Instruction 6.380, Criminal Model Jury Instructions for Use in the District Court

ASSAULT AND BATTERY BY MEANS OF A DANGEROUS WEAPON

ON A PREGNANT WOMAN

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 alleged victim] was pregnant and the defendant

knew, or had reason to know, that she was pregnant.

G.L. c. 265, § 15A(c)(ii).

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 PREGNANT WOMAN

In order to prove the defendant guilty of an intentional assault and

battery by means of a dangerous weapon on a pregnant woman, the

Commonwealth must prove five 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 [the alleged victim] was pregnant at the time of the alleged

assault and battery; and

Fifth: That the defendant knew, or had reason to know, that

[the alleged victim] was pregnant.

You should consider all the circumstances and any reasonable

inferences which you draw from the evidence to determine whether the

Commonwealth has proved beyond a reasonable doubt that the defendant

knew or had reason to know that [the alleged victim] was pregnant.

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 PREGNANT WOMAN

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 pregnant woman. 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 upon a pregnant woman, [the alleged victim] , by reckless conduct,

thereby causing bodily injury.

In order to prove the defendant guilty of having committed this

offense, the Commonwealth must prove five 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 [the alleged victim] was pregnant at the time of the alleged

assault and battery; and

Fifth: That the defendant knew, or had reason to know, that she was

pregnant.

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.

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

the evidence.

The Commonwealth must prove the injury was 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 6.300 (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 [the alleged victim] was pregnant at the time; (2) that

the defendant knew, or had reason to know, that [the alleged victim]

was pregnant; (3) that the defendant caused [the alleged victim]

reasonably to fear an immediate attack from the defendant;

(4) that this fear led her to try to (escape) (or) (defend herself)

from the defendant; and (5) that a dangerous weapon caused

more than a trifling bodily injury to [the alleged victim] 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.

See Instruction 6.300 (Assault and Battery by Means of a Dangerous Weapon) for additional notes.