COMMONWEALTH vs. EDWARD KIRKER.

MARSHALL, C.J. We transferred this case from the Appeals Court on our own motion to consider the proper method for

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determining "the value of the property so destroyed or injured," an essential element of the felony offense of malicious destruction of property valued at over $250, pursuant to G. L. c. 266, § 127. [Note 1] In this case the defendant was convicted of that offense on evidence that he punctured two automobile tires with a knife. Citing to conflicting decisions of the Appeals Court, the Commonwealth contends that the law in this respect is unsettled. See Commonwealth v. Deberry, ante 211 (2004).

The defendant appealed from his conviction under G. L. c. 266, § 127, and from a conviction of assault and battery by means of a dangerous weapon (a knife) under G. L. c. 265, § 15A (b), claiming error in certain jury instructions and in the prosecutor's closing argument. [Note 2] At trial the defendant had moved for a required finding of not guilty on the ground that there was insufficient evidence that the value of the punctured tires exceeded $250. He had also argued that he stabbed the victim in self-defense. We affirm the conviction of assault and battery by means of a dangerous weapon. We reverse the conviction of malicious destruction of property over $250.

1. Background. This matter arises from a violent altercation outside a bar in Fall River on the night of May 4, 1999. Reviewing the record in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), a reasonable jury could have found the following.

On the evening in question, the defendant was sitting at the bar with a friend. The victim, accompanied by a man he knew

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as Thomas, entered the bar to play a game of pool. The defendant, whom the victim did not know, recognized Thomas, with whom the defendant then engaged in a heated exchange. [Note 3] As the argument escalated, the victim attempted to leave the bar. He testified that he heard footsteps behind him, turned, and saw the defendant "lunging" at him. The victim grabbed the defendant, threw him out the door, and the two fought. The victim kicked the defendant in the face, telling the defendant to "leave me alone." As the defendant stood up, he told the victim that he was going to kill him. The victim began to walk away, but twice turned when he heard the defendant following him. The third time the victim turned, he raised his fists and told the defendant to put down his knife and "fight like a man." As the victim approached the defendant, the victim tripped, at which point, he testified, the defendant ran toward him and stabbed him. [Note 4] A witness, viewing the scene from an apartment located over the bar, testified that he saw the defendant, who was bloodied, push the victim in the chest and that the defendant was holding something shiny in his hand.

The same witness testified that he then saw the defendant puncture a rear tire of an automobile, the victim's Toyota Celica. The first police officer on the scene testified that the defendant was near the rear tire of the victim's automobile, moving his arm; the officer then heard a hissing sound. The officer testified that the Toyota had two flat tires on its right side. The victim testified that he had paid $7,500 for the Toyota some two years before the incident, and that it was in "mint condition."

2. Malicious destruction of property. At the close of the Commonwealth's evidence, the defendant moved unsuccessfully for a required finding of not guilty, arguing that the Commonwealth had presented insufficient evidence of the value of the two slashed tires, which, he maintained, was the correct measurement of the "value" of the property damaged. G. L. c. 266, § 127. The Commonwealth contended, and the judge instructed,

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that for the purposes of G. L. c. 266, § 127, the jury should consider the value of the automobile, not the value of the damaged tires. In Commonwealth v. Deberry, supra, we concluded that, for purposes of determining whether an offense under G. L. c. 266, § 127, is a felony or misdemeanor, "where damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss" to the victim, in that case the reasonable cost of the repairs necessitated by the malicious conduct. Id. at 213. See Nichols v. United States, 343 A.2d 336, 342 (D.C. 1975) (where defendant damaged roof of building "the value of the property damaged or destroyed is to be measured by the reasonable cost of the repairs necessitated by the malicious conduct"); State v. Breznick, 134 Vt. 261, 266 (1976) (where defendants slashed four tires of victim's automobile, value of property so damaged refers "to the amount of damage inflicted so that an offender will be subject to punishment proportionate with the quantum of damage inflicted as opposed to the value of the property damaged").

