation omitted]). To the contrary, as we have noted, it is
undisputed that the mayhem and ABDW-SBI convictions were based
on one course of conduct with respect to each of the two
4 victims. There was no evidence of separate and distinct acts
and, as a result, the conclusion that the convictions rested on
the same act or series of acts is inescapable. See Commonwealth
v. Rateree, 495 Mass. 610, 628-629 (2025).
Furthermore, even if we were to view the evidence
differently, the jury was not provided with any guidance as to
which acts supported each charge other than specifying which
acts corresponded to the named victims. Nor did the verdict
slip clarify the issue. Accordingly, the appropriate remedy is
to vacate the convictions of ABDW-SBI. See Commonwealth v.
Martin, 425 Mass. 718, 722-723 (1997).1
The defendant claims that the judge's failure to instruct
the jury, sua sponte, that ABDW-SBI was a lesser included
offense of mayhem created a substantial risk of a miscarriage of
justice. We discern no error and no such risk. Rather, we view
the record as demonstrating that the absence of a request for a
charge on a lesser included offense by trial counsel amounted to
a "calculated, tactical, all-or-nothing choice." Commonwealth
v. Mills, 54 Mass. App. Ct. 552, 555 (2002). Because the
defendant pursued an "all or nothing defense," he effectively
1 Because the sentences on each conviction of ABDW-SBI are to be served concurrently with the first mayhem conviction, we need not remand the case for resentencing. See Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).
5 negated any responsibility for the judge to give an instruction
on a lesser included offense. See id.
In addition, any error did not create a substantial risk of
a miscarriage of justice. As the defendant points out in his
brief, the policy favoring lesser included offense instructions
is to permit the jury "to convict of the offense established by
the evidence, rather than forcing them to choose between
convicting the defendant of an offense not fully established by
the evidence or acquitting." Commonwealth v. Woodward, 427
Mass. 659, 664-665 (1998). The defendant contends that, if
given a lesser included offense instruction, "the jury could
have found the defendant not guilty of the 'heinous' crime of
mayhem but guilty of a serious crime that carries a lower
maximum sentence." Given the posture of this case, the
defendant's contention is unavailing. First, the evidence did
fully establish the offense of mayhem. Second, because the jury
were instructed on both mayhem and ABDW-SBI as stand-alone
offenses, they were not forced to choose between mayhem
convictions and acquittal; they had the option to find him not
guilty of mayhem and still find him guilty of ABDW-SBI.2
2 Furthermore, in light of our conclusion that the absence of an instruction on the lesser included offense of ABDW-SBI did not create a substantial risk of a miscarriage of justice, there is no support for the defendant's related claim that trial counsel provided him with ineffective assistance by not
6 Next, the defendant contends that his conviction of
vandalism should be vacated, and the indictment dismissed
because the indictment did not include the statutory language
regarding the requisite state of mind for the offense. We
discern no merit to this argument.3 To begin with, the
indictment provided the defendant with sufficient notice of the
crime for which he had been indicted. The indictment included a
description of the crime charged as well as reference to the
specific criminal statute.4 As such, the indictment set forth
sufficient information to provide the defendant with notice and
knowledge of the nature of the crime against him. See
Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999).
Furthermore, the defendant failed to raise this issue
either before or during trial. The argument is therefore
requesting the instruction. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).
3 The defendant further contends that because the indictment is defective, he was convicted in violation of his rights under art. 12 of the Declaration of Rights. This too is an argument with no merit.
4 Commonwealth v. Cooper, 264 Mass. 378, 379-380 (1928), on which the defendant relies, is distinguishable. In that case, an indictment which allegedly charged the defendant with "attempt[ing] to burn [a] building" was defective because there was no reference within the indictment itself to a particular statute and the indictment omitted the common law definition of arson: "the malicious and willful burning [of] the house or outhouse of another man." Id. at 379-380.
7 waived. See Commonwealth v. Lamont L. 438 Mass. 842, 845
(2003); G. L. c. 277, § 47A.5 Nor did the defendant request a
bill of particulars pursuant to Mass. R. Crim. P. 13 (b), as
appearing in 442 Mass 1516 (2004), in connection with this
indictment.
Conclusion. The judgments on the defendant's convictions
of mayhem and the conviction of vandalism are affirmed. The
judgments on the defendant's convictions of assault and battery
by means of a dangerous weapon causing serious bodily injury are
reversed, the verdicts are set aside, and judgments shall enter
for the defendant.
So ordered.
By the Court (Vuono, Massing & Allen, JJ.6),
Clerk
Entered: November 24, 2025.
5 "In a criminal case, any defense or objection based upon defects in the . . . indictment . . . shall only be raised prior to trial . . . ." G. L. c. 277, § 47A. "The failure to raise any such defense or objection by motion prior to trial shall constitute a waiver thereof . . . ." Id.
6 The panelists are listed in order of seniority.