Instruction 6.180, Criminal Model Jury Instructions for Use in the District Court

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

ASSAULT AND BATTERY ON A PERSON

PROTECTED BY AN ABUSE PREVENTION ORDER

G.L. c. 265, § 13A(b)(iii)

The defendant is charged with having committed an assault and

battery on a person protected by an abuse prevention order.

I. INTENTIONAL ASSAULT AND BATTERY

In order to prove the defendant guilty of committing an

intentional assault and battery on a person protected by an abuse

prevention order, the Commonwealth must prove six things beyond a

reasonable doubt:

First: That the defendant touched the person of [the alleged

victim] ;

Second: That the defendant intended to touch [the alleged

victim] ;

Third: That the touching was either likely to cause bodily

harm to [the alleged victim] , or was offensive; and

Fourth: That a court had issued an order (or) (a judgment)

pursuant to chapter 209A of our General Laws

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

against the defendant ordering (him) (her): (to

[vacate] [and] [stay away from] particular premises)

(or) (to stay a certain distance away from [the alleged

victim] ) (or) (not to contact [the alleged victim] ) (or) (not

to abuse [the alleged victim] );

Fifth: That the order was in effect at the time of the alleged

assault and battery; and

Sixth: That the defendant knew that the pertinent term(s) of

the order (was) (were) in effect.

To prove that the defendant had knowledge of the order’s terms,

there must be proof that the defendant received a copy of the order or

learned of it in some other way.

Commonwealth v. Welch, 58 Mass. App. Ct. 408 (2003).

To prove the first element, the Commonwealth must prove the

defendant touched [the alleged victim] . A touching is any physical

contact, however slight.

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

If the touching was indirect. A touching may be direct as when a

person strikes another, or it may be indirect as when a

person sets in motion some force or instrumentality that

strikes another.

To prove the second element, the Commonwealth must prove

that the defendant intended to touch [the alleged victim] , in the

sense that the defendant consciously and deliberately intended the

touching to occur, and that the touching was not merely accidental or

negligent.

If additional language on intent is appropriate. The Commonwealth

is not required to prove that the defendant specifically

intended to cause injury to [the alleged victim] .

Where there is evidence that the touching may be justified by a legally recognized “right”

or “excuse,” the jury should be instructed with the specific “right” or “excuse” instructions

(e.g., accident (9.100); necessity (9.240); self-defense (9.260). See Commonwealth v.

Wood, 90 Mass. App. Ct. 271, 286-86 (2016) (where evidence did not raise a claim of right

or excuse, the jury need not consider whether the touching was without right or excuse);

Commonwealth v. Conley, 34 Mass. App. Ct. 50, 58 (1993) (where no evidence of self-defense, jury need not be instructed that right or excuse may justify the touching).

To prove the third element, the Commonwealth must prove

that the touching was either likely to cause bodily harm to [the

alleged victim] , or was offensive. A touching is offensive when

it is without consent.

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

Commonwealth v. Burke, 390 Mass. 480, 484 (1983) (in a prosecution for a nonharmful

battery, the Commonwealth must prove that the touching was nonconsensual);

Commonwealth v. Colon, 81 Mass. App. Ct. 8 (offensive battery requires proof that the

defendant intentionally touched the victim and that the touching, however slight, occurred

without the victim’s consent); Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 477

(2008) (“what makes the touching offensive is not that it is an affront to the victim's personal

integrity as the defendant posits, but only that the victim did not consent to it. Nothing more

is required.”)

The model instruction does not separately define assault, since “[e]very battery includes

an assault” as a lesser included offense. Commonwealth v. Burke, 390 Mass. 480, 482

(1983); see Commonwealth v. Porro, 458 Mass. 526, 533-35 (2010). If the evidence would

also permit a jury finding of simple assault, the jury should be instructed on lesser included

offenses (Instruction 2.280), followed by Instruction 6.120 (Assault), beginning with the

second paragraph.

Commonwealth v. Ford, 424 Mass. 709, 711 (1997) (assault and battery is a general intent

crime and does not require specific intent to injure the victim, but its intentional branch

requires an intentional touching, and not merely an intentional act resulting in a touching);

Burke, 390 Mass. at 482-83, 487 (any touching likely to cause bodily harm is a battery

regardless of consent, but an offensive but nonharmful battery requires lack of consent or

inability to consent); Commonwealth v. McCan, 277 Mass. 199, 203 (1931) (“An assault

and battery is the intentional and unjustified use of force upon the person of another,

however slight, or the intentional doing of a wanton or grossly negligent act causing

personal injury to another”); accord Commonwealth v. Bianco, 390 Mass. 254, 263 (1983)

(same); Commonwealth v. Campbell, 352 Mass. 387, 397 (1967) (same); Commonwealth

v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995) (approving instruction for threatened-

battery branch of assault that “when we say intentionally we mean that [defendant] did so

consciously and voluntarily and not by accident, inadvertence or mistake”), aff’d, 421 Mass.

610 (1996); Commonwealth v. Moore, 36 Mass. App. Ct. 455, 457-60 (1994) (intentional

branch of assault and battery requires proof “that the defendant intended that a touching

occur” and not merely “proof that the defendant did some intentional act, the result of which

was a touching of the victim”); Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 584

(1991) (intentional branch of assault and battery requires proof “that the defendant’s

conduct was intentional, in the sense that it did not happen accidentally”); see

Commonwealth v. Bianco, 388 Mass. 358, 366-367 (1983) (assault and battery by joint

venture); Commonwealth v. Collberg, 119 Mass. 350, 353 (1876) (mutual consent is no

defense to cross-complaints of assault and battery; “such license is void, because it is

against the law”).

