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19-P-440                                                Appeals Court

                      COMMONWEALTH   vs.   NOEL INOA.


                             No. 19-P-440.

           Norfolk.       January 7, 2020. - April 2, 2020.

             Present:    Wolohojian, Milkey, & Shin, JJ.


Assault and Battery by Means of a Dangerous Weapon.       Words,
     "Serious bodily injury."



     Indictment found and returned in the Superior Court
Department on March 28, 2013.

    The case was tried before Peter B. Krupp, J.


     Geraldine C. Griffin for the defendant.
     Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.


    SHIN, J.    A jury convicted the defendant of assault and

battery by means of a dangerous weapon causing serious bodily

injury.    See G. L. c. 265, § 15A (c) (i).      The question on

appeal is whether there was sufficient evidence of "serious

bodily injury" as defined in G. L. c. 265, § 15A (d), which sets

out three alternative ways to prove that element of the crime.
                                                                   2


The defendant contends that because the judge instructed the

jury on all three alternative definitions, and the jury returned

a general verdict, the evidence must be sufficient to establish

serious bodily injury under each definition.   We disagree and

conclude that the alternative definitions do not constitute

distinct theories of guilt, so we need determine only whether

the Commonwealth met its burden of proving serious bodily injury

under at least one of them.   As we further conclude that the

Commonwealth met that burden, we affirm.

     Background.   The jury could have found the following facts,

viewing the evidence in the light most favorable to the

Commonwealth.   On December 20, 2012, the defendant, then an

inmate at the Norfolk County house of correction, walked up

behind another inmate and slashed his face with a razor taped to

a spoon.   The victim suffered a gash, twenty to twenty-two

centimeters (around eight inches) long and one centimeter deep,

running across the lower right side of his face and part of his

neck.   Staff in the medical unit applied pressure to the wound

and gave the victim oxygen after he reported feeling

lightheaded.

     The victim was then taken by ambulance to a hospital.

There, according to emergency department records, plastic

surgery was consulted on an "[u]rgent" basis "because of the

time [it] will take to repair this laceration, and to a lesser
                                                                   3


extent, because it violated the fascia[1] posteriorly."   A

plastic surgeon sutured the wound, and the victim was discharged

with instructions to follow up with plastic surgery in ten to

fourteen days.   Color photographs of the wound before and after

suturing were admitted in evidence.

     Discussion.   General Laws c. 265, § 15A (d), defines

"serious bodily injury" in three ways:   bodily injury resulting

in (1) "a permanent disfigurement," (2) "loss or impairment of a

bodily function, limb or organ," or (3) "a substantial risk of

death."   See Commonwealth v. Scott, 464 Mass. 355, 357 (2013)

(G. L. c. 265, § 13A [c], "set[s] forth three distinct routes

for establishing serious bodily injury"); Commonwealth v. Jean-

Pierre, 65 Mass. App. Ct. 162, 164 (2005) (§§ 13A [c] and

15A [d] "set forth substantially identical definitions of

'serious bodily injury'").   The judge instructed the jury in

accordance with the statute, and, as noted, the jury returned a

general verdict.   As a result, the defendant argues, we cannot

uphold his conviction unless we conclude that the evidence is

sufficient to establish serious bodily injury under each of the

statute's alternative definitions.




     1 "Fascia" is "[a] sheet of fibrous tissue that envelops the
body beneath the skin; it also encloses muscles and groups of
muscles and separates their several layers or groups."
Stedman's Medical Dictionary 700 (28th ed. 2006).
                                                                   4


    In so arguing, the defendant relies on "the general rule in

the Commonwealth . . . that there must be a new trial if . . . a

jury, given [multiple] theories of guilt, returned a general

verdict, and the evidence supported a guilty verdict on only

[some] of those theories."   Commonwealth v. Plunkett, 422 Mass.

634, 638 (1996).   Cf. Griffin v. United States, 502 U.S. 46, 56-

60 (1991) (general verdict may stand so long as evidence

sufficient to support one theory of guilt because jury can be

presumed not to have convicted on factually inadequate theory).

But this rule does not apply in every situation where there is

more than one way to prove an element of the crime, as the

defendant suggests.   What is critical is whether the jury were

presented with distinct "theories of guilt," Plunkett, supra,

meaning "alternative means by which to commit the crime,"

Commonwealth v. Smith, 458 Mass. 1012, 1014 (2010).   Only then

must we examine the evidence separately as to each theory if the

jury returned a general verdict.   See id.

    A few examples help illustrate the distinction.    Distinct

theories of guilt in this context include the differing theories

of murder in the first degree (deliberate premeditation, felony-

murder, or extreme atrocity or cruelty), see Plunkett, 422 Mass.

at 635; Commonwealth v. Floyd P., 415 Mass. 826, 832-833 (1993),

and the differing theories of manslaughter (voluntary or

involuntary), see Commonwealth v. Accetta, 422 Mass. 642, 646-
                                                                   5


647 (1996).   Another example, provided by the defendant, is

Commonwealth v. Manzelli, 68 Mass. App. Ct. 691, 695 n.8 (2007),

in which this court held that interception of an oral

communication and attempted interception of an oral

communication are differing theories of criminal liability under

G. L. c. 272, § 99.   What these cases have in common is that the

alternate theories presented to the jury were "separate,

distinct, and essentially unrelated ways in which the same crime

can be committed," Commonwealth v. Santos, 440 Mass. 281, 288

(2003), requiring on appeal that the evidence as to each theory

be assessed separately.

