Heard: November 6, 2019.
Complaint received and sworn to in the Falmouth Division of
the District Court Department on April 25, 2018. The case was
tried before Christopher D. Welch, J.
William A. Korman for the defendant.
Marshard, Assistant District Attorney, for the Commonwealth.
Present: Hanlon, Lemire, & Shin, JJ.
a jury trial in the District Court, the defendant, Kary M.
Rogers, was convicted of assault and battery upon a family or
household member, in violation of G. L. c. 265, § 13M,
and of strangulation or suffocation, in violation of G. L. c.
265, § 15D. On appeal, the defendant challenges the
sufficiency of the evidence to support his conviction of
strangulation, the adequacy of the jury instruction on
strangulation, the propriety of the prosecutor's direct
examination of the victim, and the prosecutor's closing
argument. We affirm.
summarize the facts the jury could have found. On April 24,
2018, the defendant and the victim were at their home in
Bourne. At approximately 5:30 P..M., the
defendant, having consumed four or five beers and eight shots
of vodka, began arguing with the victim. During the argument,
the victim, who was seated on a couch, told the defendant
that he had had enough alcohol and that he should stop
drinking. In response, the defendant grabbed the victim by
her sweatshirt with one hand and around the neck with his
other hand. The defendant, while applying pressure to the
victim's neck, stood her up from the couch and threw her
onto the floor. While the defendant had his hand around
the victim's neck the victim felt pain and almost
"peed [her] pants." When the defendant released his
hand from her neck the victim coughed.
getting up off the floor, the victim grabbed her cell phone
(phone) and told the defendant that she was going to call the
police. The defendant knocked the phone out of the
victim's hand and slapped her on the face. The victim
then grabbed the defendant's phone from a table and
called the police to report that she had been
"assaulted." After the victim called the police,
the defendant threatened to kill her. The victim then ran
into the bathroom and called the police a second time to
report that the defendant had threatened to kill her. The
victim remained in the bathroom until the police arrived at
the house. While speaking with the victim, the police noticed
marks on her neck and scratches on her chest and took
photographs of the injuries.
Sufficiency of evidence.
defendant argues that there was insufficient evidence to
support his strangulation conviction. Strangulation is
defined as "the intentional interference of the normal
breathing or circulation of blood by applying substantial
pressure on the throat or neck of another." G. L. c.
265, § 15D (a.) . The defendant claims that the evidence
does not suggest that he touched the victim's throat or
neck, and further contends that there is no basis to conclude
that his conduct interrupted the victim's breathing.
challenge to sufficiency, we review to determine
"whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting
Jacksonv. Virginia, 443 U.S. 307,
319 (1979). "[P]roof may be made by inference, and
inferences drawn from the evidence 'need only be
reasonable and possible and need not be necessary or