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) references at trial that he had a drug problem and had been in jail required a mistrial and (2) the evidence was insufficient to sustain his guilt. We affirm.
Background. As she was driving through the streets of Worcester during her midnight shift patrol, a Massachusetts State police trooper saw the defendant and victim on a sidewalk; the victim was on the ground as the defendant was punching her in the head. As the trooper got out of her car to approach, the defendant helped the victim up and put his arm around her, and the two began to walk away as the defendant said to the victim, “[C]alm down and relax.” The trooper stopped them and then saw that the victim had blood on the left side of her head -- on her hair, ear, and neck -- and on her shirt. The trooper attempted to speak with the victim, who appeared “hysterical.” The victim stated that the defendant was her boyfriend, that he had not hit her, but that she had been attacked earlier by an unknown person.
Discussion. 1. Prejudicial evidence. In response to the prosecutors questions directed at the relationship between the defendant and victim, and specifically whether they had ever lived together, the victim gave a summary of the various places they had lived during their year and one-half relationship and the reasons for their moves, adding the following: “Unfortunately, there is history of drug abuse and there [were] relapses occurring.” The defendants objection was overruled, and the prosecutor summed up by asking whether it was fair to say that the relationship was serious. The victim agreed. The prosecutor then directed the victim to testify concerning the offense.
Later, the prosecutor attempted to establish the status of the relationship at the time of trial by asking whether they were currently dating. The victim responded, “I mean I havent seen him in months. I havent seen him since he went to jail․ The jail wouldnt let me see him.” The defendant objected, and the judge struck the evidence, instructing the jury to disregard the victims statement. After consulting with counsel, the judge gave a curative instruction and asked if any of the jurors would have difficulty remaining impartial. None responded. In the final jury charge, the judge instructed that the jurors were not to speculate and that struck evidence was to be disregarded.
On appeal, the defendant contends that the victims references to “drug abuse” and “jail” were unduly prejudicial. As the defendant objected, we review for prejudicial error. See Commonwealth v. DePina, 476 Mass. 614, 624 (2017). As the judge noted, the drug abuse comment was an incomplete and vague reference that did not attribute the problem to the defendant in particular. Moreover, the prosecutor immediately moved on to another topic, and the comment was never referenced again at trial. As the judge also noted, the jail comment was “unfortunate.” Nevertheless, the judge took prompt action in immediately telling the jury to disregard the statement, following up with a curative instruction, and finally inquiring of the jury as to any potential impact. We presume the jury followed the judges instructions. See Commonwealth v. Durand, 475 Mass. 657, 668 (2016) (judge entitled to rely on curative instruction to correct errors and remedy prejudice).
The defendant nevertheless argues that a mistrial was required due to the cumulative effect of the victims statements and that his counsels failure to request a mistrial deprived him of his right to the effective assistance of counsel. Where the drug abuse comment was fragmented and isolated and the jail comment was struck, however, we conclude that the judges instructions in the final charge, not to speculate and to disregard struck evidence, adequately cured any prejudice and that a mistrial was not required; it follows therefore that counsel was not ineffective in failing to request a mistrial. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002) (after witness testified that defendant just got out of jail, request for mistrial properly denied where judge immediately struck testimony and jury were instructed, at outset of trial and in final charge, to disregard struck testimony); Commonwealth v. Melkebeke, 48 Mass. App. Ct. 364, 367 (1999) (testimony that defendant had been in jail did not require mistrial where judge gave curative instruction).
2. Sufficiency of evidence. The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt that the defendant assaulted the victim because the evidence suggested “equally plausible” scenarios as to who assaulted the victim, the defendant or an unknown attacker. Since the evidence was equally consistent with guilt as it was with innocence, the defendant argues, neither proposition could be said to have been established by legitimate proof. See, e.g., Commonwealth v. Croft, 345 Mass. 143, 145 (1962).
As the defendant acknowledges, 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, 345 Mass. at 145. Here, no conjecture was required for the jury (crediting the troopers direct testimony concerning the defendants assault on the victim), to conclude that the defendant committed the crime. The fact that “contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty.” Tavares, supra at 657 n.13, quoting Commonwealth v. Merry, 453 Mass. 653, 662 (2009).
The defendant additionally argues that the evidence was insufficient to prove that he and the victim were family or household members, as required. See G. L. c. 265, § 13M (a). See also Commonwealth v. Dustin, 476 Mass. 1003, 1004-1005 (2016) (in addition to proving that defendant committed assault and battery on victim, Commonwealth had to prove that defendant and victim were family or household members). “[F]amily or household member” is defined as “persons who (i) are or were married to one another, (ii) have a child in common regardless of whether they have ever married or lived together or (iii) are or have been in a substantive dating or engagement relationship.” G. L. c. 265, § 13M (c). Here, the victim testified that she had been in a “serious” relationship with the defendant for about a year and one-half, that they became “inseparable” soon after meeting, that they began living together a couple of weeks after they met, and that they continued living together in various places. Additionally, the trooper testified that the victim told her, on the date of the offense, that the defendant was her boyfriend. See, e.g., Dustin, supra at 1006 (testimony that parties were in “boyfriend-girlfriend” relationship established substantive dating relationship). The evidence was sufficient to establish that the parties were “family or household members” as that term is defined in the statute.
Judgment affirmed.