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16-P-1109                                              Appeals Court

                 COMMONWEALTH   vs.   RODNEY McCRAY.


                           No. 16-P-1109.

        Essex.       December 11, 2017. - August 31, 2018.

               Present:   Rubin, Lemire, & Shin, JJ.


Assault and Battery by Means of a Dangerous Weapon.
     Identification. Constitutional Law, Identification,
     Harmless error. Evidence, Identification, Joint venturer.
     Joint Enterprise. Practice, Criminal, Motion to suppress,
     Required finding, Instructions to jury, Harmless error,
     Defendant's decision not to testify. Error, Harmless.



     Indictments found and returned in the Superior Court
Department on September 25, 2013.

     A pretrial motion to suppress evidence was heard by David
A. Lowy, J., and the cases were tried before Timothy Q. Feeley,
J.


     David B. Hirsch for the defendant.
     Marina Moriarty, Assistant District Attorney, for the
Commonwealth.


    SHIN, J.     On the afternoon of August 30, 2013, two men

attacked another man on a public street, inflicting life-

altering injuries.    Both men punched the victim, one slammed him
                                                                    2


to the pavement, and one or both kicked him while he lay on the

ground.    After an eyewitness identified the defendant as one of

the assailants, the defendant was indicted on charges of assault

and battery, assault and battery by means of a dangerous weapon

(to wit, pavement) causing serious bodily injury (ABDW-SBI), and

assault and battery by means of a dangerous weapon (to wit, shod

foot).    A jury convicted the defendant of all three charges.1

     On appeal the defendant argues that (1) the motion judge

should have suppressed the eyewitness's identification, (2) the

evidence was insufficient to support a conviction of ABDW-SBI

under a theory of joint venture, (3) the trial judge erred in

instructing the jury on the intent required for ABDW-SBI under a

theory of joint venture, and (4) the trial judge failed to

instruct the jury that they could draw no adverse inference from

the defendant's failure to testify, despite his request for such

an instruction.    As to the third of these arguments, we agree

that the joint venture instructions were erroneous because they

did not convey to the jury that the defendant must have shared

his coventurer's intent to use a dangerous weapon to be guilty

of ABDW-SBI.    Nonetheless, we conclude that there is no

substantial risk of a miscarriage of justice because the jury,




     1 The jury acquitted the defendant of intimidation of a
witness.
                                                                      3


by convicting the defendant of assault and battery with a shod

foot,2 necessarily rejected his theory that he withdrew from the

assault before the climactic moment when the pavement was used

as a dangerous weapon.     Instead, the jury necessarily found that

the defendant consciously acted together with his coventurer

throughout the course of the assault, including at that

climactic moment.   Accordingly, and as we reject the defendant's

remaining arguments, we affirm.

     Background.3   1.   The assault.   Jesse Downs was walking on

Winter Street near Lafayette Square in Haverhill when, seemingly

without provocation, two men attacked him.     Four eyewitnesses to

the assault testified at trial as follows.

     Maria Baez, a childhood acquaintance of Downs, was driving

on Winter Street when she saw Downs and rolled down her window

to say hello.   Before she could do so, two "dark complexion[ed]"

men walking behind Downs yelled something that caught his

attention.   They approached and immediately started punching

Downs in his upper body.    The shorter man held Downs's hands,

while the taller man with tattoos "continued to punch, and at




     2 The jury were instructed only as to principal liability on
that charge.

     3 We summarize the evidence, and the reasonable inferences
therefrom, in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
                                                                     4


one point lift[ed] Downs off the floor and dropped him on the

ground."   One of the two men -- Baez did not remember which --

then kicked Downs, while the other stood nearby, before both

took off running down the street.    Baez telephoned 911 and

followed the two men as they ran up Winter Street.    A third man

was at the scene but did not participate in the assault.

       Christopher Siek was driving on Winter Street when he saw

two "dark-skinned" men punching a white man in the torso, while

a third man stood off to the side.    As the victim went into the

street to avoid the punches, one of the two men followed him,

"picked him right up and just slammed him down . . . [l]ike a

body slam."   The attack "happened so fast [Siek] couldn't do

anything."    After Siek sounded his horn, the three men ran up

the street.

       Kenneth Farinelli was driving through Lafayette Square when

he saw "[t]hree African American[s]" standing around a white

man.    One of the men "picked [the victim] up from around the

waist" and "slammed [him] on his head."    The three men then "ran

off."

       James Flanagan was driving through Lafayette Square when he

saw two men with "dark skin" attacking a white man.    One "fairly

tall" man "picked [the victim] up and body slammed him."    Both

men then kicked the victim in the head before running down the
                                                                     5


street together.     A third man was there but was not involved in

the assault.

    Downs was transported to the hospital, where he collapsed

in the waiting room and was airlifted to another hospital to

undergo emergency brain surgery.     Four months after the assault,

he was finally released from a rehabilitation facility.     By the

time of trial in June of 2015, Downs was still confined to a

wheelchair, dependent on a feeding tube, and had a pump in his

stomach "to control the tone in his body."     According to his

girl friend, Downs "needs assistance with everything" -- "[h]e

can't go to the bathroom on his own, he can't shower on his

own."

    2.   The investigation.    Haverhill police Officer Bryan

Bailey was dispatched to Winter Street following "a report that

a male was laid out after being beat up."     As he was heading

that direction, he was redirected to a different location about

one-quarter of a mile away.    There, he saw two men matching the

descriptions provided by dispatch.    One man, later identified as

the defendant, was wearing jeans and had a black tank top draped

over his shoulder.    The other man was wearing a white shirt and

jeans.

