Commonwealth v. Gorassi

• Decision Date: 06 April 2000
• Citation: 432 Mass. 244,733 NE 2d 106
• Parties: COMMONWEALTH v. ARTHUR J. GORASSI, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 244

733 NE 2d 106

COMMONWEALTH v. ARTHUR J. GORASSI, JR.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 2000.

August 9, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

Joseph J. Balliro for the defendant.

IRELAND, J.

After a one-day jury-waived trial in the Superior Court, the defendant was convicted on three indictments charging "assault... with intent to commit a felony, to wit: kidnapping." See G. L. c. 265, §§ 26, 29. On appeal, the defendant argues that the judge applied an erroneous concept of assault. The defendant also challenges the sufficiency of the evidence presented at trial.¹ We conclude that the judge may have applied an erroneous definition of assault. We further conclude that the evidence at trial, under a correct view of the definition of assault, was sufficient as to one indictment, but was insufficient as to the other two indictments. Accordingly, we reverse the convictions, remanding one indictment for retrial and the other two indictments for entry of findings of not guilty.

1. The evidence and the judge's statements. At trial, the Commonwealth produced evidence of two incidents that occurred on June 25, 1996, one in a hotel corridor involving two girls, eight and nine years of age, and one in a public library involving one girl, three years of age. The defendant stipulated that he was present at the hotel and the library at the relevant times.

a. The hotel incident. The Commonwealth introduced the testimony of one of the girls involved. The girl testified that her family and her friend's family were staying at the Marriott Hotel in Newton on June 25, 1996, and that around 6 P.M., she and her friend were drawing on a board in a function room. When the two girls left the room, the defendant, who had been standing near the elevator, started walking down the hallway behind them. The defendant caught up with the girls as they reached the end of a second hallway that terminated at a door leading to a cement stairwell. The defendant asked the girls if they knew where the outdoor pool was located and asked them to come with him and show him. When one of the girls said "no," the defendant then asked the girls their names, and if they wanted to see something pretty. The girls then ran back to their rooms.²

The Commonwealth also introduced the testimony of a Newton police officer, who testified that the length of the hallways the girls had walked while the defendant walked behind them totalled 326 feet.

b. The library incident. The Commonwealth introduced the testimony of the mother of the girl involved. The mother testified that, around 8:30 P.M. on June 25, 1996, she and her husband took their two daughters, three and two years of age, to the Weston Public Library. As the family entered the library, the father walked the girls to the children's area and then proceeded to another nearby area. As the mother walked into the children's area moments later, she saw only her younger daughter, and then she heard her older daughter crying from a nearby crafts area. When she entered that area, she saw her older daughter with her back against the wall; the defendant was facing her daughter, squatting or half-kneeling, and his hands, with a towel stretched between them, were about six inches from the girl.³ As the mother picked up her daughter, who was crying, the defendant said that the girl had been about to fall, that he had tried to prevent it, but that she had fallen anyway. The defendant then left the area. When the mother asked her daughter why she had gone into the room with the defendant, the daughter said that "he told me come to see the rabbit inside ... and I went with him to see the rabbit, but there is no rabbit." The daughter also told her mother that she had not fallen down.

The Commonwealth also introduced the testimony of two librarians who were on duty the night of the incident. One of the librarians, who was assigned to the children's area, testified that she observed the defendant initially enter that area between 7:30 and 7:45 P.M., that he appeared to be agitated, going from point to point, and that he entered the children's area at least six times that evening. The librarian also testified that she had two conversations with the defendant. During the first conversation, the defendant told the librarian that he was meeting his girl friend there, and that he was looking for her. During the second conversation, the librarian suggested to the defendant, because he appeared very nervous, that he try to telephone his girl friend or that he read some magazines. The defendant replied that he had already tried to reach his girl friend.

c. The judge's statements. After a brief recess at the close of the evidence, the judge orally issued rulings of law and findings of facts, which are set out in the margin.⁴

2. Analysis. The defendant first argues that the judge erred by stating that the definition of assault included "an attempt to do psychological harm." The defendant also contends that the Commonwealth failed to provide sufficient evidence, relative to either the hotel or the library incident, that the defendant committed an assault and that he did so with the intent to kidnap.⁵

a. Definition of assault. Under the common law, an assault may be accomplished in one of two ways — either by an attempted battery, or by putting another in fear of an immediately threatened battery. See, e.g., Commonwealth v. Burke, 390 Mass. 480, 482 (1983); Commonwealth v. Richards, 363 Mass. 299, 302-303 (1973); Commonwealth v. Slaney, 345 Mass. 135, 140 (1962); G. L. c. 265, § 13A (prescribing penalty for, but not defining elements of, assault). See also Commonwealth v. Burke, supra (criminal battery is harmful or offensive touching). Thus, an assault is defined as either an attempt to use physical force on another, or as a threat of use of physical force. See Commonwealth v. Shaffer, 367 Mass. 508, 515 (1975) ("definition of assault is an attempt or threat to do bodily harm"). In the case of an attempted battery type of assault, although the Commonwealth must prove that the defendant attempted to do bodily harm, there is no requirement that the victim be aware of the attempt or be put in fear by it. See, e.g., Commonwealth v. Richards, supra at 303, citing Commonwealth v. Slaney, supra at 138-139. In the case of a threatened battery type of assault, the Commonwealth must prove that the defendant engaged in "objectively menacing" conduct with the intent to put the victim in fear of immediate bodily harm. Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995),S.C., 421 Mass. 610 (1996), quoting Commonwealth v. Marcotte, 18 Mass. App. Ct. 391, 394 (1984). See Commonwealth v. Delgado, 367 Mass. 432, 437 (1975) ("it is well established in this State that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault"); Commonwealth v. White, 110 Mass. 407, 409 (1872).

During the trial, while ruling on the defendant's initial motion for required findings of not guilty, the judge correctly stated that "an assault ... is defined as a communicated threat, that is, a communicated intent to use some kind of force on the person of another." This statement reasonably conforms to the immediately threatened battery type of assault. However, in announcing his decision after the trial, the judge enunciated a different standard, stating that the definition of assault was an attempt to do harm and included "an attempt to do psychological harm." The judge did not further define psychological harm.

As our previous discussion and case law make clear, the central aspect of an assault is an attempted application of physical force or a threat of the use of physical force, either by an attempt to do bodily harm, or by placing the victim in fear of imminent bodily harm.⁶ Under the attempted battery prong of assault, we have not recognized an attempt to inflict psychological harm as an assault and, in fact, the victim's apprehension of, or fear created by, the attempt is immaterial to whether an assault has occurred. Under the immediately threatened battery category, what is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear or some other unspecified psychological harm in the victim. Although the judge initially correctly stated, at least in part, the definition of assault, the judge also subsequently incorrectly expanded the definition, and we are therefore unable to ascertain whether the judge applied a correct or incorrect definition of assault.⁷ Because the judge may have applied a misconception of an essential element of the crime charged, there is a substantial risk that a miscarriage of justice has occurred⁸ and the convictions must be reversed. See Wilson v. United States, 250 F.2d 312, 324 (9th Cir. 1957) (no difference between judge incorrectly instructing jury as to applicable law and in effect incorrectly...