Instruction 6.360, Criminal Model Jury Instructions for Use in the District Court

ASSAULT AND BATTERY WITH A DANGEROUS WEAPON

ON A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

The defendant is charged with having committed (an intentional) (or)

(a reckless) assault and battery with a dangerous weapon upon

[the alleged victim] when the defendant knew at the time that a court had issued

an order protecting [the alleged victim] from (him) (her).

G.L. c. 265, § 15A(c)(iii).

If the Commonwealth relies solely upon a theory of intentional assault and battery, continue with “I”

below. If the Commonwealth relies on both theories, continue with both “I” and “II.A” below. If the

Commonwealth relies solely upon a theory of reckless assault and battery, skip to “II.B.” below.

I. INTENTIONAL ASSAULT AND BATTERY WITH A DANGEROUS WEAPON

ON A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

In order to prove an intentional assault and battery with a dangerous

weapon upon a person protected by a court order, the Commonwealth

must prove six things beyond a reasonable doubt:

First: That the defendant touched the person of [the alleged victim] ,

however slightly, without having any right or excuse for doing so;

Second: That the defendant intended to touch [the alleged victim] ;

Third: That the touching was done with a dangerous weapon;

Fourth: That a court had issued (an order) (or) (a judgment) 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 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, 790 N.E.2d 718, 58 (2003).

Here the jury must be instructed on the definition of dangerous weapon from Instruction 6.300

(Assault and Battery by Means of a Dangerous Weapon).

If additional language on intent is appropriate. As I just mentioned, to

prove an intentional assault and battery, the Commonwealth

must prove beyond a reasonable doubt 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. The Commonwealth is not required to prove that the

defendant specifically intended to cause injury to

[the alleged victim] .

II. RECKLESS ASSAULT AND BATTERY WITH A DANGEROUS WEAPON

ON A PERSON PROTECTED BY AN ABUSE PREVENTION ORDER

A. Continue here If the jury is charged on both intentional and reckless conduct. There is a

second way in which a person may commit the crime of assault and battery

with a dangerous weapon on a protected person. Instead of intentional

conduct, it involves a reckless touching that results in bodily injury.

B. Begin here if the jury is charged solely on reckless conduct. The defendant is (also)

charged with having committed an assault and battery with a dangerous

weapon by reckless conduct on a person protected by an abuse prevention

order.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following six things beyond a reasonable

doubt:

First: That the defendant acted recklessly;

Second: That the defendant’s reckless conduct included an

intentional act which resulted in bodily injury to [the alleged victim] ;

Third: That the injury was inflicted by a dangerous weapon;

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

conduct; and

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

(was) (were) in effect.

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.

The defendant must have intended (his) (her) acts which resulted in

the touching, in the sense that those acts did not happen accidentally. 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 injury 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.

Commonwealth v. Burno, 396 Mass. 622, 487 N.E.2d 1366 (1986).

The injury must be sufficiently serious to interfere with the alleged

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.

Here, if not previously done, the jury must be instructed on the definition of dangerous weapon from Instruction

5.401 (Assault and Battery by Means of a Dangerous Weapon).

SUPPLEMENTAL INSTRUCTION

Victim injured while escaping. As I mentioned earlier, the

defendant’s touching must have directly caused [alleged victim’s]

injury or must have directly and substantially set in motion a

chain of events that produced the injury in a natural and

continuous sequence. You have heard some evidence

suggesting that [alleged victim] was injured while escaping from

[place] . To establish that element of the offense — that the

defendant caused the injury which occurred as a result of the

escape — the Commonwealth must prove beyond a reasonable

doubt: (1) that a court had issued (an order) (or) (a judgment)

against the defendant as I explained earlier; (2) the order was in

effect; (3) the defendant knew that the pertinent term(s) of the

order (was) (were) in effect; (4) the defendant caused

[the alleged victim] reasonably to fear an immediate attack from the

defendant; (5) this fear led [the alleged victim] to try to (escape) (or)

(defend himself) (defend herself) from the defendant; and

(6) [the alleged victim] received more than a trifling bodily injury

from or during that attempt to (escape) (or) (defend).

Commonwealth v. Parker, 25 Mass. App. Ct. 727, 522 N.E.2d 2 (1988).

Here the jury must be instructed on “Accident” (Instruction 9.100) if the issue of

accident is supported by the evidence.