MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant guilty of: 1) assault and battery on a public employee, and 2) assault and battery (as a lesser included offense of assault and battery by means of a dangerous weapon). For the reasons that follow, we vacate the convictions.
1
Background. On March 12, 2021, the defendant took a drivers test administered by a State road test examiner (examiner). Because this was during the COVID-19 pandemic, the test was conducted in a State-owned car. After he was informed that he failed the test, the defendant left the car in anger, taking the keys with him. According to the testimony of the examiner, the defendant returned the keys by throwing them through the cars open window, striking the examiner in the face. The examiner described it as a hard throw, “like a baseball throw.” Although the examiner testified that this “stung pretty good,” he stated that the keys struck him with what “seemed to be a low impact” and did not cause any physical injury.
2
The defendant testified in his own defense. He admitted that he returned the keys by tossing them through the cars window, but he denied that he threw them hard at the examiners face. Instead, according to him, he simply “tossed the keys into the car, towards the dashboard.” In his closing argument, the prosecutor offered to the jury the possibility that the keys had struck the examiner in the face after ricocheting off the dashboard. Other details regarding the prosecutors closing are reserved for later discussion.
Discussion. “Under the common law, there are two theories of assault and battery: intentional battery and reckless battery.” Commonwealth v. Porro, 458 Mass. 526, 529 (2010). “An intentional assault and battery is the intentional and unjustified use of force upon the person of another, however slight” (quotation and citation omitted). Id. “A reckless assault and battery is committed when an individual engages in reckless conduct that results in a touching producing physical injury to another person.” Id.
As the Commonwealth now concedes, because there was no evidence that the examiner suffered any physical injury, the evidence could not sustain a conviction based on a theory of reckless battery. Nevertheless, the case was presented to the jury on both theories, and the prosecutor sought to exploit this in his closing argument. In direct response to the defense counsels closing argument that the Commonwealth failed to prove beyond a reasonable doubt that the defendant intended to strike the examiner with the keys, the prosecutor argued that the Commonwealth did not have to prove such intent under a reckless theory of battery. The prosecutor proceeded to argue that the throwing of the keys was reckless and then stated that “[t]he Commonwealth doesnt have to prove anything about injury.” In reviewing the elements of the assault and battery by means of a dangerous weapon charge, the prosecutor repeated that the Commonwealth did not have to prove that the examiner was injured. Thus, the prosecutor informed the jury that they could convict the defendant without the Commonwealths having to prove either that the defendant intended to strike the examiner with the keys or that the examiner was injured. In this manner, a “defining element of the crime[s] was misstated,” and the “prosecutors argument expressly invited the jury to proceed under the erroneous definition.” See Commonwealth v. Azar, 435 Mass. 675, 689 (2002).
The Commonwealth acknowledges that the prosecutor misstated the law in a material manner, but argues that the error did not cause a substantial risk of a miscarriage of justice. It points out that, unlike in Azar, the judges instructions to the jury here were accurate. See Commonwealth v. Horn, 23 Mass. App. Ct. 319, 325 (1987) (harm to defendant resulting from prosecutors misstatement of law cured by judges instructions). The flaw in this argument is that the case should not have gone to the jury on a theory of reckless battery where the evidence did not support it. Thus, although the instructions as to each theory were accurate, it was error for the judge to instruct the jury as to reckless battery. This instructional error compounded the prosecutors misstatement of the law. In sum, we are not at all confident that the jury would have found the defendant guilty had the closing argument and instructions been proper.
3
We briefly address an additional argument that the defendant has raised. The Commonwealth filed a pretrial motion in limine seeking permission to allow the examiner to identify the defendant in court as the person who threw the keys at him. See Commonwealth v. Crayton, 470 Mass. 228, 243 (2014). A judge who was not the trial judge allowed the motion. Analogizing this case to Commonwealth v. Fielding, 94 Mass. App. Ct. 718, 723 (2019), the motion judge concluded that, based on the examiners opportunity to review the defendants learners permit and license application prior to the test and to observe the defendant during and after the test, “good reason exists to admit the in-court ID” (without the pretrial identification procedures discussed in Crayton having been followed). According to the defendant, the examiners in-court identification was not simply “confirmatory” and was based “on his ․ memory of witnessing the defendant at the time of,” or during the events immediately preceding, the alleged crime. Crayton, 470 Mass. at 242-243. The defendant argues that this case is not at all like Commonwealth v. Fielding in which the eyewitness had an extended opportunity to study the defendants face in the intimate one-on-one setting of a hot tub and sauna before the events leading up to the crime. See Fielding, 94 Mass. App. Ct. at 719, 723.
Because the examiners in-court identification of the defendant was the only evidence that the Commonwealth presented identifying the defendant as the one who threw the keys, the defendant further maintains that he is entitled not only to a new trial, but also to a judgment of acquittal. This is plainly incorrect. A judgment of acquittal is warranted only where the evidence was insufficient, and the insufficiency of the evidence “is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.” Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). Because there appear to be other available means through which the Commonwealth could have sought to prove the defendants identity, and because the defendant has raised nontrivial concerns about the propriety of allowing the in-court identification, we consider it unlikely that the Crayton issue will arise again in any retrial (should the Commonwealth choose to pursue one). We therefore do not reach the issue whether the judge erred in allowing the Commonwealths motion in limine.
The judgments are vacated, and the verdicts are set aside.
So ordered.
FOOTNOTES
1
. As the Commonwealth concedes, the conviction for simple assault and battery is duplicative of the one for assault and battery on a public employee. Because we are vacating both convictions, however, it is not at this time duplicative. We leave it to the Commonwealths discretion whether to seek retrial of one or both charges, while noting that the defendant could be convicted of only one.
2
. The examiner specifically confirmed that the keys caused no “bleeding,” “marks,” “cuts,” “redness,” “scrapes,” “abrasions,” or “swelling.”
3
. To be clear, we are not holding that the defendant automatically is entitled to a new trial on the ground that the case went to the jury on two distinct theories, the evidence was insufficient to support one of those theories, and the general verdict prevents us from knowing on which theory the jury relied. Compare Commonwealth v. Plunkett, 422 Mass. 634, 639-640 (1996), with Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 264 (2020). We do not reach this issue.