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13-P-730                                                Appeals Court

                 COMMONWEALTH   vs.   TIMOTHY FORBES.


                            No. 13-P-730.

           Hampden.      June 3, 2014. - August 26, 2014.

            Present:   Kantrowitz, Milkey, & Hanlon, JJ.


Mayhem. Assault and Battery. Practice, Criminal, Duplicative
     convictions, Lesser included offense.



     Indictments found and returned in the Superior Court
Department on May 15, 2012.

    The cases were tried before Constance M. Sweeney, J.


     David Hirsch for the defendant.
     Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.    After a jury trial in Superior Court, the

defendant was convicted of one count of mayhem, G. L. c. 265,

§ 14 (first theory), and one count of assault and battery

causing serious bodily injury, G. L. c. 265, § 13A(b)(i).       The

defendant makes two different arguments that the mayhem

conviction is unsupported by sufficient evidence.       Finding those
                                                                    2


arguments unpersuasive, we affirm that conviction.   However, we

vacate the conviction of assault and battery causing serious

bodily injury, because we agree with the defendant that it is

duplicative of the mayhem conviction.

    Background.   Based on the Commonwealth's evidence, the jury

could have found the following facts.   On March 9, 2012, the

defendant attended a youth basketball tournament at the Holy

Name School in Springfield.   In the fifth and sixth grade

championship game, a team featuring the defendant's two sons

played against an opposing team coached by the victim, Jose

Feliciano.   The game was fairly close until both of the

defendant's sons "fouled out."   The opposing team went on to win

by a fairly large margin.

    At the end of the game, the players from both teams lined

up in the middle of the court to shake hands, and the coaches

lined up behind them.   The defendant joined the end of the line

of his sons' team.   When Feliciano reached the defendant, the

defendant assumed a "fighting stance" and began to kick and

throw punches at him.   With his hands up, Feliciano backpedalled

away from the defendant, but the defendant continued to advance

and throw punches.   Feliciano retreated all the way to the

gymnasium wall, where the defendant locked him in a "bear hug."

This allowed the defendant to pin Feliciano's arms and to

position his mouth near Feliciano's neck.
                                                                       3


       A group of people gathered around the men and attempted to

pull the defendant off Feliciano.      In particular, Feliciano's

wife repeatedly hit the defendant in the head in an effort to

separate him from her husband.      It was at this point that

Feliciano felt the defendant's teeth clamp onto his left ear and

then heard a "crunching" sound as a portion of the ear was

ripped off.    In this manner, the defendant bit off a large piece

of Feliciano's ear, later measured to be four centimeters by two

and one-half centimeters.      After he was finally separated from

Feliciano, the defendant spat out the severed piece of ear on

the floor and ran out of the gymnasium.      According to Feliciano,

the entire confrontation with the defendant lasted twenty to

twenty-five seconds.      A surgeon was unable to reattach the

severed cartilage and skin to what remained of Feliciano's left

ear.

       Discussion.   1.   Specific intent.   To make out a case of

mayhem under the theory under which the defendant was charged,

the Commonwealth had to prove, inter alia, that he acted with

"malicious intent to maim or disfigure."       G. L. c. 265, § 14.1



       1
       Under the first theory of mayhem, the relevant statute
provides in pertinent part:

       "Whoever, with malicious intent to maim or disfigure, cuts
       out or maims the tongue, puts out or destroys an eye, cuts
       or tears off an ear, cuts, slits or mutilates the nose or
                                                                    4


Feliciano argues that there was insufficient evidence for the

jury to find that he acted with such intent.   According to him,

given the short duration and chaotic nature of the rapidly

escalating circumstances, no reasonable juror could conclude

that he specifically intended to maim or disfigure Feliciano.

    In considering the sufficiency of the Commonwealth's

evidence, we are required to view the evidence in the light most

favorable to the Commonwealth.   Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).   "[T]he specific intent to maim or

disfigure can be established by 'direct or inferential proof

that the assault was intentional, unjustified, and made with

reasonable appreciation on the assailant's part that a disabling

or disfiguring injury would result.'"   Commonwealth v. Cleary,

41 Mass. App. Ct. 214, 217 (1996), quoting from Commonwealth v.

Davis, 10 Mass. App. Ct. 190, 196 (1980).   While specific intent

may in some cases be demonstrated by evidence of a sustained

attack, a prolonged assault is not a prerequisite; specific

intent may also be inferred from the "severity and extent of the


    lip, or cuts off or disables a limb or member, of another
    person . . . shall be punished . . . ."

The statute also establishes a second theory of mayhem, which
involves the use of "a dangerous weapon, substance, or
chemical." "The two parts [of the mayhem statute] represent
distinctive and independent bases of liability." Commonwealth
v. Hogan, 7 Mass. App. Ct. 236, 246 n.11 (1979). It is
undisputed that the defendant was indicted and tried only under
the first theory.
                                                                     5


[victim's] injuries."   See Commonwealth v. Hap Lay, 63 Mass.