    Officer Bailey stopped the defendant and asked to speak

with him.   The defendant "went off," "flailing his arms and

yelling and screaming."    The officer then asked dispatch to
                                                                      6


"have the witness that was following [the two] individuals come

to [his] location."     Although the officer did not see anyone

arrive, he was told by dispatch "that the witness had driven by

and said the party [he] had stopped was the correct person."4

     Officer Bailey drove the defendant back to the scene of the

assault.   As he was taken out of the cruiser, the defendant

started yelling at Downs, to the effect of "I hit you?      You said

I fucking hit you?"     When Downs could not make an

identification, the officer returned the defendant to the

cruiser and drove him to the police station.     During booking the

defendant's height was recorded as six feet, two inches, and his

weight as 160 pounds.

     Officer Jamie Landry headed to a different location in

search of the second suspect wearing the white shirt and jeans.

There, he saw a man known to him as Xavier Simms.      Although

Simms admitted he had been with the defendant, the officer

allowed him to leave because he did not match the description of

either suspect.

     Ten to fifteen minutes later, Officer Landry saw Simms

again, a few blocks from his previous location.     Simms was with

the defendant's brother and a man known to the officer as


     4 This witness was Baez, and her identification was the
subject of the defendant's motion to suppress. We discuss the
identification in greater detail, infra.
                                                                     7


Roberto Hilerio.     Several hours later, the three men entered the

police station asking about the defendant.    Sergeant Meaghan

Buckley interacted with them and saw no tattoos on either

Hilerio or Simms.    At some time thereafter, Hilerio was arrested

in connection with the assault; during booking his height was

recorded as five feet, ten inches, and his weight as 180 pounds.

    Officer Dennis Moriarty was transporting the defendant from

the police station on the night of the assault.    While seated in

the cruiser, the defendant asked "multiple different times,

different ways," "how much time he could get for the crimes,"

"if he was going to get life," and "if he told the truth, could

he get less time."    He also said, "Seriously, I didn't kill no

one, right? . . . I'm just going to say everything I did.     I

can't go away for life."

    Also that night, the police interviewed Baez.     She

described one suspect as "tall and skinny kind of like muscled

with tattoos on his arms," wearing a black tank top and jeans,

and the other as "probably about five something height" wearing

a white shirt and jeans.    She stated that "[t]he much taller,

tattooed, dark-skinned guy lifted [Downs] in the air and smashed

him against the ground."    She also stated that the "much taller"

man "was the one [who] did the kicking."

    In October of 2013, Sergeant Buckley interviewed Flanagan,

who recalled that "the bigger of the two" men "grabbed . . . the
                                                                    8


white guy and picked him up and slammed him on his head."

According to Flanagan, the man with the white shirt was "le[ss]

aggressive" and "smaller."   He also stated that he saw an

officer with "the bigger," "well-built" man, and that that man

was the one who had picked the victim up and dropped him on the

ground.

    At trial the prosecutor asked the defendant to remove his

shirt and show his arms, hands, and shoulder to the jury.    When

he did so, he revealed three tattoos -- one on each hand and one

on his right shoulder.

    3.    The defendant's case.   The defense's theory at trial

was that, while the defendant "threw a couple punches," he had

stopped punching when "out of nowhere" Hilerio "ran up, grabbed

Mr. Downs from behind, and picked him up and slammed him onto

the street."   The defendant was merely "standing there watching

this whole thing unfold."

    In support of this theory, the defense elicited testimony

from Officer Guy Cooper that Baez told him at the crime scene

that a man "with a white t-shirt" had slammed Downs to the

ground.   The defense also called Simms, who testified that the

defendant had "stopped throwing punches" and "backed up" when

Hilerio "jumped in," picked Downs up, and dropped him.

According to Simms, the defendant was just "standing there," and

"then after that, he took off."   Finally, the defense called the
                                                                         9


defendant's brother, who testified that Hilerio told him that

"he slammed the guy down" and the defendant "didn't know he was

going to do it."

     Discussion.     1.    Motion to suppress.   The motion judge made

the following findings regarding Baez's identification.        After

witnessing the attack, Baez telephoned 911 and gave a

description of the suspects.       She continued to relay information

to dispatch as she followed the suspects in her vehicle.

     Within two to four minutes of the 911 call, Officer Bailey

saw an individual, identified at the motion to suppress hearing

as the defendant, who matched Baez's description.        The officer

stopped the defendant on Fifth Avenue and conducted a patfrisk.

The defendant became "very agitated" and started "flailing his

arms and yelling."        As a result, the officer arrested the

defendant for disorderly conduct, handcuffed him, and put him in

the cruiser.

     While this was happening, the dispatcher told Baez to go to

Fifth Avenue and wait in her vehicle for an officer to come

over.   Instead of following these instructions, Baez drove by

and observed the defendant with Officer Bailey.        She then

telephoned back to dispatch and stated that the person the

officer was holding was one of the perpetrators.        When Baez

drove by, Officer Bailey was in the process of arresting the

defendant but had not yet placed him in the cruiser.
                                                                      10


    Based on these findings, the motion judge ruled that Baez's

identification was admissible because it did not result from

"unnecessarily suggestive" circumstances.      We review this ruling

only for abuse of discretion as it is uncontested that the

identification did "not arise from a police procedure."        See

Commonwealth v. Johnson, 473 Mass. 594, 602 (2016).        An abuse of

discretion occurs if the "decision resulted from a clear error

of judgment in weighing the factors relevant to the decision

. . . such that the decision falls outside the range of

reasonable alternatives."     Ibid. (quotation omitted).

