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14-P-625                                            Appeals Court

              COMMONWEALTH   vs.   BRAD D. HAMILTON.


                           No. 14-P-625.

      Worcester.       December 12, 2014. - April 13, 2015.

            Present:   Rubin, Milkey, & Carhart, JJ.


Assault and Battery. Hypodermic Needle. Wanton or Reckless
     Conduct. Practice, Criminal, Required finding,
     Instructions to jury.


     Indictment found and returned in the Superior Court
Department on December 13, 2012.

    The case was tried before Daniel M. Wrenn, J.


     Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
     Stephen J. Carley, Assistant District Attorney, for the
Commonwealth.


    CARHART, J.    The defendant appeals from his conviction of

assault and battery by means of a hypodermic syringe or needle

(hypodermic needle, or needle) in violation of G. L. c. 265,
                                                                       2


§ 15C(b),1 arguing that the evidence was insufficient to support

a conviction and that the trial judge erroneously instructed the

jury.      We affirm.

       Background.      "Viewing the evidence in the light most

favorable to the Commonwealth, the jury could have found the

following facts."        Commonwealth v. Angelo Todesca Corp., 446

Mass. 128, 129 (2006).

       On July 16, 2012, Worcester police Officer Ryan Stone

responded to a call for a "wellness check" at a Price Chopper

store and was directed to the bathroom.        Officer Stone entered

the bathroom and ordered the person inside the stall to come

out.       The defendant came out of the stall and put his hands on

the wall.      Officer Stone observed items used to clean or use a

hypodermic needle on the back of the toilet in the stall, and

also observed something in the defendant's right hand.        He asked

       1
       Under G. L. c. 265, § 15C(b), inserted by St. 2006,
c. 172, § 12, "[w]hoever commits an assault and battery upon
another, by means of a hypodermic syringe [or] hypodermic
needle, . . . shall be punished . . . " (G. L. c. 265, § 15C[a],
punishes a simple assault perpetrated by the same means).
Statute 2006, c. 172, "An Act relative to HIV and Hepatitis C
Prevention," is part of an ongoing effort by the Legislature "to
combat a substantial public health threat: the transmission of
blood-borne diseases by intravenous drug abusers." Commonwealth
v. Landry, 438 Mass. 206, 209 (2002) (analyzing G. L. c. 94C,
§ 27 [f], inserted by St. 1993, c. 110, § 142; statutory scheme
was later revised by St. 2006, c. 172, § 3). The act created
programs "designed to protect the public health and the
environment by providing for the safe [and] secure . . .
disposal of hypodermic needles," reflecting the danger the
Legislature ascribes to needles used to inject drugs. G. L.
c. 94C, § 27A(d), inserted by St. 2006, c. 172, § 3.
                                                                      3


the defendant to drop what he was holding, but the defendant did

not do so.     The officer asked the defendant "where the needle

was," and the defendant answered that the needle was in his

pocket.    Officer Stone told the defendant that he was going to

be placed in handcuffs and asked him to put his hands behind his

back.    Receiving no response from the defendant, Officer Stone

took the defendant's left hand, placed it behind his back, and

cuffed it.     As the officer reached for the defendant's right

hand, he again ordered the defendant to drop whatever was in his

right hand.    Officer Stone felt the defendant tense up, and as

the officer attempted to cuff his hand, the defendant jerked and

thrust it at Officer Stone.     Officer Stone "felt a stinging

sensation" in his hand and realized that he had been pricked by

the needle.2    An ambulance arrived and took both men to the

hospital for treatment.

     At trial, the defendant argued that he accidentally struck

Officer Stone with the needle.     After the close of evidence, the

judge heard requests for jury instructions.     He denied the

defendant's request for insertion of one line into the portion

of the charge relating to recklessness.3    There was no objection


     2
         Officer Stone was wearing gloves at the time.
     3
       The defendant asked that, after defining "bodily injury,"
the judge instruct the jury as follows: "For example, an act
that only shakes up a person or causes only momentary discomfort
would not be sufficient."
                                                                        4


after the judge charged the jury without including the requested

instruction.4

     Discussion.     1.   Sufficiency of the evidence.   The

defendant argues that there was insufficient evidence of

substantial harm, which is necessary to sustain a conviction for

reckless assault and battery with a hypodermic needle.

