COMMONWEALTH vs. SALVATORE A. GAROFALO.

KASS, J. There was evidence that on four occasions between July, 1994, and April, 1995, the defendant, Salvatore Garofalo, battered Aimee Mack. As to what was said to have occurred in two of those incidents, Garofalo was acquitted by a jury. Around Labor Day in 1994, Garofalo slammed Mack against the walls of the apartment they had transiently shared, chased Mack down the stairs and to her car, threw her keys into the woods, grabbed her by the hair, and threatened to kill her if she called the police. That episode produced an indictment for assault and bat-

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tery (G. L. c. 265, s. 13A) on which the defendant was convicted. There was an episode on April 22, 1995, when Garofalo threw Mack to the floor, kicked her, threw objects at her, and hit her in the face with a glass candleholder. For that Garofalo was convicted of assault and battery by means of a dangerous weapon (G. L. c. 265, s. 15A [b]).

As to the judgment of conviction of assault and battery by means of a dangerous weapon, the government concedes error in the jury instructions, [Note 2] and that judgment is to be reversed. As to the simple assault and battery, the judgment shall stand. We deal relatively briefly with claims of error that the defense has directed at the prosecutor's closing argument and the sentencing.

1. Error in jury charge. When charging the jury on the elements of assault and battery with a dangerous weapon, the trial judge lapsed into an error first discussed in Commonwealth v. Moore, 36 Mass. App. Ct. 455 , 459 (1994), and later, after the trial of the instant case, in Commonwealth v. Ford, 424 Mass. 709 , 711 (1997). It had been a common practice, prior to Moore, to tell jurors, as the judge did here:

"It is not necessary that the defendant specifically intended to touch [the victim]. It is only necessary that he intentionally did the act which resulted in the touching, as opposed to having done it accidentally."

The mistake in that formulation is that the "intentional and unjustified use of force upon the person of another, however slight," Commonwealth v. Burno, 396 Mass. 622 , 625 (1986), does require that the person committing the battery intend the unconsented-to touching. Commonwealth v. Ford, supra at 711. [Note 3] The correct instruction for assault and battery is, therefore, that

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the jury must find beyond a reasonable doubt that the defendant touched the victim without the victim's consent and without justification and that he did so intentionally. [Note 4] That the error occurred in connection with the judge's instruction on assault and battery with a dangerous weapon is conceded by the Commonwealth. On that indictment the defendant is entitled to a new trial. In view of the underlying flaw in the charge pertaining to assault and battery with a dangerous weapon in this case, it is not necessary to consider the defendant's contention - not raised at trial - that, as to the candleholder, the jury were to be instructed that the defendant must have intended to use it in a dangerous fashion. Parenthetically, if the jury are correctly instructed that they must find the touching to be intentional, it would be sufficient to instruct the jury that the essentially harmless item, i.e., the candleholder, can be transformed into a dangerous weapon if it is used in a dangerous fashion. Commonwealth v. Dreyer, 18 Mass. App. Ct. 562 , 563 (1984). Compare Commonwealth v. Moore, 36 Mass. App. Ct. at 458 n.2. Put another way, once a jury has found an intentional touching with an object and that the object as used was a dangerous weapon, its work is done. There is no reason to instruct the jury

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that they must also find an intent to use the object as a dangerous weapon.

2. The closing argument. When instructing on the separate indictment of simple assault and battery, the judge instructed the jury correctly, substantially along the lines of the model described in note 4, supra. The defense, however, attacks the conviction of assault and battery on the ground that the prosecutor made an unfairly prejudicial closing argument. Significantly, there was no objection to the closing argument. See Commonwealth v. Bourgeois, 391 Mass. 869 , 884 (1984). Compare Commonwealth v. Griffith, 45 Mass. App. Ct. 784 , 785 (1998).

We have reviewed the closing argument and are of opinion that it crosses no line of prohibition. To the degree that the argument might have warmed the passions of the jury, it did so by reference to testimony that, when recalled, would have that effect. That is permissible. Commonwealth v. Lyons, 426 Mass. 466 , 472 (1998). Commonwealth v. Kent K., 427 Mass. 754 , 759 n.6 (1998). Contrary to the defendant's assertion, there was no vouching for the credibility of prosecution witnesses. A single accidental use of the pronoun "he" instead of "she," assuming it is not a stenographer's error (defense trial counsel either did not hear such a mistake or thought nothing of it), could hardly be taken as a misstatement of the evidence. There is no risk that the jury might have been confused.

3. Comment on defendant's record at sentencing. At sentencing, the trial judge said: "I am going to impose a five- to six-year Walpole sentence . . . having given it a significance that is serious, violent, and repetitive, based on his prior record of convictions." On the basis of that statement, the defense taxes the judge with having punished the defendant for conduct other than that for which he stands convicted in the particular case. See Commonwealth v. LeBlanc, 370 Mass. 217 , 221 (1976). [Note 5] That argument is simply wrong. It is permissible to consider a defendant's prior convictions when sentencing. See Commonwealth v. Coleman, 390 Mass. 797 , 805 (1984);

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Commonwealth v. Molino, 411 Mass. 149 , 155 (1991). Indeed, the Superior Court sentencing guidelines provide that prior convictions are to be factored into computation of the sentence. Compare Commonwealth v. Lewis, 41 Mass. App. Ct. 910 (1996); Commonwealth v. Howard, 42 Mass. App. Ct. 322 , 326 (1997).

4. Conclusion. The judgment of conviction of assault and battery with a dangerous weapon is reversed, and the verdict on that count is set aside. The Commonwealth may, of course, require the defendant to stand trial again on that charge. The judgment of conviction of assault and battery is affirmed. The judge may resentence the defendant on that conviction.

So ordered.