App. Ct. 27, 36 (2005).

    There was ample evidence for the jury to find that the

defendant acted with specific intent to maim or disfigure

Feliciano.   Indeed, proof of the requisite intent can be drawn

from the very fact that the defendant bit the victim's ear with

adequate force and for a sufficient duration to crush and tear

off a "very tough" layer of cartilage there.    Regardless of the

extent to which the defendant was agitated by the surrounding

crowd of people attempting to disengage him, a jury might well

have wondered how he could have bitten off a large portion of

Feliciano's ear without maliciously intending to maim or

disfigure him.    It also bears noting that the defendant was the

initiator of the fight, that he continued to kick and swing

punches at Feliciano even as Feliciano was backing away, and

that he wrapped his arms around Feliciano's arms, so that

Feliciano was unable to fend off the defendant when he placed

his mouth to Feliciano's ear.

    The defendant's reliance on Commonwealth v. Cleary, 41

Mass. App. Ct. at 218, and Commonwealth v. Johnson, 60 Mass.

App. Ct. 243, 246-247 (2003), is misplaced.    In those cases, we

reversed a mayhem conviction where the defendant struck the

victim with "a weapon [that] caused a more severe injury than

anticipated."    Commonwealth v. McPherson, 74 Mass. App. Ct. 125,
                                                                      6


128-129 (2009).   Unlike the injuries suffered by the victims in

Cleary and Johnson, the injury to Feliciano's ear in this case

was "a logical and foreseeable consequence of [the defendant's]

planned, sudden, and unprovoked attack."     Id. at 129.

     2.   Nature of the injury.    The defendant next contends that

there was insufficient proof of the type of injury necessary to

sustain a mayhem conviction.     The relevant statutory language

applies to one who "cuts or tears off an ear."     The defendant

argues that "off" should be interpreted as modifying both "cuts"

and "tears."   Based on this reading, he further argues that

because it is undisputed that he bit off only a portion the

victim's ear, he cannot reasonably be said to have cut off or

torn off "an ear."2   The Commonwealth maintains that "off" should

be interpreted as modifying only "tears," not "cuts," and

accordingly that one can be guilty of mayhem by making any cut

to the ear, so long as it is done with the requisite "malicious

intent to maim or disfigure."3    Alternatively, the Commonwealth


     2
       The defendant argues that "an ear" means the entire outer
ear; he concedes that one need not tear out the inner ear as
well to be guilty of mayhem.
     3
       The word "cuts" is used in various ways in the single
sentence that comprises the statute. It is used as a stand-
alone verb with regard to noses and lips ("cuts, slits or
mutilates the nose or lip"), it is modified by "out" with regard
to a tongue ("cuts out or maims the tongue"), and it is modified
by "off" with regard to a limb ("cuts off or disables a limb or
member"). Thus, the surrounding language of the statute
                                                                    7


argues that even if "off" is interpreted as modifying both

"cuts" and "tears," removal of the entire ear is not required.4

     In interpreting a statute, we begin with the plain

language, but also draw guidance from other sources, such as the

statute's legislative history and the law of other

jurisdictions.   See Commonwealth v. Jean-Pierre, 65 Mass. App.

Ct. 162, 163 (2005).    "A statute should be construed in a

fashion which promotes its purpose and renders it an effectual

piece of legislation in harmony with common sense and sound

reason."   Commonwealth v. Anderson, 38 Mass. App. Ct. 707, 710

(1995) (quotation and citation omitted).     Under the rule of

lenity, we interpret ambiguities in a criminal statute in a

defendant's favor.     Commonwealth v. Williamson, 462 Mass. 676,

679 (2012).

     We need not resolve whether the rule of lenity requires

that "off" be interpreted as modifying both "cuts" and "tears."

That is because we agree with the Commonwealth that, in any


provides some textual fodder for each side. See Commonwealth v.
Brooks, 366 Mass. 423, 428 (1974) (we interpret "words in a
statute . . . in light of the other words surrounding them").
The current version of the relevant language dates to 1836. See
R.S. 1836, c. 125, § 10. An earlier version applied to people
who "cut off an Ear." St. 1804, c. 123, § 4.
     4
       Although this is the first case in which we have
considered the precise type of ear injury necessary to sustain a
mayhem conviction, we previously affirmed a conviction of mayhem
where the defendant bit off only a portion of the victim's ear.
Commonwealth v. Davis, 10 Mass. App. Ct. at 190, 199.
                                                                     8


event, one need not cut off or tear off an entire ear to be

guilty of mayhem.     Simply put, we think that interpreting "an

ear" as necessarily denoting an entire ear ascribes to the word

"an" a mathematical precision that was never intended.     "The

maxim that penal statutes are to be strictly construed does not

mean that an available and sensible interpretation is to be

rejected in favor of a fanciful or perverse one."     Commonwealth

v. Roucoulet, 413 Mass. 647, 652 (1992), quoting from

Commonwealth v. Tata, 28 Mass. App. Ct. 23, 25-26 (1989)

(Kaplan, J.).     Certainly, we would not hesitate to affirm a

mayhem conviction, for instance, where the defendant had removed

all but a tiny portion of the victim's ear.    At least where, as

here, the evidence shows that the defendant severed a

substantial portion of the victim's ear, we conclude that a jury

reasonably could have concluded that the defendant's actions

amounted to "cut[ting] or tear[ing] off an ear."

