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SJC-11616

                     COMMONWEALTH vs. AMANDA KELLY
                      (and eleven companion cases1).



         Plymouth.      October 7, 2014. - February 20, 2015.

  Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                            & Hines, JJ.


Assault or Battery for the Purpose of Intimidation. Civil
     Rights. Practice, Criminal, Instructions to jury,
     Duplicative convictions, Lesser included offense.



     Indictments found and returned in the Superior Court
Department on August 14, 2008.

     The cases were tried before Paul E. Troy, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Kirsten A. Zwicker Young (Glen A. Tagliamonte     with her) for
Amanda Kelly.
     Meghan E. Tafe Vadakekalam for Christopher M.     Bratlie.
     Thomas C. Foley for Kevin P. Shdeed.
     Kristin Freeman, Assistant District Attorney,     for the
Commonwealth.
     Steven M. Freeman, Melissa Garlick, Lauren A.     Jones, & Seth
M. Marnin, of New York, & Michael N. Sheetz & Adam     S.

     1
       Five against Amanda Kelly, four against Christopher M.
Bratlie, and two against Kevin P. Shdeed.
                                                                    2

Gershenson, for Anti-Defamation League & others, amici curiae,
submitted a brief.


     SPINA, J.   This case arises from events that transpired

shortly after midnight on June 12, 2008, during a house party in

Marshfield where multiple guests, who are Caucasian, committed

acts of physical violence against Tizaya Robinson, who is

African-American.   Following a jury trial in the Superior Court,

the defendant, Amanda Kelly, was convicted of, among other

offenses, a violation of civil rights with bodily injury, G. L.

c. 265, § 37, and assault and battery for the purpose of

intimidation resulting in bodily injury, G. L. c. 265, § 39 (b).2

Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed,

each were convicted of a violation of civil rights without

bodily injury, and assault and battery for the purpose of

intimidation without bodily injury.   Bratlie also was convicted

of assault and battery as a lesser included offense of assault

and battery by means of a dangerous weapon (shod foot), and

assault and battery.   All three defendants appealed their

convictions to the Appeals Court, and we transferred their cases

to this court on our own motion.   Principal among the several


     2
       Amanda Kelly also was convicted of assault and battery by
means of a dangerous weapon (stick), G. L. c. 265, § 15A (b);
assault and battery by means of dangerous weapon (shod foot);
assault and battery by means of a dangerous weapon (knife) as a
lesser included offense of aggravated assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (c); and
assault and battery, G. L. c. 265, § 13A (a).
                                                                     3

claims of error is the defendants' contention that the judge

failed to instruct the jury properly that in order to convict

the defendants of assault and battery for the purpose of

intimidation, the jury must find that race was a "substantial

factor" motivating the commission of the unlawful conduct.     We

conclude that because the Legislature did not quantify the

language of G. L. c. 265, § 39, in such terms, the judge was not

required to so instruct the jury.    Accordingly, for this reason,

as well as others that we shall discuss, Kelly's convictions are

affirmed, Shdeed's convictions are affirmed, and Bratlie's

convictions are affirmed in part and vacated in part.3

     1.   Background.    We summarize the facts in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), reserving certain details for our

discussion of the issues raised.

     Shortly before midnight on the night of June 11, 2008,

Robinson and two friends, Christina Sacco and Korrie Molloy,

went to a party at a home on Careswell Street in Marshfield.

Not long after their arrival, Jay Rains, who is Caucasian,

approached Robinson and asked him if he had a problem with one

of Rains's friends.     Robinson replied that he did not know the

     3
       We acknowledge the amicus brief submitted by the Anti-
Defamation League, Gay & Lesbian Advocates & Defenders, the
Lawyers' Committee for Civil Rights and Economic Justice,
MassEquality, the Massachusetts Black Lawyers Association, the
Massachusetts LGBTQ Bar Association, and the South Asian Bar
Association of Greater Boston.
                                                                      4

person about whom Rains was speaking.    Joshua Wigfall, who is

African-American, interceded, told Rains to leave Robinson

alone, and placed himself between the two men.    Rains repeatedly

called Robinson a "nigger."    Robinson became angry and replied,

"[D]on't talk to me like that.    You don't even know me."

Wigfall then attempted to remove Rains from the property because

Rains was drunk and rowdy, and the two got into an argument that

led to a physical altercation at the end of the driveway of the

house.   Other partygoers gathered around to watch the fight, and

Wigfall punched Rains until he fell to the ground.    Having

prevailed, Wigfall soon left the premises.

    Rains continued yelling, saying the word "nigger," and

asking Robinson why he was still at the party.    Robinson told

Rains to stop using that word, but his request fell on deaf

ears.    Rains and Robinson started arguing.   The three defendants

joined the argument along with other partygoers and, in an

effort to distance himself from the advancing crowd, Robinson

backed down the driveway in the direction of Careswell Street.

Eventually, there were at least five people, and as many as

fifteen people, yelling at and arguing with Robinson, swearing

at him, and calling him a "nigger."    All of the individuals in

this crowd were Caucasian.    Robinson removed his sweatshirt so

that no one could pull it over his head in the event of a fight.

He continued to back out of the driveway and into Careswell
                                                                     5

Street, moving in the direction of the Garlic Restaurant, which

was diagonally across the street from the house where the party

was being held.    As the crowd surged toward Robinson, he removed

a can of dog repellent from his pocket and sprayed them.

    The crowd became angry and started chasing after Robinson.

Kelly and several other partygoers punched Robinson.    He fell to

the ground, got back up, sprayed more dog repellent at them, and

quickened his pace down Careswell Street.   The crowd then became

enraged, screaming and running after Robinson, calling him a

"stupid nigger," and yelling "kill that fuckin' nigger."

Robinson eventually reached the parking lot of the Garlic

Restaurant, where Shdeed was walking back and forth with a stick

in his hands, yelling "nigger."   Rains punched Robinson, and he

fell to the ground.   Robinson arose, climbed over a wooden fence

that was around the parking lot, and ended up back on Careswell

Street.   Ten to fifteen people closed in on Robinson and, when

he ran out of dog repellent, jumped him.

    Robinson saw a man approaching him with a knife.       He was

hit in the face and head with something hard (probably an

elbow), and he was knocked to the ground.   As the crowd

converged on him, Robinson curled up in a fetal position to

protect himself.   Kelly, Bratlie, Shdeed, and numerous other

individuals simultaneously kicked and punched Robinson while he

was on the ground.    Kelly repeatedly kicked him in the face and
                                                                     6

jumped up and down on his head.    Shdeed struck Robinson with a

large stick five or six times using tremendous force while

saying, "I'm going to kill you, you fucking nigger.    I'm going

to kill you.    How do you like that, you fucking nigger."

Robinson also had a bottle broken over his head.    This attack

lasted for several minutes and, apart from Sacco, none of the

onlookers came to Robinson's aid.    Kelly Orlando, who was

housesitting nearby and witnessed this attack on Robinson, made

a 911 telephone call to the Marshfield police department.     When

someone in the crowd announced that the police were coming,

everyone ran away.    Officers arrived on the scene; Amanda Kelly

and Shdeed, among others, were placed under arrest.    Bratlie was

arrested the following day at his home.

