MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of assault and battery on a family or household member in violation of G. L. c. 265, § 13M (a). The defendant appeals, arguing that (1) there was insufficient evidence to establish that he assaulted the victim and (2) the prosecutor, in his closing argument, improperly commented on the defendants failure to testify. We affirm.
Background. The victim, who was the defendants ex-girlfriend and the mother of their child, had her car towed to the defendants residence in Ashfield in order to get it repaired. The victim and child stayed at the defendants home for five or six days while the defendant worked on the victims vehicle. On the last morning, the defendant woke the victim up, “angry and upset,” and informed her that the child had wet the bed. After changing the child, the victim got up to use the bathroom while the defendant went outside to collect rainwater to refill the toilet. The defendant then came “bolting” into the bathroom, splashed the victim with the bucket of cold water, and grabbed ahold of both of her wrists. The defendant restrained the victim for about five minutes, despite her yelling, “Let me go,” and then slapped her across the face. The victim was able to get out of the bathroom only after she kneed the defendant in the groin and slapped him in the face. The victim contacted a friend, who came and picked up the victim and child.
The victim called the police and met with the Ashfield police chief around 9 p.m. that same day. The chief and other officers then visited the defendants residence and told him that they were there because of the victim and “what had happened earlier in the day.” The chief asked the defendant if he knew why she was there, to which he replied, “Yes.” The defendant was then placed under arrest.
Discussion. 1. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt that the defendant assaulted the victim because the Commonwealths case consisted only of the victims testimony, which was uncorroborated and contradictory.
As a preliminary matter, we note that the defendant did not move for a required finding of not guilty. However, “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001), quoting Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We therefore consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
To sustain a conviction for assault and battery on a family or household member, the Commonwealth must prove that (1) the defendant intentionally touched the victim, (2) the touching was likely to cause bodily harm or was offensive, and (3) the defendant and victim were family or household members at the time of the offense. See G. L. c. 265, § 13M (a). See also Commonwealth v. Dustin, 476 Mass. 1003, 1004-1005 (2016). There is no contention on appeal that the victim and defendant were not household or family members. See G. L. c. 265, § 13M (c) (ii). As to the remaining elements, the victim testified that the defendant splashed a bucket of water on her, grabbed and held her wrists forcefully, and slapped her across the face. The defendant does not dispute that this evidence, if accepted by the jury, makes out the first two elements, which constitute assault and battery. See G. L. c. 265, § 13M (a). See also Instruction 6.275 of the Criminal Model Jury Instructions for Use in the District Court (2019).
Rather, the defendants argument is that the jury would not have been warranted in crediting the victims testimony given (1) the lack of any corroboration of the victims physical injuries where some would be expected
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and (2) the victims actions which were at odds with an assault having occurred, including going back into the house after the assault and the delay in reporting to the police.
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The defendants contentions essentially concern the weight and credibility of the evidence, “a matter wholly within the province of the jury” (citation omitted). Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The jury were entitled to credit the victims testimony.
The defendant nevertheless argues that the evidence was equally consistent with guilt as it was with innocence such that neither proposition could be said to have been established by legitimate proof. See, e.g., Commonwealth v. Croft, 345 Mass. 143, 145 (1962). However, “[t]his principle applies only in circumstances in which, even viewing the evidence in the light most favorable to the Commonwealth, ‘choosing among the possible inferences from the evidence presented,’ would require a jury ‘to employ conjecture.’ ” Commonwealth v. Tavares, 484 Mass. 650, 655 (2020) quoting Croft, supra at 145. Here, no conjecture was required for the jury (crediting the victims direct testimony concerning the defendants assault on her), to conclude that the defendant had committed the crime. See Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 78 n.3 (2005) (victims testimony alone provided sufficient direct evidence to prove crime); Commonwealth v. Gonsalves, 23 Mass. App. Ct. 184, 185 (1986) (victims account of what defendant did was sufficient to overcome defendants motion for required finding of not guilty). The evidence was sufficient to support the verdict.
2. Closing argument. The defendant also argues that the prosecutors closing argument improperly referenced the defendants failure to testify by noting that the jury did not hear “two stories,” as defense counsel had promised.
“Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judges instructions to the jury.” Commonwealth v. Felder, 455 Mass. 359, 368 (2009). “A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses.” Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), quoting Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The prosecutor is entitled to respond to the defendants argument and to comment on the strength of its case and weakness of the defense, “as long as [the] argument is directed at the defendants defense and not at the defendants failure to testify.” Commonwealth v. Garvin, 456 Mass. 778, 799 (2010).
Defense counsel objected to the statements made by the prosecutor immediately following closing argument, and thus we review for prejudicial error. See Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). That is, “if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected” (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Here, the prosecutors comments during closing argument were directly related to the defenses opening statement. See, e.g., Commonwealth v. Tavares, 27 Mass. App. Ct. 637, 644 (1989) (defense counsel in closing argument claimed that prosecution did not “follow up” defendants claims; in response, prosecutor properly corrected what he considered to be erroneous impression created by defense counsel). The prosecutor noted the following:
“[The jury were] told at opening that there were going to be two stories, there were not. There was [the victims] testimony, thats the evidence, her testimony is the evidence. She was asked on my direct what happened, she was asked repeatedly on cross what happened, it was consistent the entire time.”
Viewed in context, the prosecutors closing argument was based on the premise that the victim was consistent in her testimony -- contrary to defense counsels contention that the jury would hear “two different stories.”
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Nonetheless, the trial judge instructed the jury regarding the defendants right not to testify, dispelling even a remote inference that the comment touched on the defendants right not to testify. See, e.g., Commonwealth v. Nelson, 468 Mass. 1, 13 (2014). We discern no prejudicial error.
Judgment affirmed.
FOOTNOTES
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. Although the police chief testified that any bruising probably would have started to show twelve hours after the assault (the time frame between the defendants assault on the victim and the chiefs examination of the victim), she also testified that in her experience physical assaults do not always result in bruising.
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. The victim testified that she ran back into the house to retrieve her belongings and that she waited to report the incident until after she got her child to school, made arrangements to retrieve her car and get it repaired, and attended a support meeting.
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. In response to the defendants objection, the judge stated, “I think thats true in all cases, [having] two stories doesnt require [the defendant] to testify. It could be the second version thats elicited under cross-examination. He was commenting that the story was consistent.”