NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
13-P-730 Appeals Court
COMMONWEALTH vs. TIMOTHY FORBES.
No. 13-P-730.
Hampden. June 3, 2014. - August 26, 2014.
Present: Kantrowitz, Milkey, & Hanlon, JJ.
Mayhem. Assault and Battery. Practice, Criminal, Duplicative
convictions, Lesser included offense.
Indictments found and returned in the Superior Court
Department on May 15, 2012.
The cases were tried before Constance M. Sweeney, J.
David Hirsch for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. After a jury trial in Superior Court, the
defendant was convicted of one count of mayhem, G. L. c. 265,
§ 14 (first theory), and one count of assault and battery
causing serious bodily injury, G. L. c. 265, § 13A(b)(i). The
defendant makes two different arguments that the mayhem
conviction is unsupported by sufficient evidence. Finding those
2
arguments unpersuasive, we affirm that conviction. However, we
vacate the conviction of assault and battery causing serious
bodily injury, because we agree with the defendant that it is
duplicative of the mayhem conviction.
Background. Based on the Commonwealth's evidence, the jury
could have found the following facts. On March 9, 2012, the
defendant attended a youth basketball tournament at the Holy
Name School in Springfield. In the fifth and sixth grade
championship game, a team featuring the defendant's two sons
played against an opposing team coached by the victim, Jose
Feliciano. The game was fairly close until both of the
defendant's sons "fouled out." The opposing team went on to win
by a fairly large margin.
At the end of the game, the players from both teams lined
up in the middle of the court to shake hands, and the coaches
lined up behind them. The defendant joined the end of the line
of his sons' team. When Feliciano reached the defendant, the
defendant assumed a "fighting stance" and began to kick and
throw punches at him. With his hands up, Feliciano backpedalled
away from the defendant, but the defendant continued to advance
and throw punches. Feliciano retreated all the way to the
gymnasium wall, where the defendant locked him in a "bear hug."
This allowed the defendant to pin Feliciano's arms and to
position his mouth near Feliciano's neck.
3
A group of people gathered around the men and attempted to
pull the defendant off Feliciano. In particular, Feliciano's
wife repeatedly hit the defendant in the head in an effort to
separate him from her husband. It was at this point that
Feliciano felt the defendant's teeth clamp onto his left ear and
then heard a "crunching" sound as a portion of the ear was
ripped off. In this manner, the defendant bit off a large piece
of Feliciano's ear, later measured to be four centimeters by two
and one-half centimeters. After he was finally separated from
Feliciano, the defendant spat out the severed piece of ear on
the floor and ran out of the gymnasium. According to Feliciano,
the entire confrontation with the defendant lasted twenty to
twenty-five seconds. A surgeon was unable to reattach the
severed cartilage and skin to what remained of Feliciano's left
ear.
Discussion. 1. Specific intent. To make out a case of
mayhem under the theory under which the defendant was charged,
the Commonwealth had to prove, inter alia, that he acted with
"malicious intent to maim or disfigure." G. L. c. 265, § 14.1
1
Under the first theory of mayhem, the relevant statute
provides in pertinent part:
"Whoever, with malicious intent to maim or disfigure, cuts
out or maims the tongue, puts out or destroys an eye, cuts
or tears off an ear, cuts, slits or mutilates the nose or
4
Feliciano argues that there was insufficient evidence for the
jury to find that he acted with such intent. According to him,
given the short duration and chaotic nature of the rapidly
escalating circumstances, no reasonable juror could conclude
that he specifically intended to maim or disfigure Feliciano.
In considering the sufficiency of the Commonwealth's
evidence, we are required to view the evidence in the light most
favorable to the Commonwealth. Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). "[T]he specific intent to maim or
disfigure can be established by 'direct or inferential proof
that the assault was intentional, unjustified, and made with
reasonable appreciation on the assailant's part that a disabling
or disfiguring injury would result.'" Commonwealth v. Cleary,
41 Mass. App. Ct. 214, 217 (1996), quoting from Commonwealth v.
Davis, 10 Mass. App. Ct. 190, 196 (1980). While specific intent
may in some cases be demonstrated by evidence of a sustained
attack, a prolonged assault is not a prerequisite; specific
intent may also be inferred from the "severity and extent of the
lip, or cuts off or disables a limb or member, of another
person . . . shall be punished . . . ."
The statute also establishes a second theory of mayhem, which
involves the use of "a dangerous weapon, substance, or
chemical." "The two parts [of the mayhem statute] represent
distinctive and independent bases of liability." Commonwealth
v. Hogan, 7 Mass. App. Ct. 236, 246 n.11 (1979). It is
undisputed that the defendant was indicted and tried only under
the first theory.
5
[victim's] injuries." See Commonwealth v. Hap Lay, 63 Mass.