    Robinson, who was covered in blood and appeared lifeless,

was taken to South Shore Hospital by Sacco.    He had been stabbed

in the left leg, left forearm, and right elbow; he sustained

nerve damage in his hand and foot; and he had multiple "lumps"

on his head.    Robinson subsequently was transferred to Brigham

and Women's Hospital, where he spent a few more days recovering

from his injuries.    As of the time of trial in November, 2011,

Robinson continued to suffer from the lingering effects of his

injuries, including nerve damage in his hand and foot.

    2.   Jury instructions on racial motivation under G. L.

c. 265, § 39.   General Laws c. 265, § 39, is known as a "hate
                                                                   7

crime" statute.    Commonwealth v. Barnette, 45 Mass. App. Ct.

486, 489 (1998).    At the time of the defendant's trial, § 39 (a)

stated, in pertinent part:    "Whoever commits an assault or a

battery upon a person . . . with the intent to intimidate such

person because of such person's race, color, religion, national

origin, sexual orientation, or disability shall be punished

. . ." (emphasis added).4    Further, § 39 (b) of the statute

provides, in relevant part:    "Whoever commits a battery in

violation of this section and which results in bodily injury

shall be punished . . . ."

     When the trial judge instructed the jury on a violation of

G. L. c. 265, § 39, he stated that the Commonwealth had to prove

three elements beyond a reasonable doubt:    "First, that the

defendants committed an assault and battery; second, that the

defendants did this act with the specific intent to intimidate

[Robinson] because of [his] race, color, religion, national

origin, sexual orientation or disability; [and] third, that the

assault and battery resulted in bodily injury."    The judge

explained that "intent" refers to "a person's objective or

purpose," and that "specific intent" is "the act of

concentrating or focusing the mind for some perceptible period.

It is a conscious act with the determination of the mind to do


     4
       Effective July 1, 2012, G. L. c. 265, § 39 (a), was
amended to also include gender identity. See St. 2011, c. 199,
§ 8.
                                                                    8

an act."   The judge then reiterated that the jury must determine

"whether the Commonwealth has proved beyond a reasonable doubt,

as it must, that the defendants acted with the specific intent

to intimidate Tizaya Robinson because of his race or color"

(emphasis added).

     During deliberations, the judge received the following

question from the jury:    "Assault and battery for purposes of

intimidation solely because of race or in part because of race?"

In response to the question, the judge first reread the three

elements of the offense that the Commonwealth was required to

prove beyond a reasonable doubt.    The judge then instructed the

jury as follows:    "I said the Commonwealth must prove beyond

reasonable doubt that the defendants did this act with the

specific intent to intimidate [Robinson] because of [his] race,

color, religion, national origin, sexual orientation or

disability but this reason does not have to be the sole reason

for the assault and battery" (emphasis added).    All of the

defendants objected to this supplemental instruction.5


     5
       Having been "let go" by the judge after the jury started
deliberations, the lawyers for Bratlie and Shdeed were not
present in the court room when the judge gave the supplemental
instruction. However, counsel for Kelly stated for the record
that she had spoken with both attorneys about the jury's
question, that they had discussed the applicable case law, and
that they all were of the opinion that the judge simply should
reread the instruction and advise the jury to follow the law.
When counsel for Kelly objected to the supplemental instruction
that was given, the judge noted the objection with respect to
all three defendants.
                                                                   9

     On appeal, the defendants contend that the judge erred when

he instructed the jury that race does not have to be the sole

reason for the alleged crime.   The defendants acknowledge that

the judge's original instructions on this charge were correct.

However, in their view, the judge's failure to reinstruct the

jury on the definition of specific intent,6 coupled with his

supplemental instruction on racial motivation, may have

permitted the jury to infer that they were required to convict

the defendants of violating G. L. c. 265, § 39, if race played

even a small or insignificant role in the assault and battery.

More broadly, the defendants contend that jury instructions

pertaining to assault and battery with the intent to intimidate

should specify that the jury must find that race was a

"substantial factor" motivating the commission of the offense.

We disagree.

     Where, as here, a defendant raises a timely objection to a

judge's instruction to the jury, we review the claim for

prejudicial error.   See Commonwealth v. Vuthy Seng, 456 Mass.

490, 502 (2010).   Appellate courts "conduct a two-part test:

'whether the instructions were legally erroneous, and (if so)


     6
       After thoroughly discussing the jury's question with
counsel for Kelly and the Commonwealth, and informing them of
the manner in which he would respond to the jury, the judge
asked whether the parties would like for him to reread the whole
instruction. Counsel for Kelly stated that the judge should
"just address the elements," and not "seek to define them
again."
                                                                    10

whether that error was prejudicial.'"    Kelly v. Foxboro Realty

Assocs., LLC, 454 Mass. 306, 310 (2009), quoting Masingill v.

EMC Corp., 449 Mass. 532, 540 n.20 (2007).    See Commonwealth v.

Cruz, 445 Mass. 589, 591 (2005).   An error is not prejudicial if

it "did not influence the jury, or had but very slight effect

. . . . But if one cannot say, with fair assurance, after

pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error, [then] it is impossible to conclude that

substantial rights were not affected."    Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v.

Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).   See Cruz, supra.

Trial judges have "considerable discretion in framing jury

instructions, both in determining the precise phraseology used

and the appropriate degree of elaboration."    Commonwealth v.

Newell, 55 Mass. App. Ct. 119, 131 (2002).    Likewise, they have

discretion to determine "[t]he proper response to a jury

question," thereby "furthering the [jury's] difficult task of

coming to a unanimous verdict."    Commonwealth v. Waite, 422

Mass. 792, 807 n.11 (1996).

    Generally speaking, a hate crime is "a crime in which the

defendant's conduct was motivated by hatred, bias, or prejudice,

based on the actual or perceived race, color, religion, national

origin, ethnicity, gender, or sexual orientation of another
                                                                    11

individual or group of individuals."     Commonwealth v. Anderson,

38 Mass. App. Ct. 707, 709 n.5 (1995), quoting H.R. 4797, 102d

Cong., 2d Sess. (1992).    See G. L. c. 22C, § 32 (defining

"[h]ate crime" for purposes of G. L. c. 265, §§ 37 and 39).

"[H]ate crime laws such as G. L. c. 265, § 39, operate to

'enhance the penalty of criminal conduct when it is motivated by

racial hatred or bigotry.'"    Barnette, 45 Mass. App. Ct. at 489,

quoting Anderson, supra.     "It is not the conduct but the

underlying motivation that distinguishes the crime."     Barnette,

supra.   In the context of the present appeal, we analyze G. L.

c. 265, § 39, to determine whether the racial animus necessary

for conviction under the statute must be quantified, and, in

turn, whether the judge's supplemental jury instruction was

erroneous.

    "The words of a statute are the main source from which we

ascertain legislative purpose . . . ."     Foss v. Commonwealth,

437 Mass. 584, 586 (2002).    More specifically, courts "construe

a statute in accord with 'the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language, considered in connection with

the cause of its enactment, the mischief or imperfection to be

remedied and the main object to be accomplished, to the end that

the purpose of its framers may be effectuated.'"     Champigny v.

