Heard: March 1, 2018.
received and sworn to in the Marlborough Division of the
District Court Department on January 8 and 14, 2015.
cases were tried before Michael L. Fabbri, J.
S. Arter for the defendant.
Lindsay Russell, Assistant District Attorney, for the
Present: Green, C.J., Sacks, & Shin, JJ.
convicted the defendant of assault and battery causing bodily
injury on a person sixty years of age or older, in violation
of G. L. c. 265, § 13K(b), and larceny of property with
a value exceeding $250 from a person sixty years of age or
older, in violation of G. L. c. 266, § 30(5). On appeal
she argues that the Commonwealth failed to prove that the
victim suffered a "bodily injury" within the
meaning of G. L. c. 265, § 13K(b), that her larceny
conviction cannot stand because the Commonwealth failed to
disprove her claim of honest yet mistaken belief, that the
prosecutor misstated the evidence in his closing argument,
and that her trial counsel was ineffective. Construing the
term "bodily injury," defined in G. L. c. 265,
§ 13K(a.), as an injury that considerably or
significantly compromises the usual functioning of any part
of a victim's body, we conclude that the evidence was
sufficient to support the defendant's conviction under
§ 13K(b). As we also reject the defendant's
remaining arguments, we affirm.
summarize the evidence and the reasonable inferences
therefrom in the light most favorable to the Commonwealth.
See Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). The victim was born in 1936 and
met the defendant in 2007. Their relationship started as a
romantic one but evolved into "a friendship type
thing." Throughout the course of their relationship, the
defendant often stayed at the victim's home, sometimes up
to a week at a time.
November of 2013 to January of 2015, the victim noticed that
there were unauthorized withdrawals and other transactions on
each of his monthly debit card statements. In total, the
unauthorized charges amounted to several thousand dollars.
The victim had not given the defendant permission to use his
card during this period and questioned her multiple times about
the charges, telling her that he "was getting behind on
his bills." Each time, the defendant admitted using the
card but said that she did so only after checking the account
balance to ensure that enough funds were available.
December 12, 2014, while at the defendant's apartment,
the victim again questioned her about the money missing from
his account. As the victim was preparing to leave, the
defendant "blindsided" him and hit him from behind
with a "tremendous . . . blow," causing him to fall
to the hardwood floor. The victim "was in great
pain" and felt "a burning sensation in the lower
back and . . . hip area." He spent two to three hours at
the hospital, where he was diagnosed with an elbow abrasion
and hip contusion and was prescribed pain medication.
Although hospital staff wanted him to use a walker, the
victim declined because he wanted to stay as "mobile as
[he] possibly could."
to late December of 2014, the victim's neighbor observed
that he "seemed to be deteriorating as far as
walking"; he "was limping a lot," "seemed
to be in a lot of pain," and "would take . . .
about [fifteen] minutes to get up [a twenty- foot]
driveway." According to the neighbor, the victim did not
exhibit these symptoms during the first half of the month. An
officer investigating the incident in late December of 2014
likewise observed that the victim "was very slow, had a
limp, [and] looked like he was injured." Ultimately, it
took several weeks before the victim's pain subsided and
he started regaining mobility on his injured side.