Instruction 6.281, Criminal Model Jury Instructions for Use in the District Court

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

ASSAULT AND BATTERY ON AN ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

G.L. c. 265, § 13K(b)

The defendant is charged with having committed an assault and

battery causing bodily injury to (an elder which under our law is a

person 60 years of age or older) (a disabled person).

I. INTENTIONAL ASSAULT AND BATTERY

In order to prove the defendant guilty of committing an

intentional assault and battery causing bodily injury to (an elder

which under our law is a person 60 years of age or older) (a disabled

person), the Commonwealth must prove four 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] ;

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

Third: That the touching caused bodily injury to [the alleged

victim] ; and

Fourth: That [the alleged victim] was (an elder) (a person

with a disability) on the date of the alleged offense.

To prove the first element, the Commonwealth must prove the

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

contact, however slight.

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.

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

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 caused bodily injury to [the alleged victim] .

Under the law, a bodily injury is a substantial impairment of the

physical condition. It is an injury to any body part that

considerably or significantly compromises its usual bodily

function such as, but not limited to: (a burn) (a fracture of any

bone) (a subdural hematoma) (injury to any internal organ) (any

injury which occurs as a result of repeated harm to any bodily

function or organ, including human skin).

G.L. c. 265, § 13K(a)

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

To prove the fourth element, the Commonwealth must

prove that the [the alleged victim] was (an elder which under

our law is a person 60 years of age or older) (a person with a

disability) on the date of the alleged offense.

Definition of disability. A person with a disability is a person

with a permanent or long-term physical or mental

impairment that prevents or restricts the individual’s ability

to provide for his or her own care or protection.

G.L. c. 265, § 13K(a)

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);

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).

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.

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

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 causing bodily injury to (an elder which under

our law is a person 60 years of age or older) (a disabled person).

In order to prove the defendant guilty of having committed an

assault and battery by reckless conduct causing bodily injury to a

person (who was an elder) (with a disability), the Commonwealth must

prove three 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

Third: That [the alleged victim] was (an elder) (a person

with a disability) on the date of the alleged offense.

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

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 defendant consciously and deliberately intended the

act or acts to occur and that the act or the 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 is a substantial impairment of one’s physical

condition. It is an injury to any body part that considerably or

significantly compromises its usual bodily function such as, but

not limited to: (a burn) (a fracture of any bone) (a subdural

hematoma) (injury to any internal organ) (any injury which

occurs as a result of repeated harm to any bodily function or

organ, including human skin).

G.L. c. 265, § 13K(a). Note that this instruction differs from Instruction 6.150 (Reckless

Assault and Battery) because the definition of bodily injury by case law that is applicable

to the reckless branch of assault and battery (“a bodily injury. . . sufficiently serious to

interfere with the alleged victim’s health or comfort.” Commonwealth v. Burno, 396 Mass.

622, 625-627 (1986)), is different from the statutory definition of “bodily injury” applicable

to this offense. Under the statutory definition, the injury must be comparable in gravity to

one of the enumerated examples – but need not rise to the level of a “serious bodily injury.”

Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 491 (2018).

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

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

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.

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

To prove the third element, the Commonwealth must prove that

[the alleged victim] was (an elder which under our law is a person 60

years of age or older) (a person with a disability) on the date of the

alleged offense.

Definition of disability. A person with a disability is a person

with a permanent or long-term physical or mental

impairment that prevents or restricts the individual’s ability

to provide for his or her own care or protection.

G.L. c. 265, § 13K(a)

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). 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”).

ELDER OR DISABLED PERSON

CAUSING BODILY INJURY

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)