43 Mass. App. Ct. 918

September 8, 1997

The case was submitted on briefs.

Michele P. Moretti for the defendant.

Shaun S. McLean, Special Assistant District Attorney, for the Commonwealth.

Kushner, the defendant, was convicted of assault with a dangerous weapon, of the immediately threatened battery type (G. L. c. 265, s. 15B). When instructing the jury, the District Court judge followed generally s. 5.402 of the Model Jury Instructions For Use in the District Court Department (1988 ed.). [Note 1] That instruction was erroneous, having been held to be so in Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995), S.C., 421 Mass. 610 (1996), because it failed to inform the jury of the intent element of the crime, i.e., that the defendant intended to cause the victim fear or apprehension of immediate harm. Id. at 522-524. That issue was in contention. In Musgrave, defense counsel had requested and been refused the "intent to cause fear or apprehension" component of the jury charge; in the instant case, trial counsel for the defendant neither requested that element of the jury charge nor objected to the charge that the trial judge delivered. The error, therefore, can be consequential only if there is a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967). That risk is inherent when the elements of a crime are incorrectly stated in the course of a jury charge for the reason that the defendant may be "convicted for a course of conduct that [was] not criminal at all." Commonwealth v. Amirault, 424 Mass. 618 , 647 n.21 (1997). Accordingly, the conviction of assault by means of a dangerous weapon is reversed, and that verdict is set aside. As to a collateral conviction of operating a motor vehicle so as to endanger the public (G. L. c. 90, s. 24),

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the defendant has advanced no argument, and the judgment on that count is affirmed.

So ordered.


[Note 1] Instruction 5.402 was amended in the 1995 edition.