Opinion
18-P-258
03-22-2019
COMMONWEALTH v. XAVIER FREDERICK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Xavier Frederick, was convicted of assault and battery by means of a dangerous weapon causing serious bodily injury. See G. L. c. 265, § 15A (c) (i). On appeal, the defendant contends that the evidence was insufficient to establish the element of serious bodily injury under the theory of permanent disfigurement. We affirm.
The jury also convicted the defendant of armed robbery, assault and battery by means of a dangerous weapon, and two counts of assault and battery. He raises no arguments as to those convictions, and we affirm them without further discussion.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. In March, 2015 the defendant beat and robbed Anthony DeCosta. DeCosta sustained lacerations to his face and head. He lost consciousness for approximately twenty minutes, and was transported by ambulance and helicopter to Tufts Medical Center in Boston. There he appeared confused, with a swollen cut 2.4 inches long near his ear below the temple and a superficial cut to the back of his scalp. The larger cut was closed with thirteen simple sutures.
Trial took place fourteen months after the incident. DeCosta testified "the biggest mark was the scar on the side of my face here and on the back of my head and head area." He explained that the scar started at the top of his ear and came down the side of his face. DeCosta displayed the scar on his face to the jury. He was also asked to point out a "little scar." It is unclear on this record whether the latter reference was to the scar near the ear, or to some other scar.
Discussion. The defendant contends that the trial judge should have entered a required finding of not guilty because the Commonwealth failed to establish that the scar on DeCosta's face was permanent, and therefore failed to establish serious bodily injury. "We review the denial of a motion for a required finding to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Beal, 474 Mass. 341, 345 (2016), quoting Latimore, 378 Mass. at 677.
"Assault and battery by means of a dangerous weapon causing serious bodily injury requires the Commonwealth to prove that the defendant intentionally touched the victim, however slightly; the touching was unjustified; the touching was done with an inherently dangerous weapon or an object used in a dangerous fashion; and the touching caused serious bodily injury." Commonwealth v. Vick, 454 Mass. 418, 432 (2009), citing G. L. c. 265, § 15A (c) (i). There are "three distinct routes for establishing serious bodily injury." Commonwealth v. Scott, 464 Mass. 355, 357 (2013) (discussing identical term in G. L. c. 265, 13A [b] [1]). "The Commonwealth may prove that a defendant caused bodily injury that resulted either in (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb, or organ; or (3) a substantial risk of death." Id., citing G. L. c. 265, § 13A (c). See G. L. c. 265, § 15A (d).
The Legislature, in St. 2002, c. 35, added enhanced penalties for assault and battery by means of a dangerous weapon resulting in serious bodily injury, G. L. c. 265, § 15A (c) (i), and created the felony of assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b) (i). The provisions employ substantially identical definitions of "serious bodily injury." See G. L. c. 265, § 13A (c); G. L. c. 265, § 15A (d). The two statutes are read in harmony. See Beal, 474 Mass. at 345 n.7; Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 163-164 (2005).
The statute does not define "permanent disfigurement." The judge's instructions did not define the term. Our limited case law tells us that whether a scar is permanently disfiguring may depend on the extent, size, severity, location, and duration of the injury. See, e.g., Commonwealth v. Farrell, 322 Mass. 606, 618 (1948) (jury could permissibly find that cigarette burns and slash marks were permanently disfiguring). Cf. Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 542 (2017) (under less exacting probable cause standard, grand jury could have found serious bodily injury based on victim's pointing to "permanent disfiguring scar on his head"). For purposes of appeal, the defendant makes no argument that the scarring was not disfigurement. Rather, the defendant maintains that the evidence was insufficient because there was no testimony that the scarring was permanent, and that expert testimony was required.
The adjective "permanent" modifies only the adjacent noun "disfigurement," and not "loss or impairment of a bodily function, limb or organ" or "substantial risk of death." Scott, 464 Mass. at 357 & n.2, citing Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 163 (2005).
There are some cases where the state of the medical evidence will require expert testimony to explain matters beyond the common experience of the ordinary reasonable juror, see Scott, 464 Mass. at 364, but a reasonable juror can recognize a scar without medical expertise or explanation. The jury also were permitted to give the words "permanent disfigurement" their usual and accepted meaning. See Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 489 (2018). Permanent means "continuing or enduring (as in the same state, status, place) without fundamental or marked change[;] not subject to fluctuation or alteration[;] fixed or intended to be fixed," as in "lasting," or "stable." Webster's Third New International Dictionary 1683 (1993). Disfigure has been defined as "to make less complete, perfect, or beautiful in appearance or character," id. at 649, or "to impair (as in beauty) by deep and persistent injuries." Merriam-Webster's Collegiate Dictionary 358 (11th ed. 2005), but we need not settle on a precise definition here, as the defendant challenges only whether there was sufficient evidence that the disfigurement was "permanent." Permanent modifies disfigurement; the two words must be read in tandem. See note 3, supra. A disfiguring injury need not be static. The injury may change over time, but the disfigurement (or the state of being disfigured) must remain permanent.
The defendant urges us to conclude as a matter of law that the evidence was insufficient because the jury could not evaluate whether the scar would fade or disappear without expert testimony. However, the 2.4-inch facial scar running down from the top of the ear was visible at trial some fourteen months after the injury. The jury were "permitted to draw reasonable inferences from the evidence based on their common sense and life experience." Beal, 474 Mass. at 346. The jury were permitted to determine whether the scar they saw resulted in disfigurement, whether the scar was likely to fluctuate or change, and whether as a result of any change, the disfigurement would remain permanent.
Although the question of sufficiency was encompassed by the motions for required finding, see Commonwealth v. Lao, 443 Mass. 770, 778-779 (2005), whether or not the scar resulted in permanent disfigurement was not a live issue at trial. We have nothing before us on appeal to indicate that the evidence was in fact insufficient, or that defense counsel's decision not to offer expert testimony on the permanency of the injury was anything other than strategic. No photograph of the scar at the time of the injury or the trial is before us. Other than the brief description recited here, there is no description (by way of testimony, offer of proof, or argument on motions for required finding) in the record before us regarding the size, shape, color, form, or actual location of the scar the jury saw. Therefore, on this record, we cannot say that the jury engaged in impermissible speculation in the absence of expert testimony, or that the evidence of scarring before the jury was insufficient to permit a rational trier of fact to infer beyond a reasonable doubt that the injury resulted in permanent disfigurement. For the same reason, we reject the defendant's related contention that the prosecutor referred to evidence not in the record when he argued to the jury that the scar was permanent.
In that respect, this case demonstrates the perils of appellate review when demonstrative evidence is not memorialized for an appellate court, either by a full description in the record, some other means of reproduction, or reconstruction of the record. See Mass. R. A. P. 8, as amended, 430 Mass. 1601 (1999). See now Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).
Judgments affirmed.
By the Court (Sullivan, Massing & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 22, 2019.