Commonwealth, 422 Mass. 249, 251 (1996), quoting Telesetsky v.
                                                                    12

Wight, 395 Mass. 868, 872-873 (1985).     Courts must follow the

plain language of a statute when it is unambiguous and when its

application "would not lead to an 'absurd result,' or contravene

the Legislature's clear intent."     Commissioner of Revenue v.

Cargill, Inc., 429 Mass. 79, 82 (1999), quoting White v. Boston,

428 Mass. 250, 253 (1998).

    General Laws c. 265, § 39, criminalizes a particular kind

of unlawful conduct -- the assault or battery of an individual

arising from the perpetrator's specific intent to intimidate

such person because of that person's membership in a protected

group.   See Barnette, 45 Mass. App. Ct. at 489-491.    Where, as

here, an assault or battery is purportedly based on race, the

requirement of specific intent ensures that a defendant's

conduct, in fact, is motivated by racial hostility, and

precludes conviction in those circumstances where race is merely

an incidental component of the crime.    See Screws v. United

States, 325 U.S. 91, 104 (1945) (one who acts with specific

intent "is aware that what he does is precisely that which the

statute forbids").   The Legislature established the scope of a

defendant's racial motivation when it stated that the

defendant's unlawful conduct must be "because of" a victim's

race.    G. L. c. 265, § 39 (a).   If the Legislature had wanted to

quantify more explicitly the degree of racial hostility

necessary for conviction under the statute, it would have
                                                                   13

expressly stated that race must be the "sole" factor or a

"substantial" factor in the defendant's conduct.   See generally

Commonwealth v. Anderson, 461 Mass. 616, 631, cert. denied, 133

S. Ct. 433 (2012); Dartt v. Browning-Ferris Indus., Inc.

(Mass.), 427 Mass. 1, 9 (1998).   The Legislature did not cabin

the language of G. L. c. 265, § 39 (a), in this manner.

Contrast, e.g., G. L. c. 269, § 14A ("Whoever telephones another

person . . . , repeatedly, for the sole purpose of harassing,

annoying or molesting the person or the person's family, . . .

shall be punished . . ." [emphasis added]).   In our view, the

Legislature recognized the possibility of additional factors

playing a role in the perpetration of an assault or a battery

that occurs "because of" the victim's race.   For example, in

this case, one such factor could have been Robinson's use of dog

repellent on individuals who were converging on him in a

threatening manner in the driveway of the home on Careswell

Street.   By requiring proof that a defendant's actions were

specifically motivated by racial animus, the Legislature has

ensured that the "hate crime" classification is not applied to

individuals whose actions do not fall within the purview of

G. L. c. 265, § 39 -- that is to say, individuals who committed

an assault or a battery in circumstances where the race of the

victim did not play a role in the perpetration of the crime.
                                                                    14

     The burden is on the Commonwealth to prove that a defendant

acted with the specific intent to intimidate a person because of

race.    See Commonwealth v. Ogden O., 448 Mass. 798, 805 (2007).

At trial, a defendant has the opportunity to present his or her

defense and to demonstrate to the jury that, whatever the facts,

he or she did not possess the requisite specific intent under

G. L. c. 265, § 39.   It then is incumbent on the jury to decide

the reasons for the defendant's alleged unlawful act.    See

Commonwealth v. Federico, 425 Mass. 844, 848 (1997) (jury given

deference as "the final judge of credibility").   Notwithstanding

the possibility of other motivating factors, where a jury can

find, beyond a reasonable doubt, that a defendant engaged in

unlawful conduct "because of" a victim's race, that is

sufficient for a conviction under G. L. c. 265, § 39.7   See


     7
       The so-called hate crimes reporting act, G. L. c. 22C,
§§ 32-35, provides for the collection, analysis, and public
dissemination of hate crime data. See 501 Code Mass. Regs.
§ 4.01 (1993). Pursuant to regulations promulgated by the
colonel of the State police in accordance with G. L. c. 22C,
§ 33, enumerated bias indicators "can assist law enforcement
officers in determining whether a particular crime should be
classified as a hate crime." 501 Code Mass. Regs. § 4.04(1)
(1993). "Bias indicators need not establish that the
predominant purpose of a perpetrator's actions was motivated by
hatred or bias. It is sufficient for classification of an
incident as a hate crime that a perpetrator was acting out of
hatred or bias, together with other motives; or that a bias
motive was a contributing factor, in whole or in part, in the
commission of a criminal act." Id. at § 4.04(2). These
provisions plainly suggest that hate crimes occur where bias on
the basis of race, religion, gender, sexual orientation, or
handicap is a contributing factor, rather than the sole factor,
in a perpetrator's actions.
                                                                     15

United States v. Piekarsky, 687 F.3d 134, 142-145 (3d Cir.),

cert. denied, 133 S. Ct. 549 (2012), and cases cited (where

Federal statute criminalizes conduct that interferes with,

intimidates, or injures individual "because of" race, 42 U.S.C.

§ 3631 [2012], government need not prove that race was sole or

primary motivation behind assault because presence of other

motives, including personal animus, anger, or revenge, does not

make defendant's conduct any less a violation of statute).     Cf.

Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 643 (2013)

(evidence of long-standing hostility between defendant and

victim does not preclude inference of intent to intimidate;

defendant may have acted out of general hostility and, at same

time, intended to intimidate victim as witness); United States

v. Technodyne LLC, 753 F.3d 368, 385 (2d Cir. 2014) ("It is well

established that a defendant accused of [a specific intent]

crime may properly be convicted if his intent to commit the

crime was any of his objectives").   To conclude that racial

animus must be a "substantial factor" motivating the commission

of an assault or a battery would undermine the Legislature's

purpose in punishing more severely all instances of assault or

battery where a defendant's actions were motivated by racial

hatred or bigotry.   See Barnette, 45 Mass. App. Ct. at 489.

Such a conclusion would encourage defendants to allege myriad
                                                                   16

other motivating factors for their unlawful conduct so that it

would not be deemed a hate crime.

     Our interpretation of G. L. c. 265, § 39 (a), is consistent

with cases construing G. L. c. 265, § 37, which proscribes,

among other actions, the use of force or threat of force to

interfere with any other person in the exercise of any right or

privilege secured by Federal or State law.8   We recognize, as

Bratlie correctly points out, that G. L. c. 265, § 37, is a more

expansive statute than G. L. c. 265, § 39.9   Nonetheless, both

are part of a broader statutory scheme to criminalize violations

of an individual's civil rights.    In Commonwealth v. Zawatsky,

41 Mass. App. Ct. 392, 398 (1996), a case in which the

defendants were prosecuted for so-called "gay bashing" under

G. L. c. 265, § 37, the court pointed out that violence of the

kind prohibited by G. L. c. 265, § 39, "deprives the victim of a

     8
       General Laws c. 265, § 37, provides, in relevant part:
"No person, whether or not acting under color of law, shall by
force or threat of force, willfully injure, intimidate or
interfere with, or attempt to injure, intimidate or interfere
with, or oppress or threaten any other person in the free
exercise or enjoyment of any right or privilege secured to him
by the constitution or laws of the commonwealth or by the
constitution or laws of the United States."
     9
       By its terms, G. L. c. 265, § 37, authorizes criminal
penalties for the wilful violation of another person's rights or
privileges secured by the Constitution or laws of the United
States or of the Commonwealth. Section 37 does not address the
underlying motivation of the perpetrator in committing the
offense. In contrast, G. L. c. 265, § 39, requires that the
perpetrator of an assault or a battery have acted because of a
victim's race, color, religion, national origin, sexual
orientation, gender identity, or disability.
                                                                  17

right or privilege secured to the victim under the laws of the

Commonwealth and, therefore, violates G. L. c. 265, § 37."

