NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

17-P-966                                                Appeals Court

                 COMMONWEALTH   vs.   EMMANUEL LOUIS.


                            No. 17-P-966.

           Middlesex.     July 9, 2018. - November 6, 2018.

               Present:   Blake, Sacks, & Ditkoff, JJ.


Armed Assault with Intent to Murder. Armed Assault in a
     Dwelling. Assault and Battery by Means of a Dangerous
     Weapon. Evidence, Knife, Motive.



     Indictments found and returned in the Superior Court
Department on September 13, 2016.

    The cases were heard by Thomas P. Billings, J.


     Alexandra H. Deal for the defendant.
     Jamie M. Charles, Assistant District Attorney, for the
Commonwealth.


    DITKOFF, J.     The defendant, Emmanuel Louis, appeals from

his convictions following a jury-waived trial of armed assault

with the intent to murder, G. L. c. 265, § 18 (b); armed assault

in a dwelling, G. L. c. 265, § 18A; aggravated assault and

battery by means of a dangerous weapon, G. L. c. 265,
                                                                       2


§ 15A (c) (i); and assault and battery by means of a dangerous

weapon on a person sixty years or older, G. L. c. 265,

§ 15A (a).    We conclude that the evidence that the defendant

swung his arm while holding a knife, knowing that the primary

victim's mother was in close proximity, was sufficient to

establish a reckless assault and battery on the mother.      Further

concluding that the trial judge could have rationally found that

the defendant was armed at the time he entered the primary

victim's house, we affirm.

       1.   Background.   The defendant's wife was living in the

victim's home in Waltham, and the victim had forbidden the

defendant to come to the house.     The defendant told his wife

that he believed that the victim was "trying to destroy his

relationship."

       One morning, the defendant's wife and the victim saw the

defendant outside the victim's house, in front of a sliding

glass door.    The defendant's hand was raised above his head in a

fist, and he was apparently grasping an object.      The defendant

entered through the sliding glass door, tripped and fell to the

floor, stood up, and then began stabbing the victim.      Although

the victim could not see what the defendant was holding, she

testified that he used the object that was in his hand to stab

her.
                                                                        3


    While the defendant was stabbing the victim, the victim's

eighty-two year old mother attempted to intervene by grabbing

the defendant's shoulder.     In response, the defendant stepped

away from the victim and swung his arm.        The victim's mother

suffered a deep cut to the palm of her hand.        The defendant

said, "Hey, Grandma, stay away," and fled.        Both the victim and

her mother required medical care and were brought to the

hospital.    The victim suffered thirty-one stab wounds and was

hospitalized for ten days.        The victim's mother required

stitches to her hand.

    After being arrested, the defendant "continuously mumbled

about what did you expect me to do, she was trying to break up

my family."    The defendant later left a recorded message with

his family in which he stated that he "just made an example out

of" the victim, and that he "did it because [the victim] must

never think that she could do that again."

    2.      Standard of review.    "When reviewing the denial of a

motion for a required finding of not guilty, 'we consider the

evidence introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'"     Commonwealth v. Faherty, 93 Mass. App. Ct.

129, 133 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539,

547 (2017).    "The inferences that support a conviction 'need
                                                                      4


only be reasonable and possible; [they] need not be necessary or

inescapable.'"   Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713,

cert. denied, 134 S. Ct. 2855 (2014).

    3.   Assault and battery by means of a dangerous weapon on a

person age sixty or older.     "There are two theories of liability

for assault and battery . . . :    'intentional battery and

reckless battery.'"    Commonwealth v. Hamilton, 87 Mass. App. Ct.

274, 276 (2015), quoting Commonwealth v. Porro, 458 Mass. 526,

529 (2010).   Under the recklessness theory, "the Commonwealth

must prove (1) that the defendant's 'conduct involve[d] a high

degree of likelihood that substantial harm will result to

another,' or that it 'constitute[d] . . . a disregard of

probable harmful consequences to another,' and (2) that, as a

result of that conduct, the victim suffered some physical

injury" (citations omitted).    Hamilton, supra, quoting

Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275 (1983).     It is

not necessary that the defendant intended to touch the victim,

but "the act, itself, must be intentional, and its character

wanton and reckless."   Commonwealth v. Mistretta, 84 Mass. App.

Ct. 906, 907 (2013).    The injury "need not have been permanent,

but it must have been more than transient and trifling."

Hamilton, supra, quoting Commonwealth v. Burno, 396 Mass. 622,

627 (1986).   See Burno, supra (to meet recklessness standard,
                                                                   5


injury must "interfere[] with the health or comfort of the

victim").

    Here, sufficient evidence existed for the trial judge to

find that both elements of a reckless battery on the victim's

mother were proved.    While the defendant was stabbing the

victim, the victim's mother came up behind him and grabbed his

shoulder.   Despite knowing there was a person touching his

shoulder, the defendant swung his arms, while still gripping the

knife, creating a high degree of likelihood that substantial

harm would be inflicted on anyone in close proximity.    See

Hamilton, 87 Mass. App. Ct. at 277, quoting Commonwealth v.

