MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a jury in the District Court of assault and battery by means of a dangerous weapon. The charge was based on the defendants kicking a hospital technician in the stomach with his shod foot. On appeal, the defendant argues that the judge erred in denying his motion for a required finding of not guilty because the jury could not have properly found that his shod foot was used as a dangerous weapon. He also argues that the prosecutor crossed the boundary of proper argument several times during his closing remarks. We affirm.
Background. Because the defendant has raised the issue of the sufficiency of evidence, we summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On December 10, 2018, Nicole Raymond was working as an emergency room technician at the UMass Memorial Medical Center in Worcester. At approximately 4 a.m., the defendant arrived at the hospital by ambulance. He was intoxicated and acting irrationally. As a result, he was medicated and restrained. An attending physician ordered a CAT scan and one of the nurses transported the defendant to a room where such scans are conducted. Soon thereafter, Raymond heard the nurse calling for help. Raymond responded, and when she entered the room, she saw the defendant standing in a “fighting stance.” Raymond believed that the defendant was about to strike the CAT scan technician. The nurse attempted to calm the defendant to no avail. UMASS police officer Kevin Monaghan, who happened to be passing by in the hallway, entered the room and rendered assistance by physically subduing the defendant until additional officers arrived.
Ultimately, it required several officers to restrain the defendant and put him on a stretcher. While the officers were placing restraints on the defendants arms, Raymond went to the foot of the stretcher to restrain the defendants feet. The defendant was wearing shoes. The defendant looked Raymond in the eyes, lifted his foot, and kicked her in the stomach. Raymond testified: “[H]e clearly lifted his foot up off the stretcher and struck me in the stomach.” The kick “knocked” Raymond back and she lost her breath. The kick also caused some redness and slight bruising. Although her stomach was tender, Raymond finished her shift because, as she explained, she could not afford to miss work.
At trial, the defendant did not deny that he kicked Raymond in the stomach. Through cross-examination and argument, he claimed that he had not consented to treatment and acted in self-defense.
Discussion. 1. Sufficiency of the evidence. To sustain a conviction of assault and battery by means of a dangerous weapon, the Commonwealth must prove the following three elements: “(1) the presence of all the elements of assault, and (2) a touching, however slight, (3) by means of a dangerous weapon.” Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016).
“[T]he dangerousness of an object for the purposes of G. L. c. 265, § 15A, involves an objective inquiry focusing on ‘the nature ․ of the object as well as the way in which it is handled or controlled.’ ” Commonwealth v. Connolly, 49 Mass. App. Ct. 424, 425 (2000), quoting Commonwealth v. Appleby, 380 Mass. 296, 307 n.5 (1980). The question is “whether the object, as used by the defendant, is capable of producing serious bodily harm” (quotations and citations omitted). Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).
The defendant argues that the evidence was insufficient to sustain a conviction here because “there was no evidence that the shod foot was used in a manner that was capable of producing serious bodily harm.” This argument ignores Raymonds testimony, which, viewed in the light most favorable to the Commonwealth, permitted a rational trier of fact to conclude beyond a reasonable doubt that the defendant intentionally kicked Raymond with his foot and that he was wearing shoes at the time. This evidence was sufficient to meet the Commonwealths burden of proving that the defendant used his shod foot as a dangerous weapon. Furthermore, it matters not, as the defendant argues, that Raymond was not seriously injured. As the Commonwealth notes in its brief, a victim need not “die or suffer serious bodily harm.” Commonwealth v. Mattei, 455 Mass. 840, 845 (2010). Rather, “[t]he ‘relevant behavior’ for the offense of assault [and battery] by means of a dangerous weapon ‘is an outward demonstration of force’ and requires ‘only apparent ability to injure.’ ” Id., quoting Appleby, 380 Mass. at 305.
2. The prosecutors closing argument. The defendant contends that several of the prosecutors remarks in closing argument were improper. The defendant did not object, and, therefore, we must determine whether there was an error that created a substantial risk of miscarriage of justice. Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001). Although some of the remarks warrant criticism, after reviewing the argument as a whole and the judges instructions to the jury, see Commonwealth v. Cole, 473 Mass. 317, 333 (2015), we conclude that any error created no such risk.
First, the defendant contends that the prosecutor exceeded the bounds of proper argument when, in reference to the defendants version of events, i.e., that he acted in self-defense, the prosecutor stated:
“Today you heard about some words about consent. You heard about self-defense. Those are distractors. Those are detracting and distracting you from what issue you have before you. Did this defendant intentionally or recklessly kick Ms. Raymond? Yes, he did. And what tells you that he did? ․ All of the testimony you heard today. So, the consent and self-defense, those are distractors. Theyre red herrings. Theyre set up to distract you from looking at the elements of the crime.”
Although a prosecutor is entitled to comment upon the implausibility of a defendants theory where there is evidentiary support for such an argument, see Commonwealth v. Dirgo, 474 Mass 1012, 1014 (2016), the prosecutors remarks in this case came close to impugning the integrity of the defense. As such, the remarks were better left unsaid.
Next, the defendant contends that the prosecutor unjustifiably appealed to the sympathy of the jury by describing the defendant as “belligerent,” “drunk,” “violent,” and “assaultive” to the people trying to help him while at the same time portraying the victim as someone who “loves her job” so much that she drives all the way from Connecticut to UMass only to be “kicked in the abdomen” by a “belligerent” patient who made her “nervous” as she was simply trying to help him. A prosecutor may argue forcefully for a conviction, but he should not disparage the defendant or evoke sympathy for the victim. See Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). In sum, both negative and sympathetic characterizations should be avoided. While the prosecutors remarks came unnecessarily close to the line of improper (if they did not cross it), they did not create a substantial risk of a miscarriage of justice; we do not have “a serious doubt whether the result of the trial might have been different had [the asserted errors] not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
Judgment affirmed.