Moreover, as relevant to our analysis of § 39, the court in

Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124 (1987), a

case in which the defendants were convicted of violating the

civil rights of three Asian persons, stated that "[t]he

deprivation of civil rights contemplated by G. L. c. 265, § 37,

does not have to be the predominant purpose of the defendant's

acts" (emphasis added).10

     It is well established that "where two or more statutes

relate to the same subject matter, they should be construed

together so as to constitute a harmonious whole consistent with

the legislative purpose."   Board of Educ. v. Assessor of

Worcester, 368 Mass. 511, 513-514 (1975).   See Charland v. Muzi

Motors, Inc., 417 Mass. 580, 583 (1994) ("a statute is to be

interpreted in harmony with prior enactments to give rise to a

consistent body of law").   As is the case with G. L. c. 265,

§ 37, where the deprivation of civil rights does not have to be

the predominant purpose of a defendant's acts, see note 10,

     10
       In his brief, Shdeed has asserted that the jury should
have been instructed that Robinson's race must have been a
"substantial factor" in Shdeed's alleged unlawful conduct not
only for a conviction under G. L. c. 265, § 39, but also for a
conviction under G. L. c. 265, § 37. This argument is without
merit. See Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124
(1987), where the court stated that in order to secure a
conviction under G. L. c. 265, § 37, the deprivation of civil
rights does not have to be the "predominant" purpose of a
defendant's actions.
                                                                    18

supra, we do not construe the language in G. L. c. 265, § 39

(a), to mean that racial hostility must be the "sole" reason or

a "substantial" reason for a defendant's unlawful conduct.    We

decline the defendants' request to quantify the statutory

language in such terms.    All that is required is proof beyond a

reasonable doubt that a defendant acted with the specific intent

to intimidate a person "because of" race, notwithstanding the

presence of any other motive.    G. L. c. 265, § 39 (a).

Accordingly, we conclude that the judge's supplemental

instruction was not erroneous.

    3.     Required findings of not guilty with respect to

violations of G. L. c. 265, §§ 37 and 39.    General Laws c. 265,

§ 37, provides, in relevant part:    "No person, whether or not

acting under color of law, shall by force or threat of force,

willfully injure, intimidate or interfere with, or attempt to

injure, intimidate or interfere with, or oppress or threaten any

other person in the free exercise or enjoyment of any right or

privilege secured to him by the constitution or laws of the

commonwealth or by the constitution or laws of the United

States."    At trial, the Commonwealth proceeded on the theory

that it was Robinson's right to personal security that was

violated by the defendants' actions, and the judge so instructed

the jury.
                                                                  19

    On appeal, Kelly contends that the evidence was

insufficient to permit the jury to find beyond a reasonable

doubt the essential elements of a civil rights violation under

G. L. c. 265, § 37.   Kelly has not challenged the existence of a

right to personal security that is protected by the Constitution

or laws of the United States or of the Commonwealth, but she

argues that Robinson was not exercising or enjoying such a right

when he instigated a physical altercation.   In Kelly's view,

Robinson was not an innocent bystander singled out because of

his race and attacked without provocation.   Rather, he was the

aggressor, initiating hostilities with partygoers by calling

them "whores" and "crackers," and by spraying them with dog

repellent.   As such, Kelly asserts, there was no violation of

Robinson's right to personal security and, therefore, the judge

should have allowed her motion for a required finding of not

guilty as to the indictment charging a civil rights violation

under G. L. c. 265, § 37.   We disagree.

    When reviewing the denial of a motion for a required

finding of not guilty, we consider "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (emphasis in original).

Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443

U.S. 307, 318-319 (1979).   The inferences drawn by the jury from
                                                                    20

the evidence "need only be reasonable and possible and need not

be necessary or inescapable."    Commonwealth v. Longo, 402 Mass.

482, 487 (1988), quoting Commonwealth v. Casale, 381 Mass. 167,

173 (1980).    A conviction may not rest on the piling of

inference upon inference or on conjecture and speculation.    See

Commonwealth v. Swafford, 441 Mass. 329, 339-343 (2004), and

cases cited.   However, the evidence of a defendant's guilt may

be primarily or entirely circumstantial.    See Corson v.

Commonwealth, 428 Mass. 193, 197 (1998); Commonwealth v.

Donovan, 395 Mass. 20, 25 (1985).   "If, from the evidence,

conflicting inferences are possible, it is for the jury to

determine where the truth lies, for the weight and credibility

of the evidence is wholly within their province."    Commonwealth

v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007).

"If a rational jury 'necessarily would have had to employ

conjecture' in choosing among the possible inferences from the

evidence presented, the evidence is insufficient to sustain the

Commonwealth's burden of proving guilt beyond a reasonable

doubt."   Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010),

quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962).

    Viewing the evidence in the light most favorable to the

Commonwealth, the jury could have found that Kelly was part of

the attack on Robinson that started in the driveway of the home

on Careswell Street and ended on the street in front of the
                                                                    21

Garlic Restaurant.    There was testimony from numerous witnesses

that Kelly pushed Robinson out of the driveway, and that she

subsequently kicked and punched him while he was lying in a

fetal position on the ground.   Notwithstanding Kelly's claim

that Robinson had called several of the partygoers "whores" and

"crackers," there was countervailing testimony that he had not

threatened anyone, used racially charged language, or made

derogatory comments toward women.

    It was the province of the jury to assess the credibility

of the witnesses and thereby decide whom to believe.   See Lao,

supra, 443 Mass. at 779.    There is no dispute that Robinson used

dog repellent on several partygoers in the midst of the

altercation.   However, the jury could have found that Robinson

used the repellent in an attempt to either deter or escape from

a group of individuals that was converging on him in a

threatening manner.   Kelly's contention that Robinson was the

aggressor belies the Commonwealth's evidence to the contrary,

and we must view the evidence not in the light most favorable to

Kelly, but in the light most favorable to the Commonwealth.

Based on all of the evidence, the jury reasonably could infer

that Kelly wilfully interfered with Robinson's right to personal

security.   It follows, therefore, that the jury could find

beyond a reasonable doubt that Kelly violated Robinson's civil

rights under G. L. c. 265, § 37.    Accordingly, the judge did not
                                                                   22

err in denying Kelly's motion for a required finding of not

guilty as to that charge.