    In contrast, courts have not assessed the evidence

separately as to alternate theories that were merely related

ways of proving the same legal concept.   For example, in Smith,

458 Mass. at 1013, the court held that the alternative knowledge

clauses in the armed home invasion statute -- requiring either

that the defendant "enter the dwelling place knowing that

someone is present or, if the [defendant] does not know before

entering that someone is present, that he [or she] remain within

after gaining such knowledge" -- are not distinct theories of

guilt because "[w]hat matters for purposes of the armed home

invasion statute is that a defendant has knowledge that someone

is present in the dwelling," regardless of "the timing of when

the defendant gains that knowledge."   Accord Commonwealth v.
                                                                   6


Martinez, 85 Mass. App. Ct. 288, 290-291 (2014).   In a similar

vein, the court held in Commonwealth v. Zanetti, 454 Mass. 449,

467 (2009), that principal and joint venture liability are not

distinct theories of guilt because what matters in a joint

venture case is that the defendant knowingly participated in the

crime with the required criminal intent, regardless of his or

her "precise role in the commission of the crime."2   Other

examples include the alternative forms of larceny (larceny,

embezzlement, or larceny by false pretenses), see Commonwealth

v. Mills, 436 Mass. 387, 393 (2002), the alternative prongs for

establishing malice, see Commonwealth v. Riley, 467 Mass. 799,

821-822 (2014); Commonwealth v. Avellar, 416 Mass. 409, 421-422

(1993), and constructive versus actual possession, see

Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 531-532

(2000).   These "are not different theories in the way that

deliberate premeditation and felony-murder are different

theories," but "are simply [different] possible ways of defining

the same legal principle."   Id. at 532.

     Likewise, here, the alternative definitions in G. L.

c. 265, § 15A (d), do not establish different ways of committing

the crime of assault and battery by means of a dangerous weapon

causing serious bodily injury.   The elements of the crime are


     2 The defendant relies principally on cases that have been
abrogated by Zanetti.
                                                                    7


"that the defendant intentionally touched the victim, however

slightly; the touching was unjustified; the touching was done

with an inherently dangerous weapon or an object used in a

dangerous fashion; and the touching caused serious bodily

injury."   Commonwealth v. Vick, 454 Mass. 418, 432 (2009).    What

matters for purposes of this last element is that the defendant

caused a serious enough bodily injury for the enhanced penalty

provisions of the statute to apply.   The alternative definitions

are simply related ways of proving that element, much in the

same way that the third element can be satisfied through proof

that the object used was either inherently dangerous or used in

a dangerous fashion.   Indeed, the instructions in this case

defined "dangerous weapon" in these alternative ways, but that

does not mean, and the defendant does not contend, that we would

have to determine whether the evidence was sufficient under both

definitions.

    We therefore conclude that a reviewing court need not

examine the evidence separately as to each definition of serious

bodily injury in G. L. c. 265, § 15A (d), to uphold a conviction

against a sufficiency challenge.   What is required is that there

be sufficient evidence of serious bodily injury under at least

one of the definitions.   Turning to that question, and viewing

the evidence and all reasonable inferences therefrom in the

light most favorable to the Commonwealth, see Commonwealth v.
                                                                      8


Latimore, 378 Mass. 671, 677 (1979), we conclude that the jury

could find proof beyond a reasonable doubt that the victim

suffered bodily injury resulting in "a permanent disfigurement."3

G. L. c. 265, § 15A (d).     See Commonwealth v. Heywood, 484 Mass.

43, 49-52 (2020) (affirming conviction under G. L. c. 265, § 13A

[b] [i], upon concluding that evidence was sufficient to

establish permanent disfigurement and impairment of bodily

function).

     The Supreme Judicial Court has recently defined "a

permanent disfigurement" as "a significant and enduring injury

that affects the appearance or the character of a person's

bodily integrity."     Heywood, 484 Mass. at 50.   Evidence of

scarring or a visible change in a person's outward appearance is

one way to prove permanent disfigurement but is not necessarily

required.    See id.   Furthermore, "the fact that an injury can be

or was concealed or repaired does not preclude a finding of

permanent disfigurement."     Id.

     Here, the medical records showed that the victim suffered

an approximately twenty-centimeter long gash to his face,

necessitating an "[u]rgent" consultation with plastic surgery

because of the severity of the wound and the time needed to

repair it.    The jury could see the wound for themselves from the


     3 We do not decide whether the evidence was sufficient to
establish serious bodily injury under the other two definitions.
                                                                   9


graphic photographs that were in evidence.   The photographs

taken before suturing show a gaping wound running from the

victim's chin, past his ear, and toward the back of his neck.

The photographs taken after suturing show that over thirty

stitches were required to close the wound.   The jury could have

assessed the severity of the injury from the photographs without

medical expertise or explanation.   Cf. Scott, 464 Mass. at 364.

In turn, the jury could have found, based on their ordinary,

common experience, that a wound this long and deep -- requiring

suturing by a plastic surgeon and follow up ten to fourteen days

later -- was "significant and enduring" and would have caused

scarring, resulting in a permanent disfigurement.   Heywood, 484

Mass. at 50.   See id. (jury could have found that injury

"compromised the integrity of the victim's face" and caused

permanent disfigurement, given evidence that victim sustained

fractures requiring surgery and insertion of titanium plates).

Cf. Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 541-542

(2017) (grand jury could have found probable cause that victim

suffered permanent disfigurement where he sustained lacerations

to head, which totaled twenty-one centimeters in length,

required suturing, and caused scarring).4


     4 We do not preclude the possibility that a cut could be so
severe that reasonable jurors could find it to have "impair[ed]
. . . a bodily function . . . or organ." G. L. c. 265,
§ 15A (d). But we do not decide that issue here.
                     10


Judgment affirmed.