    Out-of-court identifications made without police wrongdoing

are analyzed under common law principles of fairness, as

articulated in Commonwealth v. Jones, 423 Mass. 99, 109 (1996).

See Johnson, 473 Mass. at 598.    A judge applying those

principles "may decline to admit an unreliable eyewitness

identification that resulted from a 'highly' or 'especially'

suggestive confrontation with the defendant."      Id. at 598-599,

quoting from Jones, 423 Mass. at 109.       The defendant bears the

burden of proving suggestiveness by a preponderance of the

evidence.   See id. at 599.   If he meets that burden, then the

judge must weigh "the probative value of the identification

against the danger of unfair prejudice" arising from the

suggestive circumstances.     Id. at 600.
                                                                 11


     Here, the motion judge assumed that the defendant was

already handcuffed when Baez drove by, but concluded that that

alone did not render the circumstances of her identification

"unnecessarily suggestive."5   The defendant does not contend that

the judge abused his discretion in this respect.   In fact, he

concedes that the judge was correct.   See Commonwealth v.

Phillips, 452 Mass. 617, 627-628 (2008) (showup procedure was

not unnecessarily suggestive even though defendant was in police

wagon, handcuffed and flanked by two officers).

     Nevertheless, the defendant argues that Baez's

identification was so unreliable -- because, among other

reasons, she drove by quickly, while distracted, and without


     5 Although the judge phrased the inquiry in these terms, we
note that unnecessary suggestiveness is the standard that
applies to identification procedures conducted by the police.
See Johnson, 473 Mass. at 604. Where, as here, there is no
allegation of police misconduct, the standard is whether the
identification was made under "highly" or "especially"
suggestive circumstances -- meaning, circumstances that are "so
suggestive that there is a substantial risk that they influenced
the witness's identification of the defendant, inflated his or
her level of certainty in the identification, or altered his or
her memory of the circumstances of the operative event." Id. at
603-604. Under either standard, however, the result is the
same. As the judge correctly observed, if the procedure would
not have been unnecessarily suggestive had it been conducted by
the police, "a common law analysis provides no more protection."
See Commonwealth v. McWilliams, 473 Mass. 606, 617 (2016),
quoting from Johnson, 473 Mass. at 603-604 (where identification
was made "in circumstances comparable to a permissible showup
conducted by a police officer," procedure "could not have been
'especially suggestive' because it was conducted by a third
party").
                                                                     12


stopping to hear instructions from the officer -- that it should

have been suppressed.   But under the Jones framework, a judge

need not conduct a reliability analysis unless the defendant

first demonstrates the existence of especially suggestive

circumstances.   See Jones, 423 Mass. at 109; Johnson, 473 Mass.

at 604.   Because the defendant failed to make that showing here,

the motion judge properly left the reliability of Baez's

identification to the jury to decide.

    2.    Sufficiency of the evidence.    The defendant challenges

the sufficiency of the evidence only as to his conviction of

ABDW-SBI.   As to this charge, the Commonwealth proceeded on

theories of both principal and joint venturer liability, and the

jury returned a general guilty verdict.     While not contesting

that the evidence was sufficient to convict him as a principal,

the defendant argues that he could not be convicted as a

coventurer because the Commonwealth failed to prove that he knew

or intended that Hilerio would throw Downs to the pavement.        In

considering this challenge, we review the evidence in the light

most favorable to the Commonwealth to determine whether any

"rational trier of fact could have found the essential elements

of the crimes beyond a reasonable doubt."    Commonwealth v.

Mendez, 476 Mass. 512, 523 (2017).

    The flaw in the defendant's argument is that, under

Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009), a reviewing
                                                                    13


court does not "examine the sufficiency of the evidence

separately as to principal and joint venture liability."

Instead, we ask "whether the evidence is sufficient to permit a

rational juror to conclude beyond a reasonable doubt that the

defendant knowingly participated in the commission of the crime

charged, with the intent required to commit the crime."     Ibid.

See Commonwealth v. Housen, 458 Mass. 702, 706-707 (2011);

Commonwealth v. Barbosa, 477 Mass. 658, 665 (2017).    Regarding

the charge here, the intent required is general -- the

Commonwealth must prove "that the defendant intentionally

touched the victim . . . with an inherently dangerous weapon or

an object used in a dangerous fashion" without justification,

resulting in serious bodily injury.6   Commonwealth v. Vick, 454

Mass. 418, 432 (2009).

     Viewed in the light most favorable to the Commonwealth, the

evidence supports a finding that the defendant was the assailant

who threw Downs to the pavement, establishing that the defendant

had the requisite knowledge and intent to commit the crime.

Baez testified and stated in her police interview that the

taller man with tattoos dropped Downs on the ground.   Similarly,

Flanagan testified that the "fairly tall" man "body slammed"


     6 The defendant does not contest that the pavement qualifies
as a dangerous weapon, that the touching was without
justification, and that Downs's injuries were serious.
                                                                    14


Downs, and he stated in his police interview that the "bigger"

man picked Downs up and dropped him.    Given the additional

evidence that the defendant was four inches taller than Hilerio,

and has tattoos while Hilerio does not, a rational jury could

have found that it was the defendant himself who slammed Downs

to the pavement, causing his grievous injuries.