     In a related vein, Bratlie contends on appeal that the

judge erred in denying his motions for required findings of not

guilty as to the indictments charging assault and battery for

the purpose of intimidation under G. L. c. 265, § 39, and a

civil rights violation under G. L. c. 265, § 37.   He claims

that, absent reliance on conjecture, there was insufficient

evidence to establish his intent, that is to say, to show that

his actions were motivated by, or were because of, race.11

Significantly missing, Bratlie continues, was evidence that he

uttered any statements that specifically demonstrated a racial

animus toward Robinson.12   Moreover, Bratlie asserts that there

was no racial context for his actions given that Robinson had,

among other things, called partygoers "whores" and "crackers,"

and had sprayed them with dog repellent.   In Bratlie's view, the

evidence demonstrated that it was equally likely that his

misconduct was due to Robinson's disruptive behavior at the

party as it was due to Robinson's race, and, consequently, the


     11
       In contrast to G. L. c. 265, § 39, the language of G. L.
c. 265, § 37, does not require an intent to wilfully injure,
intimidate, or interfere with another person's rights or
privileges because of such person's race. See note 8, supra.
     12
       The Commonwealth proceeded on a joint venture theory with
respect to all of the alleged crimes except for a civil rights
violation under G. L. c. 265, § 37, and assault and battery for
the purpose of intimidation under G. L. c. 265, § 39.
                                                                   23

jury would have had to resort to conjecture to determine whether

Bratlie's actions were, beyond a reasonable doubt, racially

motivated.    That being the case, Bratlie argues, the evidence

was insufficient to sustain the Commonwealth's burden of proof,

and his motions for required findings of not guilty should have

been allowed.    We disagree.

     There was no dispute that Bratlie was part of the attack on

Robinson that started in the driveway of the home on Careswell

Street and ended on the street in front of the Garlic

Restaurant.   Christina Sacco testified that Bratlie kicked and

punched Robinson while he was lying in the street.    She also

testified that Bratlie called Robinson a "nigger" during the

early part of the altercation while the partygoers were still in

the driveway.    Further, she stated that she had no trouble

distinguishing Christopher Bratlie from his brother, Devin

Bratlie, who also was at the party but whom Sacco did not see

engaging in the altercation.    One of the partygoers, Korrie

Molloy, testified that "one of the Bratlie boys" was among a

group of partygoers that was punching Robinson after he had been

pushed into Careswell Street.13   Molloy further stated that all


     13
       At certain points in her testimony, Molloy professed an
inability to recall the details surrounding Bratlie's
involvement in the attack on Robinson. Consequently, the
testimony that Molloy had given before the grand jury regarding
what she had observed was read in evidence. On appeal, no party
has claimed that the Daye requirements for admission of grand
jury testimony were not sufficiently met. See Commonwealth v.
                                                                    24

of the individuals in this group were calling Robinson a

"nigger," although she did not specifically name Christopher

Bratlie as one of the members of this group.    During her

testimony the next day, Molloy stated that she did not know if

the Bratlie brother she had observed had been making racial

slurs because she "couldn't hear him specifically."       She did not

"know what his voice sound[ed] like."    However, Molloy testified

that she heard him make those statements earlier "in the other

fight."

       When Molloy's testimony was considered in conjunction with

that of Sacco, the jury reasonably could infer, without

resorting to conjecture, that Christopher Bratlie wilfully

interfered with Robinson's right to personal security, and that

Bratlie committed an assault or a battery on Robinson with the

intent of intimidating him because of his race.    It was entirely

within the province of the jury to deem the equivocal testimony

of Molloy regarding which of the Bratlie brothers was involved

in the altercation not credible.    See Federico, 425 Mass. at

848.    Moreover, even if Bratlie's unlawful conduct also was

attributable to Robinson's purported disruptive behavior at the

party, as he claims, that fact did not invalidate his

convictions.    See Stephens, 25 Mass. App. Ct. at 124.

Accordingly, the judge did not err in denying Bratlie's motions

Daye, 393 Mass. 55, 66 (1984), overruled on other grounds by
Commonwealth v. Cong Duc Le, 444 Mass. 431 (2005).
                                                                  25

for required findings of not guilty as to the indictments

charging assault and battery for the purpose of intimidation and

a civil rights violation.

    4.    Jury instructions on civil rights violation under G. L.

c. 265, § 37.   The trial judge instructed the jury on the

elements comprising a violation of G. L. c. 265, § 37, generally

in accordance with Instruction 6.620 of the Criminal Model Jury

Instructions for Use in the District Court (2009) (Instruction

6.620).   However, when describing the first element that the

Commonwealth was required to prove beyond a reasonable doubt,

namely the "exercise or enjoyment of any right or privilege

secured to [Robinson] by the constitution or laws of the

commonwealth or by the constitution or laws of the United

States," G. L. c. 265, § 37, the judge added the following

language to the model jury instruction:   "As a matter of law,

racially motivated violence violates the right to personal

security enjoyed by all persons no matter their race."   The

judge reiterated this instruction shortly thereafter when he

stated:   "Again, I inform you that as a matter of law all

persons have the right to be secure in their person.   Racially

motivated violence violates the right to personal security

enjoyed by all persons no matter their race."   Finally, the

judge repeated this instruction a third time when he stated that

"the right to personal security . . . is violated by violence
                                                                    26

against a person who is selected as a victim and harmed because

of his or her race.   This right is violated by racially

motivated violence by private persons; that is, persons who are

not acting in an official government capacity."

    Kelly contends for the first time on appeal that these jury

instructions were improper because they relieved the

Commonwealth of its burden of proving that Kelly violated

Robinson's right to personal security.   In her view, the judge's

instructions placed artificial importance on race and suggested

that if it played any role in the motivation behind the

altercation, then Robinson's right to personal security had been

violated.   Kelly points out that the language of G. L. c. 265,

§ 37, includes no reference to a victim's race or other

characteristics.   Therefore, she continues, the race of an

alleged victim should have no greater evidentiary value than any

other evidence with respect to a civil rights violation.    Kelly

asserts that because the jury instructions on this charge

focused on race, the judge improperly conflated a violation of

G. L. c. 265, § 37, with a violation of G. L. c. 265, § 39,

which does require a racial intent.   By so doing, Kelly argues,

the judge confused the jury by suggesting that if a defendant is

found guilty of violating § 39, then the first element of § 37

has been satisfied, thereby relieving the Commonwealth of its
                                                                     27

burden of proof as to that element.     We disagree with Kelly's

interpretation of the judge's instructions.

    We evaluate jury instructions as a whole and interpret them

as would a reasonable juror.    Commonwealth v. Trapp, 423 Mass.

356, 361, cert. denied, 519 U.S. 1045 (1996).       We do not require

that judges use particular words, but only that they convey the

relevant legal concepts properly.     Id. at 359.    Because Kelly

did not object at trial to the jury instructions pertaining to a

civil rights violation under G. L. c. 265, § 37, we review her

claim to determine whether there was an error and, if so,

whether the error created a substantial risk of a miscarriage of

justice.    See Commonwealth v. Belcher, 446 Mass. 693, 696

(2006).    This standard "requires us to determine 'if we have a

serious doubt whether the result of the trial might have been

different had the error not been made.'"     Commonwealth v. Azar,

435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430

Mass. 169, 174 (1999).

