Criminal – Dangerous weapon – Sandal

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Where a defendant was convicted of assault and battery by means of a dangerous weapon, there was insufficient evidence to prove that a sandal was used as a dangerous weapon, so the judgment of conviction must be vacated and a new judgment of conviction must enter on the lesser included offense of assault and battery.

“Convicted after a jury-waived trial of assault and battery by means of a dangerous weapon (a sandal), G.L.c. 265, §15A(b), on his eight year old son, the defendant appeals. …

“… There was no evidence about the size, weight, or material of the sandal, or the force with which the defendant handled it. … Nor was there evidence about where on the victim’s body he was hit with the sandal. … The Commonwealth never established any connection between the victim’s testimony that he was ‘hit’ with the sandal and the photographs of injuries. And, in response to a direct question about where the defendant hit him with the sandal, the victim replied, ‘I can’t answer that. I forgot.’ Therefore, the Commonwealth did not prove that the defendant used the sandal in a manner capable of producing serious bodily harm, and thus did not prove that it was a dangerous weapon.

“When a fact finder ‘convicts a defendant of a crime despite insufficient evidence of a required element’ and the ‘remaining untainted elements include all the elements of a lesser included offense, we generally correct the error by vacating conviction of the greater crime, and remanding for entry of conviction of the lesser included offense.’ … In this case, the evidence proved the elements of the lesser included offense of simple assault and battery, G.L.c. 265, §13A(a). … The victim testified that the defendant hit him with ‘harmful object[s],’ including a sandal. In those circumstances, we order entry of a conviction on the lesser included offense of assault and battery. …

“The judgment of conviction on the complaint charging the defendant with assault and battery by means of a dangerous weapon, G.L.c. 265, §15A(b), is vacated, and the finding is set aside. A new judgment of conviction shall enter on so much of the complaint as alleges the lesser included offense of assault and battery, G.L.c. 265, §13A(a). The matter is remanded for resentencing.”

Commonwealth v. Orta (Lawyers Weekly No. 81-107-24) (9 pages) (Docket No. 23-P-808) (Sept. 27, 2024).

Click here to read the full text of the opinion.