Commonwealth v. Torres (Lawyers Weekly No. 10-096-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC‑11498 COMMONWEALTH vs. CARMELO TORRES. Franklin. April 7, 2014. ‑ June 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Assault and Battery. Practice, Criminal, Double jeopardy, Duplicative convictions, Lesser included offense, Required finding. Constitutional Law, Double jeopardy. Complaints received and sworn to in the Greenfield Division of the District Court Department on November 3, 2011 and December 9, 2011. The cases were tried before William F. Mazanec, III., J., and a posttrial motion for a required finding of not guilty was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Stephen P. Kelly for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. We granted the defendant’s application for further appellate review to determine whether a defendant’s conviction of violating of an abuse prevention order pursuant to G. L. c. 209A, § 7, is a lesser included offense of assault and battery on a person protected by an abuse prevention order, pursuant to G. L. c. 265, § 13A (b) (iii). Because we conclude that a violation of an abuse prevention order that contains a mandate to refrain from abuse is not a lesser included offense of assault and battery on a person protected by an abuse prevention order, and that there was sufficient evidence for the jury to determine that the defendant had committed both offenses, we affirm. Background. At a trial in 2011, the parties stipulated that an abuse prevention order had issued against the defendant, who had proper notice and knew of the order. The order contained the sole directive that the defendant refrain from abusing the victim. Two witnesses, a police officer and the defendant’s neighbor, testified for the Commonwealth as follows. Late in the evening on November 2, 2011, the defendant and the victim engaged in an altercation, and both were injured. A neighbor who was outside listened to the altercation for forty-five minutes. She heard the victim screaming, the defendant’s repeated shouts of “you hit me,” “go to bed,” and “shut your mouth,” and the recurring sound of a “fist to skin”. The neighbor saw the defendant push the victim into a rack that held digital video discs (DVDs). The defendant then left the apartment. The neighbor […]