    Here, the judge plainly explained that the Commonwealth was

required to prove beyond a reasonable doubt that Robinson was

exercising a protected right or privilege.    It goes without

saying that State and Federal laws protect myriad individual

rights.    The additional language that the judge incorporated

into Instruction 6.620 explained, in specific terms, that, given

the Commonwealth's theory of the case, the right being enjoyed
                                                                   28

by Robinson was one of personal security, and that racially

motivated violence against Robinson would constitute an

infringement on that right.    The elements of G. L. c. 265, § 37,

cannot be divorced from the facts surrounding the altercation on

Careswell Street, and the additional language employed by the

judge simply reflected the context in which Kelly's actions

should be evaluated by the jury.   Moreover, the judge did not

err in stating the general proposition that racially motivated

violence directed at an individual would interfere with that

individual's right to personal security.   See Stephens, 25 Mass.

App. Ct. at 123-124.

    In our view, the judge's instructions did not conflate a

violation of G. L. c. 265, § 37, with a violation of G. L.

c. 265, § 39.   During his general instructions, the judge

informed the jury that they "must consider the Commonwealth's

case against each defendant separately and [they] must consider

each indictment as to each defendant separately."   In his

specific instructions, the judge first explained the distinct

elements of a violation of G. L. c. 265, § 37, and then he

proceeded to describe the elements of a violation of G. L.

c. 265, § 39.   Finally, the judge reiterated at the end of his

instructions that the jury "must consider each indictment

separately."    The fact that the judge explained a violation of

personal security under G. L. c. 265, § 37, in the context of
                                                                   29

racial violence did not relieve the Commonwealth of its burden

of proving all of the elements of that offense.   Moreover, to

the extent that the jury were unclear whether their findings as

to Kelly's violation of § 39 could be used in considering

whether she had violated § 37, the judge gave a supplemental

clarifying instruction.   During deliberations, the judge

received the following question from the jury:    "Should previous

decisions made on indictments influence or be considered when

deciding about other indictments or should each indictment be

considered separately regardless of previous decisions?"    The

judge responded by informing the jury twice that "each

indictment must be decided individually."   We conclude that the

instructions taken as a whole would not have confused a

reasonable juror regarding the law pertaining to a violation of

G. L. c. 265, § 37.   There was no error in the judge's

instructions.

    5.   Duplicative convictions.   Bratlie first contends that

his conviction of assault and battery as a lesser included

offense of assault and battery by means of a dangerous weapon

(shod foot) and his conviction of simple assault and battery are

duplicative because the judge did not instruct the jury that

these offenses must be based on separate and distinct acts.

Bratlie concedes that there was evidence presented at trial that

could have supported separate assault and battery convictions.
                                                                  30

He acknowledges that the jury could have found that he pushed

Robinson out of the driveway, that he tackled Robinson to seize

the dog repellent, that he punched Robinson after tackling him,

and that he kicked Robinson while Robinson was lying in

Careswell Street.    However, in Bratlie's view, the judge's

failure to instruct on separate and distinct acts, or, at the

very least, to make clear to the jury which alleged acts

corresponded to which charges, was fatal to his convictions of

both offenses.   Accordingly, Bratlie argues that one of these

assault and battery convictions must be dismissed as

duplicative.   We agree.

    Where, as here, Bratlie did not raise the issue of

duplicative convictions below, we review his claim to determine

whether there was an error and, if so, whether the error created

a substantial risk of a miscarriage of justice.   See

Commonwealth v. Gouse, 461 Mass. 787, 799 (2012); Commonwealth

v. King, 445 Mass. 217, 225 (2005), cert. denied, 546 U.S. 1216

(2006).   "Assault and battery is a lesser included offense of

assault and battery by means of a dangerous weapon."     Gouse,

supra at 798, quoting Commonwealth v. Jackson, 80 Mass. App. Ct.

528, 529 (2011).    See G. L. c. 265, §§ 13A, 15A (c).

Convictions of greater and lesser included offenses are allowed

when they "rest on separate and distinct acts."    King, supra.

"Whether a defendant's actions constitute separate and distinct
                                                                    31

acts or must be considered a single crime is a question of fact

for the jury to resolve."    Commonwealth v. Vick, 454 Mass. 418,

435 n.16 (2009).

    Convictions of two cognate offenses will be sustained

"where the judge instructs the jury explicitly that they must

find separate and distinct acts underlying the different

charges."   Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753-

754 (2008).   See King, 445 Mass. at 226 (judge properly

instructed jury that forcible rape of child and indecent assault

and battery must rest on separate and distinct acts, each of

which judge carefully described); Commonwealth v. Maldonado, 429

Mass. 502, 509-510 (1999) (judge specifically instructed jury

that convictions of assault and battery by means of dangerous

weapon and murder must rest on separate and distinct acts).     See

also Gouse, 461 Mass. at 799 (no substantial risk of miscarriage

of justice where, although judge did not use exact words

"separate and distinct act," he made clear that two indictments

were based on separate acts, each of which he described with

particularity).    Where, however, the judge does not clearly

instruct the jury that they must find that the defendant

committed separate and distinct criminal acts to convict on the

different charges, the conviction of the lesser included offense

must be vacated as duplicative, even in the absence of an

objection, if there is any significant possibility that the jury
                                                                     32

may have based convictions of greater and lesser included

offenses on the same act or series of acts.     See Commonwealth v.

Thomas, 400 Mass. 676, 681 (1987) (vacating lesser included

offense and stating that appellate court "need not consider

whether the evidence would support a finding of two separate

incidents in this case, because the judge did not instruct the

jury that the convictions must be based on separate acts").       See

also Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989)

(conviction of indecent assault and battery duplicative of

conviction of forcible rape of child where judge did not

instruct jury that convictions must be based on separate acts);

Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150-152 (2003);

Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 325 (1999).

    We reiterate that we review here the judge's failure to

properly instruct the jury that convictions of greater and

lesser included offenses must be based on separate and distinct

acts to determine whether such error created a substantial risk

of a miscarriage of justice.    "A substantial risk of a

miscarriage of justice exists when we have 'a serious doubt

whether the result of the trial might have been different had

the error not been made.'"     Commonwealth v. Randolph, 438 Mass.

290, 297 (2002), quoting Azar, 435 Mass. at 687.     "Errors of

this magnitude are extraordinary events and relief is seldom

granted."   Randolph, supra, citing Commonwealth v. Amirault, 424
                                                                    33

Mass. 618, 646-647 (1997).   "In analyzing a claim under the

substantial risk standard, '[w]e review the evidence and the

case as a whole.'"   Randolph, supra, quoting Azar, supra.