     Furthermore, even examining the evidence of joint venture

separately as the defendant requests,7 we conclude that it was

sufficient to support his conviction.   "[T]here is no need to

prove an anticipatory compact between the parties to establish

joint venture . . . if, at the climactic moment the parties

consciously acted together in carrying out the criminal

endeavor."   Commonwealth v. Sexton, 425 Mass. 146, 152 (1997)

(quotation omitted).   Here, there was testimony from several

witnesses that the defendant and Hilerio acted in concert

throughout the course of the assault.   The two men approached

Downs together and attacked him in a coordinated fashion, one

holding his hands while the other punched him.    After Downs was

thrown to the pavement, the defendant continued the assault by

kicking him.   The two men then fled together.    "At no time




     7 We entertain the defendant's argument as it is relevant to
our discussion, infra, regarding the instructions on joint
venture.
                                                                  15


during [the] conflict did the defendant seek to withdraw."

Ibid.

     From this evidence the jury could have found that the

defendant had the intent to touch Downs with the pavement in a

dangerous fashion.   See Vick, 454 Mass. at 432.   Contrary to the

defendant's contention, the Commonwealth did not need to prove

that he knew or intended in advance that the pavement would be

used during the assault.   See Sexton, 425 Mass. at 152.   Rather,

the jury could have inferred the requisite knowledge and intent

from the evidence that the defendant kicked Downs immediately

after he was slammed to the pavement.   See ibid. (although

defendant "may not initially have had knowledge that his brother

intended to use the pavement to effectuate the attack," jury

could still convict him as coventurer based on his actions of

"continuously kick[ing] and punch[ing] [the victim] while his

brother repeatedly slammed [the victim's] head into the

pavement"); Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 232-233

(2016) (evidence sufficient to support conviction of assault and

battery with knife, where defendant and coventurer pursued

victim together and defendant kicked victim while coventurer

stabbed him).   Cf. Commonwealth v. Johnson, 92 Mass. App. Ct.

538, 545 (2017) (there was probable cause that defendant shared

intent to use glass as dangerous weapon, where "after

[coventurer] struck the victim with the glass, [defendant] did
                                                                  16


not retreat from the combat, but instead went after the victim

himself").

    3.    Instructions on joint venture.   We next consider the

defendant's challenge to the joint venture instructions, which

he says were deficient because they failed to "advise the jury

that the aider and abettor needed to share the principal's

intent that some dangerous weapon be used."   Consistent with

Zanetti, 454 Mass. at 467-468, the trial judge instructed the

jury that the defendant was guilty of ABDW-SBI if the

Commonwealth proved beyond a reasonable doubt that he "knowingly

and meaningfully participated in the commission of the crime of

[ABDW-SBI]" and "had the intent required for that particular

crime."   The judge then gave a more specific instruction on

intent.   After first explaining that the principal must have

"intentionally used pavement as a means of inflicting serious

harm," the judge instructed as follows on the intent required of

an aider and abettor:

    "The intent required [of] an aider and abettor is
    different. The aider and abettor must have intended a
    joint venture with the principal to assault and batter
    Jesse Downs. The aider and abettor need not have agreed to
    use pavement as a dangerous weapon, or even known or
    intended that the principal use pavement as a dangerous
    weapon.

    "The aider and abettor must have intended that he and the
    principal would jointly commit an assault and battery upon
    Jesse Downs. That is, the aider and abettor must have
    intended a joint enterprise with the principal to assault
                                                                     17


       and beat Jesse Downs in a harmful way, without
       justification or excuse."

       We agree with the defendant that these instructions were

erroneous in that they would have allowed the jury to convict

the defendant of ABDW-SBI upon mere proof that he intended

jointly with Hilerio to commit a simple assault and battery.

The Commonwealth's burden was higher:   it had to prove that the

defendant knowingly participated in the commission of the

charged offense "with the intent required for that offense,"

Zanetti, 454 Mass. at 468, which for ABDW-SBI includes intent to

use a dangerous weapon.    But it is not the case, as the

defendant argues, that "such proof could be established only by

evidence that Mr. Hilerio communicated to [the defendant] that

he intended to . . . use the pavement as a weapon or that [the

defendant] urged him to use or otherwise supported his use of

it."   Again, the jury could infer the requisite intent from

evidence that "at the climactic moment the parties consciously

acted together in carrying out the criminal endeavor."      Sexton,

425 Mass. at 152 (quotation omitted).   See Lugo, 89 Mass. App.

Ct. at 232-233; Johnson, 92 Mass. App. Ct. at 544-545.

Nevertheless, the instructions here, viewed as a whole and

notwithstanding the judge's accurate statement of Zanetti, did

not clearly apprise the jury of this element of the crime.     See

Commonwealth v. Thomas, 401 Mass. 109, 119 (1987), quoting from
                                                                  18


Connolly v. Commonwealth, 377 Mass. 527, 536 (1979) ("[N]o

general statement of the charges can remedy a specific

instruction which is defective 'unless the general statement

clearly indicates that its consideration must be imported into

the defective instruction'").

     The error does not, however, require automatic reversal of

the defendant's conviction as he suggests.   "Although

constitutional error, the omission of an element of the crime

from the jury instruction is not among the very limited class of

structural errors subject to automatic reversal, and upon proper

objection would be subject to harmless error analysis."

Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001).   See

Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 424-425 (2003).