In this case only the tires of the victim's automobile were destroyed; there was no other damage to the Toyota. Accordingly, the proper measure of the value of the property damaged is the replacement cost of the two tires. Commonwealth v. Deberry, supra at 224. Because the Commonwealth introduced no evidence to that effect, it failed to prove an essential element of the felony crime of malicious destruction of property over $250, under G. L. c. 266, § 127. [Note 5] Id. See Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001). The conviction of malicious destruction of property over $250 is reversed. A finding of guilty of the lesser included offense of malicious destruction of property under $250 shall enter. See Commonwealth v. Deberry, supra.

3. Jury instructions. In his instructions to the jury on self-defense, the judge stated, in part: "[I]f you find that the defendant acted reasonably in self-defense and did not use

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excessive force, then self-defense is a defense to the crime of assault and battery with a dangerous weapon." The defendant argues that the judge's use of the word "find" impermissibly shifted the burden of proof to the defendant by implying that he bore the burden of establishing that his actions were reasonable. Because the defendant did not object to the judge's instructions, we review any error to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We conclude it created no such risk. [Note 6]

The use of "finding" language in jury instructions on self-defense is disapproved. See, e.g., Connolly v. Commonwealth, 377 Mass. 527, 533-534 (1979) (noting with disapproval "repeated use of 'finding' language when explaining the law of self-defense"). Such use, however, "does not automatically render a set of instructions constitutionally defective." Commonwealth v. Albert, 391 Mass. 853, 859 (1984), citing Commonwealth v. Simmons, 383 Mass. 40, 44 (1981). Here, the judge correctly instructed the jury on self-defense, repeatedly instructed that the defendant did not need to prove anything or produce any evidence, and repeatedly instructed that the Commonwealth always bears the burden of proof. The judge stated specifically that "the Commonwealth must prove beyond a reasonable doubt that [the defendant] did not act in self-defense." Reviewing these instructions in their entirety, we conclude that a single, fleeting misuse of the word "find" did not shift the burden to the defendant to prove self-defense. [Note 7] See Commonwealth v. Whitman, 430 Mass. 746, 756-757 (2000);

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Commonwealth v. Lapointe, 402 Mass. 321, 328 (1988); Commonwealth v. Albert, supra. [Note 8]

4. Prosecutor's closing argument. In his closing argument the prosecutor told the jury that, while the defendant was seated at the bar before the victim and his companion arrived, he was "showing off his battle scars from the previous week." He was, continued the prosecutor, "[p]ulling up his shirt and showing a knife wound from some knife fight he got into a week before" (emphasis added). The prosecutor's statement that the defendant had been in a "knife fight" was not supported by the evidence. [Note 9] The defendant claims that the statement was improper and requires reversal. The claim lacks merit.

There was no objection to the prosecutor's remark. We therefore determine whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Thomas, 400 Mass. 676, 682 (1987). We consider the improper remark in the context of the entire argument, the judge's instructions to the jury, and the evidence at trial. [Note 10] See id. See also Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987) ("absence of objection by defense counsel during or after argument may provide some guidance as to whether a particular argument was prejudicial in the circumstances").

The prosecutor made only one reference to a "knife fight."

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The prosecutor's statement was part of his description of the defendant's actions before the victim entered the bar. He did not intimate that the defendant had been an aggressor in any fight, and the prosecutor drew no inference linking the earlier incident to the defendant's actions for which he was on trial. Moreover, the judge properly instructed the jury that opening and closing remarks are not evidence. The evidence of the defendant's guilt, as attested by the victim, an eyewitness, and other evidence, was overwhelming. In light of this evidence and the judge's instructions, the prosecutor's inaccurate characterization of the evidence of an earlier stabbing incident as a "knife fight" was insignificant and did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. O'Connell, 432 Mass. 657, 660 (2000) (minor inaccuracy in prosecutor's closing does not constitute reversible error in context of entire case); Commonwealth v. Thomas, supra at 682-685 (no risk that prosecutor's "slip of the tongue" misled jury and created substantial risk of miscarriage of justice).

5. Conclusion. The defendant's conviction of assault and battery by means of a dangerous weapon is affirmed. The judgment on the defendant's conviction of malicious destruction of property over $250 is reversed, the verdict is set aside, and the case is remanded to the Superior Court, where a finding of guilty of the lesser included offense of malicious destruction of property under $250 is to enter. The defendant is to be sentenced pursuant to those provisions of G. L. c. 266, § 127, that pertain to the misdemeanor offense.

So ordered.