    Over the years, it has been stated that convictions must be

vacated as duplicative if there is any possibility that the jury

may have based convictions of greater and lesser included

offenses on the same act.    See Berrios, 71 Mass. App. Ct. at

753-755 ("Convictions of two cognate offenses will be sustained

where there is no chance that the finder of fact based the two

offenses upon the same act . . . .     [I]f there is any

possibility that the jury's verdicts were premised on a single

act, then reversal of the lesser offense is required"); Howze,

58 Mass. App. Ct. at 150 ("[I]f there is any possibility that

the jury's verdicts here were premised on a single act, reversal

as to the lesser offense . . . would be required"); Commonwealth

v. Black, 50 Mass. App. Ct. 477, 478-479 (2000) ("Unless the

judge cautions otherwise, there is a theoretical possibility

that the jury could base both the rape and indecent assault and

battery convictions on the same act.    If there is no indication

in the record that such a possibility is insubstantial, the

conviction of the lesser included offense will be vacated to

avoid the possible miscarriage of justice").    The appropriate

inquiry is whether there is any significant possibility that the

jury may have based convictions of greater and lesser included
                                                                    34

offenses on the same act.    Although this inquiry is less

generous to a defendant, it is more consistent with the

substantial risk of a miscarriage of justice standard of

review.14

     In the present case, the judge instructed the jury on the

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

and he explained that the dangerous weapon attributable to

Bratlie was a shod foot.    The judge further instructed that if

the Commonwealth had not met its burden of proof beyond a

reasonable doubt with respect to this offense, then the jury

should consider whether the Commonwealth had established that

the defendant was guilty of the lesser included offense of

assault and battery.    The judge then instructed the jury on the

elements of assault and battery.    He reiterated that the jury

could consider assault and battery as a lesser included offense

of assault and battery with a dangerous weapon, and he also

stated that Bratlie was "charged directly with assault and

battery" on Robinson.   In neither his regular nor his

supplemental instructions did the judge inform the jury that a

conviction of assault and battery by means of a dangerous weapon

(shod foot) had to be based on acts that were separate and

distinct from those supporting a conviction of assault and

     14
       We do not address whether a defendant is entitled to a
less forgiving standard of review if the defendant has objected
to the judge's failure to give an instruction on the need to
find separate and distinct criminal acts.
                                                                   35

battery.   That the judge instructed the jury several times that

they must consider each indictment separately did not equate to

informing the jury that these two charged offenses must be

factually based on separate and distinct acts.   Moreover,

neither the indictments nor the verdict slips received by the

jury identified the respective conduct for each charge.    Not

only did the judge not use the words "separate and distinct

acts," see Thomas, 400 Mass. at 680-682, but, alternatively, he

also did not describe with particularity which alleged acts

supported which charges.   Contrast Gouse, 461 Mass. at 799.

    On the basis of the instructions given, it is impossible

for us to know on which facts each conviction rested.   We

recognize, as the Commonwealth points out, that the prosecutor,

in his opening and closing statements, described how the

evidence demonstrated that the altercation occurred in two parts

-- the first as Robinson was being pushed out of the driveway

and up Careswell Street, and the second as Robinson was lying in

a fetal position on the ground while being kicked and punched by

partygoers.   However, the prosecutor did not specifically point

out which alleged acts corresponded to which charges.   We

conclude that even where, as here, there was evidence of

separate and distinct acts sufficient to convict with respect to

each assault and battery charge, the judge's failure to instruct

the jury that each charge must be based on a separate and
                                                                    36

distinct act created a substantial risk of a miscarriage of

justice.

       Bratlie further contends that assault and battery is a

lesser included offense of assault and battery for the purpose

of intimidation under G. L. c. 265, § 39.    As such, he

continues, the judge's failure to instruct the jury that these

offenses must be based on separate and distinct acts rendered

his assault and battery convictions duplicative of his

conviction of assault and battery for the purpose of

intimidation without bodily injury.    We agree with Bratlie that

assault and battery is a lesser included offense of assault and

battery for the purpose of intimidation.    However, with respect

to Bratlie's one remaining conviction of assault and battery, we

conclude that, while it is a close call, the judge's failure to

instruct on separate and distinct acts did not create a

substantial risk of a miscarriage of justice where, based on our

review of the evidence, there was no significant possibility

that the jury based this conviction and his conviction of

assault and battery for the purpose of intimidation on the same

act.

       "Under our long-standing rule derived from Morey v.

Commonwealth, 108 Mass. 433, 434 (1871), a lesser included

offense is one whose elements are a subset of the elements of

the charged offense."    Commonwealth v. Porro, 458 Mass. 526, 531
                                                                    37

(2010).   See Vick, 454 Mass. at 431-434; Commonwealth v. Jones,

382 Mass. 387, 393 (1981).   Thus, a "lesser included offense is

one which is necessarily accomplished on commission of the

greater crime."   Commonwealth v. D'Amour, 428 Mass. 725, 748

(1999).   "The test is whether, '[i]n order to convict [of the

greater offense], all the elements of [the lesser offense] must

be found, plus an additional aggravating factor.'"    Commonwealth

v. Schuchardt, 408 Mass. 347, 351 (1990), quoting Commonwealth

v. Sherry, 386 Mass. 682, 695 (1982).   See Commonwealth v.

Pimental, 454 Mass. 475, 482 (2009).

    As pertinent here, the essential elements of the crime of

assault or battery for the purpose of intimidation are (1) the

commission of an assault or a battery, (2) with the intent to

intimidate, (3) because of a person's race, color, religion,

national origin, sexual orientation, or disability.   G. L.

c. 265, § 39.   See Barnette, 45 Mass. App. Ct. at 489.   Assault

and battery is a common-law crime that has been codified in

G. L. c. 265, § 13A ("Whoever commits an assault or an assault

and battery upon another shall be punished . . .").   Assault is

defined as either a threat to use physical force on another, or

an attempt to use physical force on another.   See Porro, 458

Mass. at 530-531; Commonwealth v. Gorassi, 432 Mass. 244, 247-

248 (2000); Commonwealth v. Shaffer, 367 Mass. 508, 515 (1975).

Criminal battery is defined as harmful or offensive touching.
                                                                   38

See Porro, supra at 529-530 (explaining intentional battery and

reckless battery).     See also Commonwealth v. Burke, 390 Mass.

480, 482-483 (1983).    "Every battery includes an assault."   Id.

at 482.

    Based on our well-established, elements-based approach to

analyzing purported duplicative convictions, we conclude that

assault and battery is a lesser included offense of assault and

battery for the purpose of intimidation.    The latter crime

includes all of the elements of the former crime, plus the

additional elements of specific intent to intimidate because of

an individual's race, color, religion, national origin, sexual

orientation, gender identity, or disability.    These additional

elements are aggravating factors that "enhance the penalty of

criminal conduct when it is motivated by racial hatred or

bigotry."   Anderson, 38 Mass. App. Ct. at 709 n.5.

    In this case, however, the jury were not given the option

of convicting Bratlie of assault and battery as a lesser

included offense of assault and battery for the purpose of

intimidation.   When discussing his proposed jury instructions

with counsel for the defendants and the Commonwealth, the judge

stated his belief that simple assault and battery was not a

lesser included offense of assault and battery for the purpose

of intimidation.   Consequently, with respect to the verdict slip

on the charge of assault and battery for the purpose of
                                                                  39

intimidation resulting in bodily injury, G. L. c. 265, § 39 (b),

the only enumerated lesser included offense was assault and

battery for the purpose of intimidation with no bodily injury.

It follows, therefore, that the jury must have based Bratlie's

conviction of assault and battery for the purpose of

intimidation with no bodily injury on an act that was separate

and distinct from the one that supported his conviction of

assault and battery, where the evidence was clear that Bratlie

kicked and punched Robinson when he was curled up in a fetal

position and Robinson suffered bodily injury.   Bratlie's

convictions of these two crimes are not duplicative.   The

judge's failure to instruct the jury on separate and distinct

acts did not create a substantial risk of a miscarriage of

justice in these particular circumstances.   Contrast Sanchez,

405 Mass. at 381-382 (Commonwealth did not argue that lesser

included offense constituted wholly separate act from greater

offense); Thomas, 400 Mass. at 680-682 (analysis of duplicative

convictions not based on substantial risk of miscarriage of

justice standard of review).