The defendant claims that he preserved his objection, but the

record demonstrates, to the contrary, that he affirmatively

agreed with the instructions.8   We must therefore determine


     8 As the defendant notes, lead defense counsel and the judge
had an extended discussion about the intent element of the
offense. At no point, however, did counsel object to the
instructions. He failed to do so despite the judge's expressed
concerns that it appeared as though counsel "[didn't] agree with
[the] instructions" and that he (the judge) "didn't quite
understand . . . [counsel's] contentment with these
instructions." Nonetheless, counsel stated three times that he
agreed. And although the defendant's second counsel indicated
that he did have concerns, he chose not to specify the nature of
his objection, stating that he "[didn't] want to confuse anyone
else." Furthermore, after the judge finished instructing the
jury, lead counsel again stated that he was content. From these
circumstances we conclude that the objection was not preserved.
                                                                    19


whether the error created a substantial risk of a miscarriage of

justice.   See Commonwealth v. Alphas, 430 Mass. 8, 15 (1999);

Commonwealth v. Loadholt, 456 Mass. 411, 427 (2010).     This

standard requires us to "review the evidence and the case as a

whole, considering the strength of the Commonwealth's case, as

well as the nature and significance of the alleged errors."

Commonwealth v. Chase, 433 Mass. 293, 299 (2001).     After doing

so, we will reverse the verdict "only in the extraordinary

situation where . . . we are left with uncertainty that the

defendant's guilt has been fairly adjudicated."     Ibid.9

    The Commonwealth argues that no substantial risk of a

miscarriage of justice exists because "the overwhelming weight

of credible evidence suggested that the defendant" was the

principal in the assault.   It is true that, under the

substantial risk standard, overwhelming evidence of guilt can

overcome an error in instructing on an element of the offense.

See Alphas, 430 Mass. at 15.   But the evidence here, while




    9  Our dissenting colleague suggests that we must presume a
substantial risk of a miscarriage of justice where there has
been an instructional error on an element of the offense. See
post at        . But to the contrary, the Supreme Judicial
Court and this court have repeatedly held that such an error
does not require reversal where the circumstances reveal that it
did not materially affect the guilty verdict. See, e.g.,
Alphas, 430 Mass. at 15; Loadholt, 456 Mass. at 427; Palmer, 59
Mass. App. Ct. at 426; Commonwealth v. Velez, 82 Mass. App. Ct.
12, 19-20 (2012).
                                                                  20


certainly sufficient to convict the defendant as the principal,

would also support a finding that Hilerio was the one who threw

Downs to the pavement.10   The cases suggest that a greater

quantum of evidence is needed for us to conclude that justice

did not miscarry.   See Commonwealth v. Azar, 435 Mass. 675, 688-

689 (2002) (erroneous malice instruction created substantial

risk of miscarriage of justice where Commonwealth's evidence was

"strong" but "controverted" and malice could not be "ineluctably

inferred").

     The verdicts that the jury actually returned, however,

allow us to conclude that there is no substantial risk of a

miscarriage of justice.    Even under harmless error analysis, "an

instructional omission, misdescription, or conclusive

presumption" does not mandate reversal "where other facts

necessarily found by the jury are the 'functional equivalent' of

the omitted, misdescribed, or presumed element."    Neder v.

United States, 527 U.S. 1, 13 (1999).    Cf. Commonwealth v.

Britt, 465 Mass. 87, 98-99 (2013) (omission of instruction on

knowledge of dangerous weapon did not create substantial




     10In particular, such a finding would be supported by
Simms's testimony and Siek's statement in his police interview
that the "small, thin one, that was about five-eight, [was] the
suspect who slammed the white boy on the ground." There was
also conflicting evidence about the color and type of shirt worn
by the principal assailant.
                                                                   21


likelihood of miscarriage of justice where jury, by convicting

defendant of other counts, necessarily found that she herself

possessed a firearm); United States v. Baldwin, 987 F.2d 1432,

1438-1439 (9th Cir. 1993) (failure to give overt act instruction

was harmless error where jury could not have convicted defendant

of other counts without finding overt act); United States v.

Johnson, 216 F.3d 1162, 1167 (D.C. Cir. 2000) (error in defining

"use" and "carry" was harmless where jury could not have

convicted defendant of another count without finding "act that

constitutes both 'using' and 'carrying'").    Furthermore, where

"the omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have

been the same absent the error, the erroneous instruction is

properly found to be harmless."    Neder, 527 U.S. at 17.    See

Alphas, 430 Mass. at 15; Loadholt, 456 Mass. at 427.

    In this case, by convicting the defendant of simple assault

and battery and assault and battery by means of a dangerous

weapon (shod foot), the jury necessarily found that the

defendant punched Downs and then kicked him once he was on the

pavement.   This means, in turn, that the jury necessarily

rejected the defendant's theory that he threw a few punches and

then withdrew from the conflict.   Critically, this was the only

theory presented by the defense.   The defense did not argue, and

no reasonable view of the evidence would permit a finding, that
                                                                   22


the defendant withdrew from the rapidly unfolding conflict

before Downs was thrown to the pavement, then returned to kick

him moments later.     Therefore, by convicting the defendant of

kicking Downs, the jury had to have found that he "consciously

acted together" with Hilerio throughout the assault, including

"at the climactic moment" when the pavement was used as a

dangerous weapon.    Sexton, 425 Mass. at 152 (quotation omitted).