     Moreover, this reading of the mayhem statute accords with

the conclusions of courts interpreting similar statutes in other

jurisdictions.5    See Hawaii v. Gallagher, 9 Haw. 587, 588-590

(1894) (affirming mayhem conviction where only "portion of the

     5
       As noted, see note 3, supra, the statutory language
codifying the first theory of mayhem dates to the beginning of
the nineteenth century, with the current language in place since
1836. Nearly identical versions of the statute were enacted in
at least ten other States and territories, and broadly similar
statutes in others.
                                                                     9


ear . . . was torn off").   Cf. Lamb v. Cree, 86 Nev. 179, 181

(1970) ("Under our law, biting off a portion of the ear is

equivalent to a slitting of the ear").   See also LaFave,

Substantive Criminal Law § 16.5(c) (2d ed. 2003) ("It has been

held mayhem to cut off a part of an ear or a nose, so long as

the net result is an impairment of natural comeliness").    We

conclude that the judge did not err in denying the defendant's

motion for a required finding.

     3.   Duplicative convictions.   Finally, the defendant argues

that his conviction of assault and battery causing serious

bodily injury should be vacated because it is a lesser included

offense of mayhem.6   We have previously ruled that assault and

battery by means of a dangerous weapon causing serious bodily

injury is a lesser included offense of mayhem, second theory,

but have not had occasion to address the precise question

presented here.   See Commonwealth v. McPherson, 74 Mass. App.

Ct. at 129.

     To determine whether two convictions are duplicative, we

apply the "long-prevailing test" that asks "whether each crime

requires proof of an additional fact that the other does not."

Commonwealth v. Crocker, 384 Mass. 353, 357 (1981).   We consider

only the objective elements of each crime and not the facts of

     6
       It is undisputed that both convictions are based on the
defendant's biting Feliciano's ear.
                                                                   10


any particular case.   Commonwealth v. Vick, 454 Mass. 418, 431

(2009).   "When statutory crimes can be violated in multiple

ways, comparison of their elements must focus on the specific

variations that the defendant is alleged to have committed."

Commonwealth v. Roderiques, 462 Mass. 415, 421 (2012).

     Applying these principles to the two criminal offenses at

issue here, we agree with the defendant that his convictions are

duplicative.   A conviction under G. L. c. 265, § 13A(b)(i),

requires evidence of an assault and battery that causes serious

bodily injury, which is defined as "bodily injury that results

in a permanent disfigurement, loss or impairment of a bodily

function, limb or organ, or a substantial risk of death."      G. L.

c. 265, § 13A(c).7   While mayhem (first theory) contains an

element -- specific intent to maim or disfigure -- that is not

contained in assault and battery causing serious bodily injury,

the converse is not true.   More specifically, the specified

injuries to the body parts listed in the first part of the

mayhem statute would necessarily constitute both an assault and

battery and either "permanent disfigurement" or "loss or

impairment" of a "limb or organ" under the "serious bodily

     7
       In Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. at 167,
we concluded that the term "permanent" in the assault and
battery statute modified only "disfigurement." Thus, "loss or
impairment of a bodily function, limb or organ" need not be
permanent to meet the statutory definition of serious bodily
injury.
                                                                  11


injury" provision.8   See G. L. c. 265, § 13A(c).   In other words,

the Commonwealth could not prove that a defendant committed any

of the enumerated offenses under the first branch of the mayhem

statute without also proving that he committed an assault and

battery causing serious bodily injury.   The conviction of the

assault and battery charge therefore must be vacated.     See

Commonwealth v. Rivas, 466 Mass. 184, 189 (2013) (when faced

with duplicative convictions, "appellate courts have generally

considered it appropriate to vacate the conviction on the

offense with fewer elements and to affirm the conviction on the

more serious offense without remand to the trial court"

[quotations omitted]).

     Conclusion.   For the reasons stated above, we affirm the

mayhem conviction, but vacate the conviction of assault and

battery causing serious bodily injury.

                                         So ordered.




     8
       At oral argument, the Commonwealth acknowledged that an
ear is an "organ" for purposes of G. L. c. 265, § 13A(c). This
accords with the standard medical definition of that term. See
Stedman's Medical Dictionary 1378 (28th ed. 2006) (defining
"organ" as "[a]ny part of the body exercising a specific
function [e.g., respiration, secretion, or digestion]").
