Com. v. Cohen

• Citation: 771 N.E.2d 176,55 Mass. App. Ct. 358
• Decision Date: 28 June 2002
• Docket Number: No. 01-P-106.,01-P-106.
• Parties: COMMONWEALTH v. Stephen I. COHEN.
• Court: Appeals Court of Massachusetts

771 N.E.2d 176

55 Mass. App. Ct. 358

COMMONWEALTH v. Stephen I. COHEN.

No. 01-P-106.

Appeals Court of Massachusetts, Norfolk.

Argued May 9, 2002.

Decided June 28, 2002.

Janine T. Bandino, Revere, for the defendant.

Michael J. Markoff, Special Assistant District Attorney, for the Commonwealth.

Present: GREENBERG, BECK, & GRASSO, JJ.

GRASSO, J.

A District Court jury found the defendant guilty of assault and battery for intentionally spitting on a young woman with whom he had a disagreement outside a convenience store. See G.L. c. 265, § 13A. On appeal, the defendant contends that spitting on another, intentionally and without consent, does not amount to a prohibited touching under the statute. To the contrary, we conclude that such conduct does constitute an assault and battery.

We rehearse the familiar principles:

"Assault and battery is a common law crime now set forth in G.L. c. 265, § 13A. An assault is an offer or attempt to do a battery. See Commonwealth v. Shaffer, 367 Mass. 508, 515, 326 N.E.2d 880 (1975). Every battery includes an assault. Commonwealth v. Stratton, 114 Mass. 303 (1873). Hence we need only consider the elements of criminal battery.

"The law of criminal battery protects society's interest in ensuring that its members are free from harmful and offensive touchings. Because there are harmful batteries and offensive batteries, there is a bifurcation in the law of battery.... In short, a physically harmful touching is so regardless of consent. But an offensive touching is so only because of lack of consent.... A consensual, offensive touching is a contradiction in terms. Hence consent is always at issue, and evidence thereof is material, when the alleged battery is not of the physically harmful type."

Commonwealth v. Burke, 390 Mass. 480, 482-483, 457 N.E.2d 622 (1983).

Here, the Commonwealth needed to prove that, without justification or excuse, and without consent, the defendant intentionally committed a touching, however slight, that was offensive to the victim. See id. at 481, 457 N.E.2d 622; Commonwealth v. Pease, 49 Mass.App.Ct. 539, 543, 731 N.E.2d 92 (2000). The Commonwealth presented sufficient evidence to establish that the defendant had intentionally spat on the victim without her consent, and that she found it offensive.

The defendant contends, correctly, that there is no Massachusetts appellate decision holding that such conduct constitutes a prohibited touching. The absence of such a decision speaks to the self-evident nature of the conclusion. "The offensive touching may be direct, as by striking another, or it may be indirect, as by setting in motion some force or instrumentality with the intent to cause injury." Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 654, 614 N.E.2d 1027 (1993). "The affront to the victim's personal integrity is what makes the touching offensive." Commonwealth v. Burke, 390 Mass. at 483, 457 N.E.2d 622. It cannot be gainsaid that intentionally spitting on someone is an indirect touching that is repulsive, physically offensive, and violates the victim's personal integrity. We are in accord with other jurisdictions holding that an intentional and unconsented spitting on another constitutes a criminal battery. See, e.g., United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir.1974); Jackson v. State, 226 Ga.App. 256, 485 S.E.2d 832 (1997); People v. Peck, 260 Ill.App.3d 812, 814-815, 198 Ill.Dec. 760, 633 N.E.2d 222 (1994); State v. Sampsel, 268 Kan. 264, 268, 997 P.2d 664 (2000).

With respect to the defendant's other claimed errors, the judge did not err in instructing the jury that "spitting at a person could constitute a touching if saliva or spit actually came in...