Perry, 34 Mass. App. Ct. 127, 130 (1993) ("[T]hrusting a

recently used hypodermic needle at [an officer] involved a high

degree of likelihood that substantial harm would result to [the

officer]").    Cf. Commonwealth v. Pease, 49 Mass. App. Ct. 539,

542 (2000) (defendant pushed victim with force, "creating the

requisite level of risk of physical harm to sustain a conviction

of manslaughter" under recklessness theory).    The defendant's

conduct involved a high degree of likelihood of substantial harm

to the victim's mother.

    The Commonwealth also presented sufficient evidence that

the victim's mother's injury was more than transient and

trifling.   The victim's mother suffered a deep cut on the palm

of her hand.   As a result of her wound, the victim's mother was
                                                                    6


taken to the hospital and required stitches.    The trial judge

could reasonably conclude that being stabbed in the hand with

enough force to draw blood and require stitches "interfered with

the health or comfort" of the victim's mother.    Hamilton, 87

Mass. App. Ct. at 276, quoting Burno, 396 Mass. at 627.    The

victim's mother's injury, therefore, was neither transient nor

trifling.   Contrast Burno, supra at 623, 627 (injury is

considered "transient and trifling" where victim was "shaken"

and his "wrist was sore and [he] held it for a 'few minutes'").

    We reject the defendant's theory that the evidence was

insufficient to show that the defendant's knife was the cause of

the mother's injuries.    Although the victim's mother did not

actually see the knife while she was being cut, she did see the

defendant stabbing her daughter with the knife.    She then was

cut when the defendant, who was still attacking her daughter,

swung his hand while she was in contact with him.    The trial

judge could reasonably infer that the knife remained in the

defendant's hand and caused the victim's mother's injury.     See

Waller, 90 Mass. App. Ct. at 303.

    The case of Commonwealth v. Correia, 50 Mass. App. Ct. 455

(2000), is instructive.   There, the defendant, a prisoner, "was

'completely out of control'" and "was kicking his feet and

flailing his arms."   Id. at 458.   He kicked one of the

correctional officers in the chest and stomach, sending the
                                                                      7


officer into a metal railing, and requiring hospital treatment

for a sore back and a concussion.     Id.    We found that this was

reckless conduct, despite the absence of "[p]roof of an intent

to strike the officer."   Id.    Similarly here, the defendant's

swinging his arm with a knife when he knew another person was in

close proximity was enough to establish a reckless battery.1

     4.   Armed assault in a dwelling.      To sustain a conviction

under G. L. c. 265, § 18A, the Commonwealth was required to

prove that (1) the defendant "entered a dwelling that was not

his own while armed with a dangerous weapon"; (2) he "assaulted

another inside the dwelling"; and (3) "the assault was committed

with the intent to commit a felony."        Commonwealth v. Negron,

462 Mass. 102, 109 (2012).      The defendant contests only the

first element -- whether the defendant "was armed with a

dangerous weapon at the time of entry into a dwelling house."

Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 481 n.9 (2009).

See Commonwealth v. Ruiz, 426 Mass. 391, 393 (1998) (under G. L.

c. 265, § 18A, Commonwealth must prove that defendant was armed

at time of entry, not merely after entry).




     1 Because we find sufficient evidence to support the
conviction of assault and battery by means of a dangerous weapon
under a recklessness theory, we need not consider whether there
was sufficient evidence to support the conviction under a theory
of intentional assault and battery. See Mistretta, 84 Mass.
App. Ct. at 907.
                                                                     8


       The trial judge reasonably inferred that the defendant was

armed at the time he entered the victim's house.    See Waller, 90

Mass. App. Ct. at 303-304 (judge was entitled to make inferences

based on expert opinions and testimony, despite defendant

positing conflicting theories of events).    The victim testified

that the defendant "lunged at the sliding door with [his] hand

up."   She stated that he was coming "[f]rom the outside" of the

house and it "looked like he had something [in] his hand."     Upon

entering the house, the defendant tripped but then immediately

got up and began stabbing the victim with "whatever was in his

hand."    Moreover, the victim's mother testified that she saw the

defendant "on top of [her daughter] . . . stabbing her with a

knife."   It was reasonable for the trial judge to infer that the

knife the defendant used to stab the victim was the same object

the victim saw in the defendant's hand as he entered her house,

rather than (as the defendant suggests) an object he picked up

after falling to the floor upon entering the house.    See Woods,

466 Mass. at 713, quoting Commonwealth v. Martino, 412 Mass.

267, 272 (1992) ("Where conflicting inferences are possible from

the evidence, 'it is for the [fact finder] to determine where

the truth lies'").

       The Commonwealth also presented evidence that the defendant

blamed the victim for "trying to destroy his relationship."

This was circumstantial evidence that the defendant had a motive
                                                                  9


to hurt the victim and that he would likely have come to the

victim's home armed to accomplish his objective that the victim

"must never think that she could do that again."    See

Commonwealth v. Barbosa, 477 Mass. 658, 666 (2017) (defendant's

motive to kill victim supported finding that evidence was

sufficient).

    Moreover, after the incident, the defendant left a recorded

message for his family, stating that he "just made an example

out of the" the victim.   The judge was entitled to infer that

the defendant would have armed himself to carry out his

intention of making an example out of the victim.   See

Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 711-712 (2018).

The evidence was sufficient to establish that the defendant was

armed with a knife when he entered the victim's house.

                                   Judgments affirmed.
