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ASSAULT AND BATTERY
G.L. c. 265, § 13A
The defendant is charged with having committed an assault and
battery upon [the alleged victim].
I. INTENTIONAL ASSAULT AND BATTERY
In order to prove the defendant guilty of committing an
intentional assault and battery, the Commonwealth must prove three
things beyond a reasonable doubt.
First : That the defendant touched the person of [the alleged
victim] ;
Second : That the defendant intended to touch [the alleged
victim] ; and
Third : That the touching was either likely to cause bodily
harm to [the alleged victim] , or was offensive.
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To prove the first element, the Commonwealth must prove the
defendant touched [the alleged victim]. A touching is any physical
contact, however slight.
If the touching was indirect. A touching may be direct as when a
person strikes another, or it may be indirect as when a
person sets in motion some force or instrumentality that
strikes another.
To prove the second element, the Commonwealth must prove
that the defendant intended to touch [the alleged victim] , in the sense
that the defendant consciously and deliberately intended the touching
to occur, and that the touching was not merely accidental or
negligent.
If additional language on intent is appropriate. The Commonwealth
is not required to prove that the defendant specifically
intended to cause injury to [the alleged victim].
Where there is evidence that the touching may be justified by a legally recognized “right” or “excuse,” the jury should be instructed with the specific “right” or “excuse” instructions (e.g., accident (9.100); necessity (9.240); self-defense (9.260). See Commonwealth v. Wood , 90 Mass. App. Ct. 271, 286-86 (2016) (where evidence did not raise a claim of right or excuse, the jury need not consider whether the touching was without right or excuse); Commonwealth v. Conley , 34 Mass. App. Ct. 50, 58 (1993) (where no evidence of self-defense, jury need not be instructed that right or excuse may justify the touching).
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II. RECKLESS ASSAULT AND BATTERY
A. If intentional assault and battery was already charged on. There is a
second way in which a person may be guilty of an assault and battery.
Instead of intentional conduct, it involves reckless conduct that
results in bodily injury.
B. If intentional assault and battery was not already charged on. The
defendant is charged with having committed an assault and battery
upon [the alleged victim] by reckless conduct.
In order to prove the defendant guilty of having committed an
assault and battery by reckless conduct, the Commonwealth must
prove two things beyond a reasonable doubt:
First: That the defendant intentionally engaged in actions
which caused bodily injury to [the alleged victim] ; and
Second : That the defendant’s actions amounted to reckless
conduct.
To prove the first element, the Commonwealth must prove that
the defendant intended (his) (her) acts which resulted in the touching,
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in the sense that the defendant consciously and deliberately intended
the act or acts to occur and that the act or acts did not happen
accidentally.
The Commonwealth must also prove that the defendant’s
actions caused bodily injury to [the alleged victim]. Under the law, a
bodily injury must be sufficiently serious to interfere with the alleged
victim’s health or comfort. It need not be permanent, but it must be
more than trifling. For example, an act that only shakes up a person
or causes only momentary discomfort would not be sufficient.
To prove the second element, the Commonwealth must prove
the defendant acted recklessly. It is not enough for the
Commonwealth to prove that the defendant acted negligently – that is,
acted in a way that a reasonably careful person would not. It must be
shown that the defendant’s actions went beyond mere negligence and
amounted to recklessness. The defendant acted recklessly if (he)
(she) knew, or should have known, that such actions were very likely
to cause substantial harm to someone, but (he) (she) ran that risk and
went ahead anyway.
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SUPPLEMENTAL INSTRUCTIONS
Victim injured while escaping. The defendant may be convicted of
assault and battery if the Commonwealth has proved beyond a
reasonable doubt that the defendant caused [the alleged victim]
reasonably to fear an immediate attack from the defendant, which
then led (him) (her) to try to (escape) ( or ) (defend) (himself)
(herself) from the defendant, and in doing so injured (himself)
(herself).
Commonwealth v. Parker, 25 Mass. App. Ct. 727, 731, 734, rev. denied, 402 Mass. 1104 (1988)
NOTES:
- No verdict slip or specific unanimity instruction required where both intentional and reckless assault and battery are alleged. Where the evidence warrants instructing on both intentional assault and battery and reckless assault and battery, the jurors need not be unanimous on whether the assault and battery was intentional or reckless. The judge, therefore, need not give a specific unanimity instruction or provide verdict slips for the jury to indicate the basis of its verdict. Commonwealth v. Mistretta , 84 Mass. App. Ct. 906, 906-07, rev. denied, 466 Mass. 1108 (2013). This is because “the forms of assault and battery are... closely related subcategories of the same crime.” Id. at
- “Specific unanimity is not required, because they 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)).
- Medical testimony. In a prosecution for assault and battery, medical testimony about the victim’s injuries is admissible to establish that the defendant’s assault on the victim was intentional and not accidental. Commonwealth v. Gill , 37 Mass. App. Ct. 457, 463-64 (1994).
- Transferred intent. An instruction on transferred intent indicates that the Commonwealth need only prove intent as to one of the intended victims and does not have to prove intent specifically directed at each of the actual victims. Commonwealth v. Melton , 436 Mass. 291, 299 n.11 (2002). “It is a familiar rule that one who shoots intending to hit A., and accidentally hits and injures B., is liable for an assault and battery on B.” Commonwealth v. Hawkins , 157 Mass. 551, 553 (1893); accord Commonwealth v. Drumgold , 423 Mass. 230, 259 (1996); Commonwealth v. Pitts , 403 Mass. 665, 668-69 (1989); Commonwealth v. Puleio , 394 Mass. 101, 109-10 (1985); Commonwealth v. Ely , 388 Mass. 69, 76 n.13 (1983).
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- Statement of reasons required if imprisonment not imposed. A jury session judge sentencing for this or one of the other crimes against persons found in G.L. c. 265 who does not impose a sentence of incarceration “shall include in the record of the case specific reasons for not imposing a sentence of imprisonment,” which shall be a public record. G.L. c. 265, § 41.
