Commonwealth v. Khamphong Souvannasap.

• Court: Massachusetts Appeals Court
• Decided: February 22, 2024
• Docket: 23-P-0363
• Status: Unpublished

Opinion

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-363

COMMONWEALTH

vs.

KHAMPHONG SOUVANNASAP.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Khamphong Souvannasap, was convicted, after

a jury trial in the Superior Court, of aggravated rape in

violation of G. L. c. 265, § 22 (a); kidnapping in violation of

G. L. c. 265, § 261; strangulation or suffocation in violation of

G. L. c. 265, § 15D (b); and assault and battery by means of a

dangerous weapon, to wit, a "blunt object," in violation of

G. L. c. 265, § 15A (b). On appeal he challenges only his

conviction of assault and battery by means of a dangerous

weapon, arguing that the evidence was insufficient to prove that

he used a dangerous weapon. We affirm.

When reviewing the denial of a motion for a required

finding of not guilty, we take the evidence in the light most

1 The judge vacated the kidnapping conviction as duplicative of the conviction of aggravated rape. favorable to the prosecution to determine whether "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979). "[C]ircumstantial evidence is competent to

establish guilt beyond a reasonable doubt," Commonwealth v.

Gilbert, 423 Mass. 863, 868 (1996), and the inferences drawn

from the evidence "need only be reasonable and possible," not

"necessary or inescapable." Commonwealth v. Beckett, 373 Mass.

329, 341 (1977).

The defendant asserts that the Commonwealth failed to prove

that he harmed or even touched the victim with any item capable

of being used as a dangerous weapon because the Commonwealth was

unable either to identify the specific item that the defendant

used in the attack or to eliminate the possibility that he used

only "a bony body part."

A conviction under G. L. c. 265, § 15A (b), requires a

showing that the defendant intentionally touched the victim with

an item that is either dangerous per se or dangerous as used.

See Commonwealth v. Appleby, 380 Mass. 296, 303 (1980).

Included in the latter category is any item that, considering

how it is held or employed under the circumstances, is capable

of causing serious bodily harm. See Commonwealth v. Tevlin, 433

Mass. 305, 310 (2001); Commonwealth v. Marrero, 19 Mass. App.

2 Ct. 921, 922 (1984). The Commonwealth must show that the

defendant formed "the intent to use that object in a dangerous

or potentially dangerous fashion." Appleby, supra at 308. The

only objects categorically excluded from the definition of a

dangerous weapon are "human teeth and other parts of the human

body," which are "not dangerous weapons because they are not

instrumentalities apart from the defendant's person."

Commonwealth v. Mattei, 455 Mass. 840, 845 n.11, quoting

Commonwealth v. Sexton, 425 Mass. 146, 150 (1997).

The defendant argues that the Commonwealth must identify

the object used before the jury can determine if it was used in

a dangerous manner. He is incorrect. "The particular type of

dangerous weapon with which the offense was committed is not an

essential element of the crime charged." Commonwealth v.

Rumkin, 55 Mass. App. Ct. 635, 638 (2002). The fact that a

dangerous weapon was used can be inferred from the victim's

injuries. See Commonwealth v. Smith, 60 Mass. App. Ct. 204, 206

(2003).

The victim testified that the defendant struck her with

multiple thrown objects, some of which "felt heavy" and one of

which, striking her on the forehead, "felt really hard" and

caused a "big bump." The next day she had "a large bruise,

almost like a welt" on her forehead. The responding emergency

medical technician nurse described the injury as a contusion on

3 the left center of the victim's forehead, protruding between

one-half inch to one inch from her head. The nurse testified

that the injury "would have to have been the result of a blunt

force object," such as a baseball bat or a bottle. "This

evidence was sufficient to establish that the defendant used a

weapon." Smith, 60 Mass. App. Ct. at 206 (evidence sufficient

to convict of assault and battery by means of "blunt object"

where victim did not see weapon used but "felt a blow from a

rigid object, which had the immediate effect of knocking him to

the ground and left a round circular mark on his forehead").

The jury could have rationally inferred that the victim had been

struck by an object that, as used, was capable of causing

serious bodily harm. See Tevlin, 433 Mass. at 310.

The defendant also argues that the victim's memory was so

impaired and the nurse's testimony so speculative that the jury

could not find him guilty beyond a reasonable doubt without

direct evidence of the weapon. These arguments are misplaced.

It is the jury's province to assess the weight and credibility

4 of the evidence. See Commonwealth v. Tavares, 484 Mass. 650,

656 (2020).

Judgments affirmed.

By the Court (Meade, Massing & Sacks, JJ.2),

Assistant Clerk

Entered: February 22, 2024.

2 The panelists are listed in order of seniority.