       No substantial risk of a miscarriage of justice exists in

these circumstances.     Under Sexton, proof that a defendant

"consciously acted together" with his coventurer at the moment a

dangerous weapon is used is alone sufficient to show the

defendant's intent to commit assault and battery by means of

that dangerous weapon.    Ibid.   Accord Lugo, 89 Mass. App. Ct. at

233.   Were the rule otherwise, assailants who participate in a

group attack would be insulated from criminal liability where it

is not possible to determine which one used which weapon or

inflicted which injuries.    But in a joint venture situation, our

law does not require the Commonwealth to prove who actually

committed the crime and who aided and abetted it.     See Zanetti,

454 Mass. at 468.    Thus, it is enough here that the defendant

was consciously participating in the assault at the point when

either he or Hilerio used the pavement as a dangerous weapon.

See Sexton, 425 Mass. at 152; Lugo, 89 Mass. App. Ct. at 233.
                                                                    23


     Against this legal backdrop, the jury's finding that the

defendant did not withdraw from the conflict is critical, and

our reliance on that finding does not "eliminate[] the shared

intent requirement," as the dissent posits.     Post at         .

Again, once the jury determined that the defendant kicked Downs,

no view of the evidence would have allowed them to conclude that

he was anything other than an active participant in the conflict

when, moments earlier, Downs was thrown to the pavement.

Contrary to the dissent's view, see post at          , it is of no

legal consequence that the kicking occurred immediately after

the assault with the pavement, as compared to Sexton where the

two acts appeared to have occurred simultaneously.    What matters

is whether the defendant was consciously acting together with

Hilerio during the assault with the pavement.    The verdicts

returned by the jury, in light of the evidence presented, compel

the conclusion that he was.

     In reaching the result that we do, we do not, as the

dissent puts it, "in effect usurp the jury's function."     Post

at       .   Rather, we "in typical appellate-court fashion,

ask[] whether the record contains evidence that could rationally

lead to a contrary finding with respect to the omitted element."

Neder, 527 U.S. at 19.   Here, based on the evidence and the

verdicts that the jury actually returned, we are confident that

the error in the instruction did not materially influence the
                                                                     24


outcome of the trial.     That is, this is not the "extraordinary

situation where . . . we are left with uncertainty that the

defendant's guilt has been fairly adjudicated."     Chase, 433

Mass. at 299.

    4.     Failure to give "no adverse inference" instruction.

Finally, the defendant argues that the trial judge erred in

failing to instruct the jury that they could not draw an adverse

inference from the defendant's decision not to testify.     Before

the close of the Commonwealth's case, the defendant requested

such an instruction, but the judge, it appears inadvertently,

did not give one.     Because the defendant did not bring the

omission to the judge's attention, our standard of review again

is whether there is a substantial risk of a miscarriage of

justice.     See Commonwealth v. Dussault, 71 Mass. App. Ct. 542,

544 (2008).

    We discern no such risk.      The judge gave a clear

instruction in his opening remarks to the venire that the

defendant had "an absolute right not to testify" and no

"negative inference" could be drawn from his decision.     See

Commonwealth v. Cintron, 438 Mass. 779, 786 (2003) (instructions

given to venire "will be considered along with the judge's final

instructions in deciding whether the instructions were

correct").    In his opening instructions to the jury, the judge

reiterated that the defendant had "no obligation, no burden" to
                                                                    25


call witnesses or offer evidence.   And although in the final

charge the judge did not use the specific words "adverse

inference," he carefully instructed on the presumption of

innocence and then stated:   "The presumption of innocence also

means that no person ever has to prove his innocence.    No person

charged with a crime ever has to explain anything or prove

anything to a jury.   Exactly the contrary is true."    Considering

these instructions as a whole, we view them as similar to those

that the Supreme Judicial Court has held to "satisf[y] the

requirement for an instruction minimizing the danger that the

jury will draw an adverse inference from the defendant's

decision not to testify."    Commonwealth v. Gilchrist, 413 Mass.

216, 219 (1992).   Cf. Commonwealth v. Feroli, 407 Mass. 405,

410-411 (1990) (no substantial likelihood of miscarriage of

justice where judge did not use specific words "no adverse

inference" but did instruct that "defendant has the absolute

right to remain passive and require the Commonwealth to prove

its case beyond a reasonable doubt").

    Moreover, it is fair to say that the Commonwealth's case

was strong, and defense counsel's failure to object to the

omission of the instruction suggests that it had minimal

significance in the overall context of the trial.   In fact, we

think it plausible, as the Commonwealth argues, that counsel

could have made a tactical decision not to object in order to
                                                                   26


draw the jury's attention away from "the question why the

defendant decided not to assist the jury in their fact-finding

function" and to focus them instead on the three witnesses who

testified on his behalf.   Commonwealth v. Buiel, 391 Mass. 744,

746-747 (1984).   See Dussault, 71 Mass. App. Ct. at 545.   And

unlike in Commonwealth v. Botelho, 87 Mass. App. Ct. 846, 852-

853 (2015), on which the defendant heavily relies, the

prosecutor in her closing argument did not comment on the

defendant's decision not to testify.   In this situation we can

conclude with confidence that the omission did not materially

affect the jury's verdicts.

                                    Judgments affirmed.
     RUBIN, J. (dissenting).    The jury in this case were not

instructed on an element of the offense of assault and battery

by means of a dangerous weapon (to wit, pavement) causing

serious bodily injury.   They were not told that, assuming the

defendant was not the principal, in order to convict him as a

joint venturer in the commission of the crime with which he was

charged, they were required to find beyond a reasonable doubt

that the defendant shared with the principal, Roberto Hilerio,

the intent to use a dangerous weapon when the principal did so

by hurling the victim to the pavement.   See Commonwealth v.

