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Commonwealth v. Forbes

Appeals Court of Massachusetts, Hampden

August 26, 2014

Commonwealth
v.
Timothy Forbes

Argued June 3, 2014

Indictments found and returned in the Superior Court Department on May 15, 2012.

The cases were tried before Constance M. Sweeney, J.

David Hirsch for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: Kantrowitz, Milkey, & Hanlon, JJ.

OPINION

[14 N.E.3d 349] Milkey, J.

After a jury trial in Superior Court, the defendant was convicted of one count of mayhem, G. L. c. 265, § 14 (first theory), and one count of assault and battery causing serious bodily injury, G. L. c. 265, § 13A( b )(i). The defendant makes two different arguments that the mayhem conviction is unsupported by sufficient evidence. Finding those arguments unpersuasive, we affirm that conviction. However, we vacate the conviction of 

Page 198

assault and battery causing serious bodily injury, because we agree with the defendant that it is duplicative of the mayhem conviction.

Background.

Based on the Commonwealth's evidence, the jury could have found the following facts. On March 9, 2012, the defendant attended a youth basketball tournament at the Holy Name School in Springfield. In the fifth and sixth grade championship game, a team featuring the defendant's two sons played against an opposing team coached by the victim, Jose Feliciano. The game was fairly close until both of the defendant's sons " fouled out." The opposing team went on to win by a fairly large margin.

At the end of the game, the players from both teams lined up in the middle of the court to shake hands, and the coaches lined up behind them. The defendant joined the end of the line of his sons' team. When Feliciano reached the defendant, the defendant assumed a " fighting stance" and began to kick and throw punches at him. With his hands up, Feliciano backpedalled away from the defendant, but the defendant continued to advance and throw punches. Feliciano retreated all the way to the gymnasium wall, where the defendant locked him in a " bear hug." This allowed the defendant to pin Feliciano's arms and to position his mouth near Feliciano's neck.

[14 N.E.3d 350] A group of people gathered around the men and attempted to pull the defendant off Feliciano. In particular, Feliciano's wife repeatedly hit the defendant in the head in an effort to separate him from her husband. It was at this point that Feliciano felt the defendant's teeth clamp onto his left ear and then heard a " crunching" sound as a portion of the ear was ripped off. In this manner, the defendant bit off a large piece of Feliciano's ear, later measured to be four centimeters by two and one-half centimeters. After he was finally separated from Feliciano, the defendant spat out the severed piece of ear on the floor and ran out of the gymnasium. According to Feliciano, the entire ...


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