Com. v. Farrell, 90-P-509

• Decision Date: 20 August 1991
• Docket Number: No. 90-P-509,90-P-509
• Citation: 31 Mass.App.Ct. 267,576 N.E.2d 710
• Parties: COMMONWEALTH v. Kevin R. FARRELL.
• Court: Appeals Court of Massachusetts

Page 710

576 N.E.2d 710

31 Mass.App.Ct. 267

COMMONWEALTH v. Kevin R. FARRELL.

No. 90-P-509.

Appeals Court of Massachusetts,

Norfolk.

Argued June 7, 1991.

Decided Aug. 20, 1991.

Murray Kohn, for defendant.

Robert C. Cosgrove, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, BROWN and GREENBERG, JJ.

ARMSTRONG, Justice.

The defendant was tried in the District Court on two counts of indecent assault and battery on a child under the age of fourteen years (G.L. c. 265, § 13B) and one count of simple assault and battery (G.L. c. 265, § 13A). The judge found the defendant guilty on one of the counts of indecent assault and battery. The other he dismissed as duplicative, and he dismissed the count of simple assault and battery as a lesser included offense.

The defendant appealed his conviction to the District Court jury-of-six session. There the somewhat uncertain evidence, taken most favorably to the Commonwealth, tended to show that the defendant, a bus driver, during a twenty-minute period when he was driving the victim, a five year old handicapped child, from summer school to home, slapped the child across the face several times and touched his penis. The judge, with the defendant's consent, instructed the jury that they could return a verdict of guilty either of indecent assault and battery on a child under fourteen or, alternatively, of simple assault and battery, as a lesser included offense. The jury did the latter, and the defendant appeals his conviction of simple assault and battery.

We held, in Commonwealth v. Eaton, 2 Mass.App.Ct. 113, 118, 309 N.E.2d 504 (1974), that simple assault and battery was a lesser offense included within the greater, statutory offense defined in § 13B. The element of lack of consent was considered specifically in Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622 (1983), which held (at 484-488, 457 N.E.2d 622) that such nonconsent was one of the elements of indecent assault and battery on a child. It implicitly rejected a contention that such batteries fall, as matter of law, within the class of physically harmful batteries which are unlawful regardless of consent. Id. at 481-484, 457 N.E.2d 622. (Batteries of that type are "[a]ny touching[s] 'with such violence that bodily harm is likely to result,' " id. at 482, 457 N.E.2d 622, quoting from Commonwealth v. Farrell, 322 Mass. 606, 620, 78 N.E.2d 697 [1948].)

By St.1986, c. 187, the Legislature amended § 13B to exclude lack of consent as an element of the crime of indecent assault and battery on a child under fourteen. ¹ It follows that a complaint framed, like this one, in the language of § 13B after the effective date of the 1986 amendment does not allege either lack of consent or a physically harmful touching. It further follows that a simple assault and battery (§ 13A), which requires proof of an actually or potentially physically harmful touching or of an unconsented touching (Burke, 390 Mass. at 483-484, 457 N.E.2d 622), is not a lesser included...