Zanetti, 454 Mass. 449, 466 (2009) (judge must instruct jury

that conviction of crime as joint venturer requires proof beyond

reasonable doubt that "the defendant knowingly participated in

the commission of the crime charged . . . with the intent

required for that offense").1   Indeed, they were told they could

convict him if he merely had the intent to assault and batter,


     1 As the majority describes, although the jury could also
have found the defendant guilty as the principal, the evidence
would have supported a finding that Hilerio was the individual
who threw the victim to the ground. Thus, as the majority
concludes, because there was a general verdict, we must assess
the adequacy of the instructions on both possible theories of
conviction, principal and joint venturer liability, since the
failure to give a correct instruction as to both theories is
constitutional error. See Commonwealth v. Bolling, 462 Mass.
440, 450 (2012) (failure to properly instruct on both theories
is error); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7
(2001) (omitting essential element of crime in jury instruction
is constitutional error).
                                                                     2


which, the overwhelming evidence showed, he certainly did.

Because no objection was made to the inadequacy of the

instruction on intent, we are required to determine whether the

failure to instruct the jury that they were required to find

this element beyond a reasonable doubt created a substantial

risk of a miscarriage of justice.2    Under settled law, because

the evidence did not compel a finding that the defendant had the

requisite intent, the error did create a substantial risk of a

miscarriage of justice.     See Commonwealth v. Redmond, 53 Mass.

App. Ct. 1, 8 (2001).     Because the court majority finds to the

contrary only by effectively replacing the shared intent

requirement for joint venturers with respect to use of a

dangerous weapon with a weaker requirement that they were

already "consciously acting together" with the principal, I must

respectfully dissent.

     When we uphold the conviction of an individual in the

absence of a jury instruction on an essential element of the

offense, we in effect usurp the jury's function.     An individual

may be found guilty of a crime, of course, only after a finding


     2 The Commonwealth does not argue that the failure to object
was a reasonable tactical decision of trial counsel, see
Commonwealth v. Silva, 431 Mass. 401, 405 (2000) (defendant's
trial strategy is relevant to substantial risk analysis), or
that this was "invited error." Commonwealth v. Knight, 37 Mass.
App. Ct. 92, 99-100 & n.2 (1994) (when defendant specifically
requests instruction at trial, defendant may not challenge
instruction on appeal).
                                                                     3


that each element of the offense has been proven has been made

by a jury, not by a panel of appellate judges who have not heard

the live testimony or deliberated about the evidence as jurors

do.     And, of course, it is a bedrock principle of due process

that one may not be convicted of a crime, with, among other

things, the attendant loss of liberty, unless each essential

element of the offense has been proven to the jury beyond a

reasonable doubt.     See In re Winship, 397 U.S. 358, 364 (1970).

When we uphold a conviction in these circumstances, by

definition the jury, which has not been instructed on an element

of the offense, has not explicitly found it proven beyond a

reasonable doubt.

      Thus, although our cases hold that not every failure to

instruct on an essential element of the offense creates a

substantial risk of a miscarriage of justice, in light of the

fundamental nature of such an error, a substantial risk of a

miscarriage of justice must be found unless the presence of that

element can be "ineluctably inferred" from the evidence,

Commonwealth v. Azar, 435 Mass. 675, 688 (2002) (quotation

omitted), that is, unless the evidence "required the jurors to

find" the essential element on which they were not instructed.

Ibid.

      The rule does not create a "presum[ption,]" ante

at           n.9.   As in all cases of unpreserved error, the
                                                                     4


burden to show a substantial risk of a miscarriage of justice

lies with the defendant.     But the law is clear.   As Justice

Grasso wrote in Commonwealth v. Redmond, 53 Mass. App. Ct. at 8,

a substantial risk of a miscarriage of justice is created by

failure to instruct on an element of the offense unless "the

only permissible inference" from the evidence is that the

element was present.     The defendant's burden in this

circumstance thus is to show merely that that is not the only

permissible inference.     This is what creates the requisite

"uncertainty that the defendant's guilt has been fairly

adjudicated," that requires reversal.     Commonwealth v. Chase,

433 Mass. 293, 299 (2001).

       Thus, while viewed with a wide-angle lens it may be an

"extraordinary situation" in which we find a substantial risk of

a miscarriage of justice, ibid., where the judge fails to

instruct the jury on an essential element of the offense –-

itself, I hope an extraordinary situation –-     it is an ordinary

one.    Unsurprisingly, both the Supreme Judicial Court and our

court conclude routinely that that such a failure has created

such a risk.    Indeed, the Supreme Judicial Court has reached

such a conclusion without even mentioning, let alone analyzing,

the possibility that failure to instruct on an essential element

of the offense might not create such a risk, see Commonwealth v.

Paquette, 475 Mass. 793, 802 (2016), and we have made clear that
                                                                     5


in at least some circumstances when a jury is not charged on,

and therefore has not found, an essential element of the

offense, a substantial risk of a miscarriage of justice is

"inherent."    Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 492

(2013).

    While I agree with the court majority that the evidence in

this case would have supported a finding that the defendant, if

he was acting as a joint venturer and not a principal, shared

the intent of the principal, the evidence does not compel such a

finding.

    The court majority does not conclude otherwise.     Instead it

asks a different question, one that eliminates the shared intent

requirement:   whether the defendant consciously acted together

with the principal throughout the assault and battery or,

instead, "withdrew from the rapidly unfolding conflict before

[the victim] was thrown to the pavement."    Ante at         .