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

II. RECKLESS ASSAULT AND BATTERY

A. If intentional assault and battery was already charged on. There is a

second way in which a person may be guilty of an assault and battery.

Instead of intentional conduct, it involves reckless conduct that

results in bodily injury.

B. If intentional assault and battery was not already charged on. The

defendant is charged with having committed an assault and battery

by reckless conduct upon a person protected by an abuse prevention

order.

In order to prove the defendant guilty of having committed an

assault and battery by reckless conduct on a person protected by an

abuse prevention order, the Commonwealth must prove five things

beyond a reasonable doubt:

First: That the defendant intentionally engaged in actions

which caused bodily injury to [the alleged victim] ;

Second: That the defendant’s actions amounted to reckless

conduct; and

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

Third: That a court had issued an order (or) (a judgment)

pursuant to chapter 209A of our General Laws

against the defendant ordering (him) (her): (to

[vacate] [and] [stay away from] particular premises)

(or) (to stay a certain distance away from [the alleged

victim] ) (or) (not to contact [the alleged victim] ) (or) (not

to abuse [the alleged victim] );

Fourth: That the order was in effect at the time of the alleged

assault and battery; and

Fifth: That the defendant knew that the pertinent term(s) of

the order (was) (were) in effect.

To prove the first element, the Commonwealth must prove that

the defendant intended (his) (her) acts which resulted in the touching,

in the sense that the defendant consciously and deliberately intended

the act or acts to occur and that the act or acts did not happen

accidentally.

The Commonwealth must also prove that the defendant’s acts

caused bodily injury to [the alleged victim] . Under the law, a bodily

injury must be sufficiently serious to interfere with the alleged

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

victim’s health or comfort. It need not be permanent, but it must be

more than trifling. For example, an act that only shakes up a person

or causes only momentary discomfort would not be sufficient.

To prove the second element, the Commonwealth must prove

the defendant acted recklessly. It is not enough for the

Commonwealth to prove that the defendant acted negligently – that is,

acted in a way that a reasonably careful person would not. It must be

shown that the defendant’s actions went beyond mere negligence and

amounted to recklessness. The defendant acted recklessly if (he)

(she) knew, or should have known, that such actions were very likely

to cause substantial harm to someone, but (he) (she) ran that risk and

went ahead anyway.

But it is not necessary that (he) (she) intended to injure or strike

the alleged victim, or that (he) (she) foresaw the harm that resulted. If

the defendant actually realized in advance that (his) (her) conduct was

very likely to cause substantial harm and decided to run that risk,

such conduct would of course be reckless. But even if (he) (she) was

not conscious of the serious danger that was inherent in such

conduct, it is still reckless conduct if a reasonable person, under the

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

circumstances as they were known to the defendant, would have

recognized that such actions were so dangerous that it was very

likely that they would result in substantial injury.

Commonwealth v. Correia, 50 Mass. App. Ct. 455, 457-58 (2000) (statute prohibiting

assault and battery sets forth the common law crime which includes both intentional and

reckless forms of the crime). Commonwealth v. Burno, 396 Mass. 622, 625-627 (1986)

(“the intentional commission of a wanton or reckless act (something more than gross

negligence) causing physical or bodily injury to another”; injury must have “interfered with

the health or comfort of the victim. It need not have been permanent, but it must have

been more than transient and trifling. For example, if an alleged victim were shaken up

but by his own admission not injured, or if an alleged victim were to have a sore wrist for

only a few minutes, the ‘injury’ in each instance would be transient and trifling at most.”)

(citation omitted); Commonwealth v. Welch, 16 Mass. App. Ct. 271, 273-77, rev. denied,

390 Mass. 1102 (1983) (“The law recognizes. . . an alternative form of assault and battery

in which proof of a wilful, wanton and reckless act which results in personal injury to another

substitutes for. . . intentional conduct”; elements are [1] that the act involved a high degree

of likelihood that substantial harm would result to another, and [2] that the victim suffered

physical injury as a result of that act). See also Commonwealth v. Grey, 399 Mass. 469,

472 n.4 (1987) (“ ‘The standard of wanton or reckless conduct is at once subjective and

objective’ . . . . It depends on what the defendant knew (subjective) and how a reasonable

person would have acted (objective) knowing those facts.”) (quoting Commonwealth v.

Welansky, 316 Mass. 383, 398 (1944)); Commonwealth v. Godin, 374 Mass. 120, 129

(1977) (standard “is at once both a subjective and objective standard, and is based in part

on the knowledge of facts which would cause a reasonable man to know that a danger of

serious harm exists. Such knowledge has its roots in experience, logic, and common

sense, as well as in formal legal standards.”); Commonwealth v. Welansky, 316 Mass. 383,

399 (1944) (“Wanton or reckless conduct amounts to what has been variously described

as indifference to or disregard of probable consequences”).

A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

SUPPLEMENTAL INSTRUCTIONS

Victim injured while escaping. The defendant may be convicted of

assault and battery if the Commonwealth has proved beyond a

reasonable doubt that the defendant caused [the alleged victim]

reasonably to fear an immediate attack from the defendant, which

then led (him) (her) to try to (escape) (or) (defend) (himself)

(herself) from the defendant, and in doing so injured (himself)

(herself).

Commonwealth v. Parker, 25 Mass. App. Ct. 727, 731, 734,

rev. denied, 402 Mass. 1104 (1988)