"Sufficient evidence exists when, viewed in the light most

favorable to the Commonwealth, a rational fact finder could find

all material elements of the offense established beyond a

reasonable doubt."     Commonwealth v. McCollum, 79 Mass. App. Ct.

239, 245 (2011), citing Commonwealth v. Latimore, 378 Mass. 671,

677 (1979).

     There are two theories of liability for assault and battery

under G. L. c. 265, § 15C(b):     "intentional battery and reckless

battery."   Commonwealth v. Porro, 458 Mass. 526, 529 (2010).

The defendant was convicted under the recklessness theory.        "A

reckless assault and battery is committed when an individual

engages in reckless conduct that results in a touching producing

physical injury to another person . . . ."      Ibid.    To sustain a

conviction, "the Commonwealth must prove (1) that the

defendant's 'conduct involve[d] a high degree of likelihood that

substantial harm will result to another,' Commonwealth v.


     4
       At a sidebar conference following the charge, counsel for
the defendant stated that they were "[s]atisfied."
                                                                     5


Welansky, [316 Mass. 383, 399 (1944)], or that it 'constitute[d]

. . . a disregard of probable harmful consequences to another,'

Commonwealth v. Vanderpool, [367 Mass. 743, 747 (1975)], and (2)

that, as a result of that conduct, the victim suffered some

physical injury."    Commonwealth v. Welch, 16 Mass. App. Ct. 271,

275 (1983).    The injury must have "interfered with the health or

comfort of the victim.    It need not have been permanent, but it

must have been more than transient and trifling."    Commonwealth

v. Burno, 396 Mass. 622, 627 (1986).

     Here, the Commonwealth presented evidence that the

defendant thrust his hand at Officer Stone while holding what

jurors could infer was a recently used hypodermic needle.

"Recklessness as a standard of criminality is generally reserved

for conduct that creates an unacceptable risk of severe harm to

others," Commonwealth v. Dellamano, 393 Mass. 132, 137 (1984),

and G. L. c. 265, § 15C, reflects "a legislative determination"

that the improper use, storage, or disposal of a hypodermic

needle creates such a risk.    See Commonwealth v. Catalina, 407

Mass. 779, 790 (1990) (discussing Legislature's justification

for placing heroin in most dangerous category of controlled

substances).   "Considering the inherently dangerous nature of

heroin" and the fact that the Legislature enacted G. L. c. 265,

§ 15C, although G. L. c. 265, §§ 15A and 15B, already

criminalized assault and battery (and assault) by means of a
                                                                     6


dangerous weapon, "the defendant's conduct [of thrusting a

recently used hypodermic needle at Officer Stone] involved a

high degree of likelihood that substantial harm would result to

[Stone]."   Commonwealth v. Perry, 34 Mass. App. Ct. 127, 130,

S.C., 416 Mass. 1003 (1993).

     A reasonable juror could conclude that being struck by the

needle with enough force to puncture a glove and then the skin

"interfered with the health or comfort" of Officer Stone,

Commonwealth v. Burno, supra, especially in light of the special

danger the Legislature ascribes to hypodermic needles.5    Officer

Stone "felt a stinging sensation" in his hand "like an electric

shock," and received treatment at the hospital.    Viewing this

evidence in the light most favorable to the Commonwealth, the

jury could have found that Officer Stone's injury was neither

transient nor trifling.   Contrast ibid. ("transient and

trifling" injuries include an alleged victim being "shaken up"

but by own admission uninjured, or having "sore wrist for only a

few minutes").

     2.   Jury instruction.    Because there was no objection as

required by Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), to the

instructions given, we review for a substantial risk of a


     5
       General Laws c. 265, § 15C(b), does not differentiate
between used and unused hypodermic needles. We do not mean to
suggest that a needle need be tainted by drugs or bodily fluids
to satisfy this element.
                                                                   7


miscarriage of justice.    Commonwealth v. Freeman, 352 Mass. 556,

563-564 (1967).   Commonwealth v. Torres, 420 Mass. 479, 483

(1995), and cases cited.   There was no risk of a miscarriage of

justice from the judge's refusal to provide an example of bodily

injury that would be insufficient to sustain a conviction of

reckless assault and battery.   The judge instructed the jury

that "[t]he injury must be sufficiently serious to interfere

with Mr. Stone's health or comfort, and more than trifling,

though it need not be permanent."   This was an accurate

statement of the law, and it is doubtful that the defendant's

requested example would have added anything to the jury's

understanding thereof.

                                    Judgment affirmed.
