Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (Mass. App. Div. 3/29/2004), 03-P-346.
| Citation | 60 Mass. App. Ct. 723 |
| Decision Date | 29 March 2004 |
| Docket Number | No. 03-P-346.,03-P-346. |
| Parties | COMMONWEALTH <I>v.</I> KENNETH M. LOPIANO. |
| Court | Massachusetts Appellate Division |
Present: GELINAS, DUFFLY, & TRAINOR, JJ.
Assault and Battery. Idle and Disorderly Person.
The evidence at the trial of a criminal complaint was insufficient to convict the defendant of disorderly conduct, where the defendant's conduct in flailing his arms and shouting did not constitute violent or tumultuous behavior. [725-726]
At the trial of a criminal complaint charging assault and battery, any misstatement of the prosecutor in referring to the defendant's grabbing of the victim's hair and jerking her head as pulling at her neck did not create a substantial risk of a miscarriage of justice. [726-727]
COMPLAINT received and sworn to in the Haverhill Division of the District Court Department on February 12, 2002.
The case was tried before Allen G. Swan, J.
Theodore F. Riordan (Deborah Bates Riordan with him) for the defendant.
James A. Janda, Assistant District Attorney, for the Commonwealth.
The defendant appeals from convictions of assault and battery, G. L. c. 265, § 13A, and disorderly conduct, G. L. c. 272, § 53, following a jury trial. He argues that the evidence was insufficient to convict him of the disorderly conduct charge and that his motion for a required finding of not guilty should not have been denied. He also argues that the judge's instructions as to the disorderly charge were deficient and that the prosecutor made improper argument with respect to the assault and battery charge, entitling him to a new trial.
The jury could have found that in the early morning hours of February 12, 2002, at 1:45 A.M., as State police Trooper Steven
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