Because this is the question it asks, the court majority then

suggests that, given the other verdicts, the only way the

defendant could not have had the intent required would be if he

"withdrew from the . . . conflict before Downs was thrown to the

pavement, then returned to kick him moments later," a most

unlikely scenario.

    The court majority concludes unsurprisingly that the jury's

other verdicts demonstrate that the jury found the defendant did
                                                                     6


not withdraw in this exceedingly implausible way.     It concludes

that "by convicting the defendant of kicking [the victim],"

after he was thrown to the pavement, "the jury had to have found

that [the defendant] 'consciously acted together' with Hilerio

throughout the assault, including 'at the climactic moment' when

[the victim] was thrown to the pavement."   Ante at          ,

quoting from Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).

This, the majority concludes, demonstrates there was no

substantial risk of a miscarriage of justice, regardless of

whether the defendant actually had the intent to use a dangerous

weapon at the moment when (by hypothesis) Hilerio threw the

victim to the pavement.

    But to convict the defendant on the joint venture theory,

the jury were required, as the majority explains elsewhere in

its opinion, not merely to find that the parties "consciously

acted together," before and after the climactic moment, or that

the defendant did not withdraw prior to it, but to find that the

defendant had the intent at the moment of the principal throwing

the victim to the pavement to assault and batter the victim by

means of a dangerous weapon.   Since the use of the pavement was

the first use of a dangerous weapon in the assault, if Hilerio

was the principal the defendant might at that moment not have

had the intent to use a dangerous weapon not because he

withdrew, but because he had not yet formed the intent to use a
                                                                     7


dangerous weapon at the time when Hilerio suddenly acted.     That

the defendant had acted together with Hilerio prior to this

moment demonstrated only an intent to assault and batter; that

the defendant had an intent to use a dangerous weapon (his shod

foot) afterward suffices to support a finding that he had the

requisite shared intent at the prior time when the victim was

thrown to the ground, but it does not compel such a conclusion.

Thus, in holding that the necessary implication of the defendant

"consciously acting together" with Hilerio both before and after

the victim was thrown to the pavement is that the defendant had

the requisite intent to be convicted as a joint venturer for

throwing the victim to the pavement, the majority reads the

shared intent requirement out of its analysis.

    An examination of the defendant's conviction for kicking

the victim may make the point more clearly.   The majority and I

agree that the critical evidence necessary to support a finding

beyond a reasonable doubt that the defendant shared the

requisite intent is the defendant's own assault of the victim

with a dangerous weapon, his shod foot.   See ante at          .

But this conduct came after the victim was thrown to the

pavement, the first use of a dangerous weapon against the

victim.   Whether, at the "climactic moment" when the victim was

thrown to the pavement the defendant already had an intent to

utilize a dangerous weapon, or instead was surprised by such use
                                                                     8


of the pavement, and developed his own intent only afterward, is

thus a question for the jury.     The finding that he shared the

principal's intent at that moment was neither "required" nor did

the evidence make it "ineluctable."    It was not the only

inference the jury could have drawn.    See Redmond, 53 Mass. App.

Ct. at 8.    Therefore the failure to instruct on intent created a

substantial risk of a miscarriage of justice.

      The court majority may be read to suggest that if I am

correct, "assailants who participate in a group attack would be

insulated from criminal liability where it is not possible to

determine which one used which weapon or inflicted which

injuries."   Ante at         .   But this conflates sufficiency of

the evidence with the question of whether failure to instruct

creates a substantial risk of a miscarriage of justice.      Of

course assailants in a group attack can be, and routinely are,

convicted as joint venturers (just as, on retrial, the defendant

may be convicted here), so long as a jury actually finds the

assailants share the requisite intent with the principal.     The

evidence here (and in all such similar cases) is sufficient to

support such a finding.   It just does not in this case compel

it.   And therefore, because, and only because, the jury were

erroneously instructed they did not have to find shared intent,

the defendant is entitled to a new trial on this charge.
                                                                       9


    Commonwealth v. Sexton, 425 Mass. at 152, to the extent it

is relevant –- the court there did not hold that the jury were

required to find the requisite intent, only that there was

sufficient evidence to support such a finding –- supports my

analysis and my conclusion.   The Supreme Judicial Court

explicitly noted there that the defendant "may not initially

have had knowledge that [the principal] intended to use the

pavement to effectuate the attack."      Ibid.   It stated, however,

that it was "apparent" that the defendant shared the principal's

intent, but only because "the defendant continuously kicked and

punched [the victim] while [the principal] repeatedly slammed

[the victim's] head into the pavement."      Ibid.   The critical

fact that made the defendant's shared intent to use the pavement

as a dangerous weapon apparent in that case was that the

principal slammed the victim's head against the pavement not

only before, but after the defendant himself began kicking the

victim.   By contrast, the court recognized that at the time of

the principal's initial use of the pavement as a dangerous

weapon, the defendant, as here, may not have had sufficient

knowledge to share his intent.   Ibid.

    Because evidence is absent here that ineluctably requires a

finding of shared intent at the climactic moment when, by

hypothesis, Hilerio threw the victim to the ground, under our

case law, the failure to instruct the jury properly on the
                                                                10


essential element of intent with respect to the one charge at

issue created a substantial risk of a miscarriage of justice.

Because I conclude as a consequence that there must be a new

trial on this charge, I must respectfully dissent.