    6.   Conclusion.   With respect to Kelly, her convictions are

affirmed.   With respect to Shdeed, his convictions are affirmed.

With respect to Bratlie, his convictions of a violation of civil

rights without bodily injury, assault and battery for the

purpose of intimidation without bodily injury, and one count of
                                                                 40

assault and battery are affirmed.   His conviction of, and

sentence for, a second count of assault and battery is vacated

as duplicative.

                                    So ordered.
     LENK, J. (concurring in part and dissenting in part, with

whom Botsford and Duffly, JJ., join).   I agree with the court's

reasoning and conclusions on virtually all of the issues

presented in this case.   My only disagreement concerns the claim

of the defendant, Christopher Bratlie, that three of his

convictions were duplicative.

     I accept the court's rendering of the applicable

principles.1   I agree with the court that, under these

principles, Bratlie's two convictions of assault and battery are

potentially duplicative, essentially because "[o]n the basis of

the instructions given, it is impossible for us to know on which

facts each conviction rested."   Ante at    .   I do not, however,

share the court's view that there is no significant possibility

that Bratlie's remaining conviction of assault and battery is




     1
       As the court explains, convictions of "cognate" offenses,
namely a greater offense and a lesser included offense, are
permissible only if they "rest on separate and distinct acts."
Ante at    , quoting Commonwealth v. King, 445 Mass. 217, 226
(2005), cert. denied, 546 U.S. 1216 (2006). The judge at a
trial on cognate offenses must impart this rule to the jury,
either by "instruct[ing] the jury explicitly that they must find
separate and distinct acts underlying the different charges" or
by "ma[king] clear that [the] indictments [a]re based on
separate acts, each of which [is] described with particularity."
Ante at    , quoting Commonwealth v. Berrios, 71 Mass. App. Ct.
750, 753-754 (2008), and citing Commonwealth v. Gouse, 461 Mass.
787, 799 (2012). Failure to provide such instructions requires
reversal of the lesser conviction if there is "any significant
possibility" that the jury may have based cognate convictions on
the same act. See ante at     .
                                                                    2


duplicative of his conviction of assault and battery for the

purpose of intimidation.

     The court's line of reasoning on this point, as I

understand it,2 runs as follows:   (a) one of the two convictions

was surely based on acts by Bratlie that caused the victim

bodily injury, "where the evidence was clear that Bratlie kicked

and punched [the victim] when he was curled up in a fetal

position and [the victim] suffered bodily injury," ante at     ;

(b) only the assault and battery conviction could have been

based on an act by Bratlie that resulted in bodily injury, since

the conviction of assault and battery for the purpose of

intimidation was returned as a lesser included offense of

assault and battery for the purpose of intimidation with the

     2
       The court notes that "the jury were not given the option
of convicting Christopher Bratlie of assault and battery as a
lesser included offense of assault and battery for the purpose
of intimidation." Ante at     . I do not understand this fact
to form the basis for the court's conclusion that Bratlie's
convictions of assault and battery and of assault and battery
for the purpose of intimidation were based on separate acts. If
we assume that the jury viewed assault and battery and assault
and battery for the purpose of intimidation as noncognate
offenses, each requiring proof of an element not required by the
other, then the jury could well have concluded that a single act
would support Bratlie's convictions of both offenses. See
Commonwealth v. Vick, 454 Mass. 418, 431 (2009). Otherwise put,
the fact that the jury were incorrectly led to think that
assault and battery and assault and battery for the purpose of
intimidation are noncognate offenses did not reduce the risk
that they based the convictions of these two offenses on a
single act. See Commonwealth v. Thomas, 400 Mass. 676, 680-682
(1987) (reversing lesser conviction where judge failed to
provide "separate acts" instruction and did not present offenses
to jury as cognate offenses).
                                                                         3


additional element of resultant bodily injury; and

(c) correspondingly, the conviction of assault and battery for

the purpose of intimidation must have been based on earlier acts

by Bratlie, namely his participation in the group that chased

the victim out of the Careswell Street driveway, threatening him

and calling him a "nigger."   In my view, this line of reasoning

is not compelling.

    To begin with, we cannot safely assume that the jury found

that Bratlie was responsible for any injuries suffered by the

victim.   To be sure, the evidence would have supported such a

finding; but we do not know what portions of this evidence the

jury believed and what inferences they drew from it.     For

instance, the jury did not find that Kevin Shdeed, one of

Bratlie's codefendants, caused the victim bodily injury.        There

was testimony that Shdeed, like Bratlie, kicked and punched the

victim while he was lying on the ground.   See ante at         .

Shdeed also reportedly hit the victim with a large stick.          See

ante at    .   But, although Shdeed was charged with violations

of civil rights resulting in bodily injury, and with assault and

battery for the purpose of intimidation resulting in bodily

injury (among other offenses), the jury convicted him only of

the lesser included versions of these offenses that did not

contain the element of resultant bodily injury.
                                                                       4


    The jury similarly could have entertained a reasonable

doubt whether Bratlie's acts caused the injuries suffered by the

victim.    If we do not assume that the jury found that Bratlie

caused the victim bodily injury, we cannot proceed to identify,

as the court seeks to do, which of Bratlie's acts supported

which of his convictions; any of those convictions could have

been based on any of the acts with which Bratlie was charged.

    Moreover, the court's inference that Bratlie's conviction

of assault and battery for the purpose of intimidation was based

on his noninjury-causing acts, early on in the confrontation,

does not square with the court's own analysis elsewhere in the

opinion.   One of Bratlie's other arguments is that the evidence

was insufficient to support his conviction of assault and

battery for the purpose of intimidation.     See ante at     .   In

rejecting that argument, the court relies specifically on

evidence concerning Bratlie's involvement in the final, most

violent phase of the attack against the victim.      This evidence

included the testimony of one witness, Christina Sacco, that

Bratlie kicked and punched the victim while he was lying in the

street; and that of another witness, Korrie Molloy, that all of

the individuals in the group attacking the victim at that time

were calling him a "nigger."   See ante at      .3   The court's own


    3
       As the court's analysis suggests, this was the evidence
that most strongly supported Bratlie's conviction of assault and
                                                                     5


analysis thus suggests a significant possibility that Bratlie's

conviction of assault and battery for the purpose of

intimidation was based on the very same acts that, in the

current context, the court identifies as the likely basis of the

assault and battery conviction.

    For these reasons, my view is that here, too, "it is

impossible for us to know on which facts each conviction

rested."    Ante at    .   Given that the jury were not instructed

that convictions of cognate offenses must be based on separate

acts, there is a significant possibility that Bratlie's

conviction of assault and battery and his conviction of assault

and battery for the purpose of intimidation were based on the

same act.    I would therefore reverse Bratlie's remaining

conviction of assault and battery as well.




battery for the purpose of intimidation. Accordingly, if -- as
the court assumes -- the jury believed that Bratlie caused the
victim bodily injury, it is puzzling that they did not convict
him of assault and battery for the purpose of intimidation with
the charged element of resultant bodily injury.
