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Commonwealth v. Rogers

Appeals Court of Massachusetts, Barnstable

December 31, 2019

COMMONWEALTH
v.
KARY M. ROGERS.

          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.

          Laura Marshard, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Lemire, & Shin, JJ.

          LEMIRE, J.

         Following 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.

         Background.

         We summarize the facts the jury could have found. On April 24, 2018, the defendant and the victim were at their home in Bourne.[1] 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.[2] 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.

         Upon 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.[3]

         Discussion.

         1. Sufficiency of evidence.

         The 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.) .[4] 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.

         On a 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 ...


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