App. Ct. 27, 36 (2005).
There was ample evidence for the jury to find that the
defendant acted with specific intent to maim or disfigure
Feliciano. Indeed, proof of the requisite intent can be drawn
from the very fact that the defendant bit the victim's ear with
adequate force and for a sufficient duration to crush and tear
off a "very tough" layer of cartilage there. Regardless of the
extent to which the defendant was agitated by the surrounding
crowd of people attempting to disengage him, a jury might well
have wondered how he could have bitten off a large portion of
Feliciano's ear without maliciously intending to maim or
disfigure him. It also bears noting that the defendant was the
initiator of the fight, that he continued to kick and swing
punches at Feliciano even as Feliciano was backing away, and
that he wrapped his arms around Feliciano's arms, so that
Feliciano was unable to fend off the defendant when he placed
his mouth to Feliciano's ear.
The defendant's reliance on Commonwealth v. Cleary, 41
Mass. App. Ct. at 218, and Commonwealth v. Johnson, 60 Mass.
App. Ct. 243, 246-247 (2003), is misplaced. In those cases, we
reversed a mayhem conviction where the defendant struck the
victim with "a weapon [that] caused a more severe injury than
anticipated." Commonwealth v. McPherson, 74 Mass. App. Ct. 125,
6
128-129 (2009). Unlike the injuries suffered by the victims in
Cleary and Johnson, the injury to Feliciano's ear in this case
was "a logical and foreseeable consequence of [the defendant's]
planned, sudden, and unprovoked attack." Id. at 129.
2. Nature of the injury. The defendant next contends that
there was insufficient proof of the type of injury necessary to
sustain a mayhem conviction. The relevant statutory language
applies to one who "cuts or tears off an ear." The defendant
argues that "off" should be interpreted as modifying both "cuts"
and "tears." Based on this reading, he further argues that
because it is undisputed that he bit off only a portion the
victim's ear, he cannot reasonably be said to have cut off or
torn off "an ear."2 The Commonwealth maintains that "off" should
be interpreted as modifying only "tears," not "cuts," and
accordingly that one can be guilty of mayhem by making any cut
to the ear, so long as it is done with the requisite "malicious
intent to maim or disfigure."3 Alternatively, the Commonwealth
2
The defendant argues that "an ear" means the entire outer
ear; he concedes that one need not tear out the inner ear as
well to be guilty of mayhem.
3
The word "cuts" is used in various ways in the single
sentence that comprises the statute. It is used as a stand-
alone verb with regard to noses and lips ("cuts, slits or
mutilates the nose or lip"), it is modified by "out" with regard
to a tongue ("cuts out or maims the tongue"), and it is modified
by "off" with regard to a limb ("cuts off or disables a limb or
member"). Thus, the surrounding language of the statute
7
argues that even if "off" is interpreted as modifying both
"cuts" and "tears," removal of the entire ear is not required.4
In interpreting a statute, we begin with the plain
language, but also draw guidance from other sources, such as the
statute's legislative history and the law of other
jurisdictions. See Commonwealth v. Jean-Pierre, 65 Mass. App.
Ct. 162, 163 (2005). "A statute should be construed in a
fashion which promotes its purpose and renders it an effectual
piece of legislation in harmony with common sense and sound
reason." Commonwealth v. Anderson, 38 Mass. App. Ct. 707, 710
(1995) (quotation and citation omitted). Under the rule of
lenity, we interpret ambiguities in a criminal statute in a
defendant's favor. Commonwealth v. Williamson, 462 Mass. 676,
679 (2012).
We need not resolve whether the rule of lenity requires
that "off" be interpreted as modifying both "cuts" and "tears."
That is because we agree with the Commonwealth that, in any
provides some textual fodder for each side. See Commonwealth v.
Brooks, 366 Mass. 423, 428 (1974) (we interpret "words in a
statute . . . in light of the other words surrounding them").
The current version of the relevant language dates to 1836. See
R.S. 1836, c. 125, § 10. An earlier version applied to people
who "cut off an Ear." St. 1804, c. 123, § 4.
4
Although this is the first case in which we have
considered the precise type of ear injury necessary to sustain a
mayhem conviction, we previously affirmed a conviction of mayhem
where the defendant bit off only a portion of the victim's ear.
Commonwealth v. Davis, 10 Mass. App. Ct. at 190, 199.
