COMMONWEALTH vs. DENNIS CONNOLLY

GILLERMAN, J. The defendant was convicted by a Superior Court jury on two indictments, one charging assault and battery, G. L. c. 265, s. 13A, the other charging assault and battery by means of a dangerous weapon, G. L. c. 265, s. 15A. The defendant's conviction for assault and battery was placed on file with the defendant's consent; he was sentenced on the second charge.

On appeal, the defendant argues that there were various prejudicial defects in the judge's charge. We examine that argument in detail.

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The few material facts are these. While walking down Cambridge Street in Boston, Danielle Hamilburg saw the defendant punch the victim several times. The victim fell to the ground, and the defendant stomped on his head twice with the heel of his sneaker [Note 1].

Hamilburg summoned police. When officers arrived, she identified the defendant (who was apprehended a short distance away) and he was placed under arrest.

At trial, the defendant presented the defense of misidentification. Other relevant facts are included in our analysis as necessary.

1. Dangerous weapon. Relying on certain passages appearing in Commonwealth v. Appleby, 380 Mass. 296 , 308 (1980), the defendant argues that the trial judge erred in failing to instruct the jury that, in order to find the defendant guilty of assault and battery with a dangerous weapon, the jury must find - since a sneaker is not inherently dangerous - an "intent on the part of the defendant to use . . . [his sneaker] as a dangerous weapon" (emphasis added).

The argument is mistaken. The dangerousness of an object which is not inherently dangerous turns on the manner in which it is used (objective test), not the intention of the actor when using it (subjective test). Appleby makes this clear: the dangerousness of an object for the purposes of G. L. c. 265, s. 15A, involves an objective inquiry focusing on " 'the nature . . . of the object as well as the way in which it is handled or controlled.' . . . A reasonable jury might well reach a different conclusion as to a riding crop when used in different circumstances." Id. at 307 n.5, quoting from Commonwealth v. Tarrant, 367 Mass. 411 , 416 (1975).

The relevant contrast is to the criminal intent, or scienter, required for conviction of this crime. The jury must find an intentional touching without consent, excuse, or justification. Commonwealth v. Garofalo, 46 Mass. App. Ct. 191 , 192-193 (1999). See Commonwealth v. Ford, 424 Mass. 709 , 711 (1997).

The judge's instructions adhered closely to this established framework for dangerousness and scienter. There was no error.

2. Other instructions. The defendant argues that it was

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prejudicial error for the judge to have refused his requested instruction (i) that assault and battery is a lesser included offense of assault and battery with a dangerous weapon, and (ii) that, in order to convict the defendant on both indictments, the jury must conclude that the defendant had committed discrete criminal acts with respect to each indictment. See Commonwealth v. Arriaga, 44 Mass. App. Ct. 382 , 389 (1998). It is undisputed that the judge omitted these instructions over the defendant's objections [Note 2].

Assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon. Commonwealth v. Dreyer, 18 Mass. App. Ct. 562 , 566 (1984) [Note 3]. If a lesser included offense instruction is requested by the defendant or by the Commonwealth, the judge must give the instruction on a lesser included offense if the facts allow, as was the case here. Commonwealth v. Woodward, 427 Mass. 659 , 662-663 (1998). Commonwealth v. Gilliard, 46 Mass. App. Ct. 348 , 350-351 (1999). The judge instructed the jury that they must determine whether the defendant's use of his sneaker constituted a dangerous weapon - which itself suggested the need of a lesser included offense instruction, yet none was given. The result was that the jury were deprived of the option of convicting on the lesser included offense, assault and battery, and were erroneously left, over the defendant's objection, with an all-or-nothing choice on the charge of assault and battery with a dangerous weapon. See Commonwealth v. Woodward, 427 Mass. at 664-665 Jury should not be forced "to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is guilty of some offense"); Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687 , 692 (1998).

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The error, which was plainly prejudicial to the defendant [Note 4], requires reversing the conviction on the charge of assault and battery with a dangerous weapon. Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46 , 48 (1986) (failure to instruct, on request, regarding available lesser included offense is reversible error).

It is possible that the assault and battery charge could have been ruled by the judge to refer to "a wholly separate act (and thus not a lesser included offense)," since the defendant first hit the victim with his fists, and only after the victim fell to the ground did he kick the victim with his sneaker. See Commonwealth v. Sanchez, 405 Mass. 369 , 381 (1989). However, the judge did not instruct the jury that convictions on both charges must be based on separate acts [Note 5]. Consequently, the jury may have wrongly concluded that they could convict on both indictments based only on the kicking episode. See Commonwealth v. Thomas, 400 Mass. 676 , 681-682 (1987) (judge failed to instruct the jury that the two convictions must be based on separate acts where there are separate charges which might otherwise constitute a lesser included and a greater offense; the judge's instructions became the "law of the case," and the jury "may well have convicted the defendants of both [the lesser included and the greater offenses] based on the same acts or series of acts"). See also Commonwealth v. Sanchez, 405 Mass. at 381-382.

The guilty verdict on the indictment charging assault and battery by means of a dangerous weapon is vacated, and the judgment is reversed. Because, as indicated above, the jury may have convicted the defendant on the assault and battery charge on the basis of the kicking episode, it would appear that the

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defendant may not be retried for that offense. See Commonwealth v. Arriaga, 44 Mass. App. Ct. 382 , 384 (1998) (double jeopardy clause prohibits "a second prosecution for the same offense after conviction"). The defendant was convicted of the assault and battery charge, and that case was placed on file with the defendant's consent. The Commonwealth may, on remand, bring that case forward for sentencing. See Commonwealth v. Brandano, 359 Mass. 332 , 336 (1971); Commonwealth v. Bianco, 388 Mass. 358 , 364-365, 370 (1983) (guilty verdict of indictment for manslaughter set aside and judgment to be entered for the defendant; the conviction of assault and battery charge, which had been placed on file, could be brought forward for sentencing).

The cases are remanded to the Superior Court for further proceedings.

So ordered.