8
event, one need not cut off or tear off an entire ear to be
guilty of mayhem. Simply put, we think that interpreting "an
ear" as necessarily denoting an entire ear ascribes to the word
"an" a mathematical precision that was never intended. "The
maxim that penal statutes are to be strictly construed does not
mean that an available and sensible interpretation is to be
rejected in favor of a fanciful or perverse one." Commonwealth
v. Roucoulet, 413 Mass. 647, 652 (1992), quoting from
Commonwealth v. Tata, 28 Mass. App. Ct. 23, 25-26 (1989)
(Kaplan, J.). Certainly, we would not hesitate to affirm a
mayhem conviction, for instance, where the defendant had removed
all but a tiny portion of the victim's ear. At least where, as
here, the evidence shows that the defendant severed a
substantial portion of the victim's ear, we conclude that a jury
reasonably could have concluded that the defendant's actions
amounted to "cut[ting] or tear[ing] off an ear."
Moreover, this reading of the mayhem statute accords with
the conclusions of courts interpreting similar statutes in other
jurisdictions.5 See Hawaii v. Gallagher, 9 Haw. 587, 588-590
(1894) (affirming mayhem conviction where only "portion of the
5
As noted, see note 3, supra, the statutory language
codifying the first theory of mayhem dates to the beginning of
the nineteenth century, with the current language in place since
1836. Nearly identical versions of the statute were enacted in
at least ten other States and territories, and broadly similar
statutes in others.
9
ear . . . was torn off"). Cf. Lamb v. Cree, 86 Nev. 179, 181
(1970) ("Under our law, biting off a portion of the ear is
equivalent to a slitting of the ear"). See also LaFave,
Substantive Criminal Law § 16.5(c) (2d ed. 2003) ("It has been
held mayhem to cut off a part of an ear or a nose, so long as
the net result is an impairment of natural comeliness"). We
conclude that the judge did not err in denying the defendant's
motion for a required finding.
3. Duplicative convictions. Finally, the defendant argues
that his conviction of assault and battery causing serious
bodily injury should be vacated because it is a lesser included
offense of mayhem.6 We have previously ruled that assault and
battery by means of a dangerous weapon causing serious bodily
injury is a lesser included offense of mayhem, second theory,
but have not had occasion to address the precise question
presented here. See Commonwealth v. McPherson, 74 Mass. App.
Ct. at 129.
To determine whether two convictions are duplicative, we
apply the "long-prevailing test" that asks "whether each crime
requires proof of an additional fact that the other does not."
Commonwealth v. Crocker, 384 Mass. 353, 357 (1981). We consider
only the objective elements of each crime and not the facts of
6
It is undisputed that both convictions are based on the
defendant's biting Feliciano's ear.
10
any particular case. Commonwealth v. Vick, 454 Mass. 418, 431
(2009). "When statutory crimes can be violated in multiple
ways, comparison of their elements must focus on the specific
variations that the defendant is alleged to have committed."
Commonwealth v. Roderiques, 462 Mass. 415, 421 (2012).
Applying these principles to the two criminal offenses at
issue here, we agree with the defendant that his convictions are
duplicative. A conviction under G. L. c. 265, § 13A(b)(i),
requires evidence of an assault and battery that causes serious
bodily injury, which is defined as "bodily injury that results
in a permanent disfigurement, loss or impairment of a bodily
function, limb or organ, or a substantial risk of death." G. L.
c. 265, § 13A(c).7 While mayhem (first theory) contains an
element -- specific intent to maim or disfigure -- that is not
contained in assault and battery causing serious bodily injury,
the converse is not true. More specifically, the specified
injuries to the body parts listed in the first part of the
mayhem statute would necessarily constitute both an assault and
battery and either "permanent disfigurement" or "loss or
impairment" of a "limb or organ" under the "serious bodily
7
In Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. at 167,
we concluded that the term "permanent" in the assault and
battery statute modified only "disfigurement." Thus, "loss or
impairment of a bodily function, limb or organ" need not be
permanent to meet the statutory definition of serious bodily
injury.
11
injury" provision.8 See G. L. c. 265, § 13A(c). In other words,
the Commonwealth could not prove that a defendant committed any
of the enumerated offenses under the first branch of the mayhem
statute without also proving that he committed an assault and
battery causing serious bodily injury. The conviction of the
assault and battery charge therefore must be vacated. See
Commonwealth v. Rivas, 466 Mass. 184, 189 (2013) (when faced
with duplicative convictions, "appellate courts have generally
considered it appropriate to vacate the conviction on the
offense with fewer elements and to affirm the conviction on the
more serious offense without remand to the trial court"
[quotations omitted]).
Conclusion. For the reasons stated above, we affirm the
mayhem conviction, but vacate the conviction of assault and
battery causing serious bodily injury.
So ordered.
8
At oral argument, the Commonwealth acknowledged that an
ear is an "organ" for purposes of G. L. c. 265, § 13A(c). This
accords with the standard medical definition of that term. See
Stedman's Medical Dictionary 1378 (28th ed. 2006) (defining
"organ" as "[a]ny part of the body exercising a specific
function [e.g., respiration, secretion, or digestion]").