Commonwealth v. David Jeudin.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-488

COMMONWEALTH

vs.

DAVID JEUDIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged by complaint in the District

Court with strangulation.1 At the close of the Commonwealth's

case, the defendant moved for a required finding of not guilty.

The judge agreed with the defendant that the Commonwealth failed

to meet its burden to prove strangulation but, over the

defendant's objection, amended the charge to simple assault and

battery and instructed the jury accordingly. After the

defendant then testified in his own defense, the jury found him

guilty of assault and battery. The defendant appeals, arguing

that the judge's amendment of the strangulation charge to

1Although the complaint charged "strangulation or
suffocation," the parties agree that suffocation was not at
issue in the case.
assault and battery allowed the jury to convict the defendant of

an offense not charged in the complaint and that this was

prejudicial. We agree and thus reverse.

Background. The complaint stemmed from an incident that

occurred between the defendant and the victim (the defendant's

wife) on the night of August 3, 2020. At the time the defendant

and the victim were separated and not speaking to each other,

but still living together with their children in the same house.

The victim testified on direct examination that, on the

night in question, she was lying on an air mattress and talking

on the phone with her assistant, George. The defendant

approached, asked "Who's George?" and "out of nowhere . . . just

jump[ed] on [the victim] on the bed." The defendant was

"holding [the victim] on [her] chest" and "pushing [her] down"

with his elbow, while using his other arm to "try[] to grab the

phone." When asked whether the defendant was pushing "any

specific area of [her] body," the victim replied, "[R]ight there

. . . by my neck and my chest." When asked whether "that

affect[ed] [her] breathing in any way," the victim replied,

"No." The victim was eventually able to get up and call 911.

The victim further testified that she was injured as a

result of the incident and described her injuries as "red marks

. . . all over [her] chest." The Commonwealth then introduced

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in evidence four photographs taken of the victim's neck and

chest area that night and asked the victim to point to her

injuries. As to the first photograph, the victim testified, "It

doesn't show it clear here, but this is where all -- right

there, it was like mark [sic] all over here," and "It's not

showing exactly." As to the second photograph, the victim

testified, "The mark are [sic] not clear on the picture, but

from the first picture to the second one, this is where like my

stomach was all red from him holding me down." As to the third

photograph, the victim testified that it showed injuries

"[r]ight under [her] neck" while stating, "It does not appear

bright red in the picture, but you could see that's not my

normal color." As to the fourth photograph, the victim

testified that it "shows . . . the two different tones of color"

on "[her] neck" and the "top of [her] chest."

Two police officers who responded to the 911 call also

testified for the Commonwealth. One of the officers testified

that he saw "some . . . redness on [the victim's] neck that

would be consistent with strangulation." The other officer

testified that he spoke to the defendant at the scene and the

defendant stated that, after he took the victim's phone, she

accused him of strangling her.

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The Commonwealth rested its case after presenting these

three witnesses. The defendant then moved for a required

finding of not guilty on the strangulation charge, arguing that

"there was no evidence that [the defendant] ever put his hands

around [the victim's] neck or impeded her breathing." The judge

agreed, noting that the victim specifically testified that the

defendant's actions did not impede her breathing, that "only

once did she mention her neck,"2 and that "she generally focused

on the chest area." Concluding, however, that assault and

battery is a lesser included offense of strangulation, the judge

ruled over the defendant's objection that the appropriate remedy

was to reduce the strangulation charge to assault and battery.

The judge then instructed the jury as follows:

"I'm withdrawing from your consideration the charge of
strangulation. To be specific, that charge, which is Count
Two, has been reduced to what's called assault and
battery."

"When you deliberate in this case, you are only to
deliberate concerning the charges that are remaining. . . .
I'm going to give you a quick introduction to the elements
of assault and battery now, and again, I'll instruct you
more fully later on in the trial."

"In order to prove the defendant guilty of committing an
intentional assault and battery, the Commonwealth must
prove three things beyond a reasonable doubt; that the
defendant touched the person [of] the alleged victim; that
the defendant intended to touch the alleged victim; and

2 The judge's observation was correct insofar as the victim
mentioned her neck only once until she was shown the
photographs.

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that the touching was either likely to cause bodily harm to
the alleged victim or was offensive. I'll go into these
elements in more detail at the end of the trial."

"You are not to speculate about why the charge has been
reduced, and it is not to influence your verdict on the
remaining charges. Your responsibility now is to decide
the charges that remain pending against the defendant based
solely on the evidence concerning those charges now before
you."

The defendant then testified in his own defense. He denied

that he assaulted the victim but admitted that he "walked over

to her and . . . grabbed the phone from her" because he was

"jealous." The defendant acknowledged that he may have "scared"

the victim by doing so.

As promised, the judge's final charge explained the

elements of assault and battery in greater detail. Among other

things the judge explained that "[a] touching is any physical

contact, however slight." The judge also instructed on both

harmful and offensive battery as follows: "To prove the third

element, the Commonwealth must prove that the touching was

either likely to cause bodily harm to the alleged victim, or was

offensive. A touching is offens[ive] if it is without consent."

The judge later provided these instructions in writing to the

jury after they sent a note asking for the "written definitions

of . . . the relevant laws."

Discussion. The defendant raises various related

challenges to the judge's amendment of the strangulation charge

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to assault and battery.3 Specifically, the defendant argues that

the amendment (1) resulted in a material variance because it

allowed the jury to convict the defendant based on conduct

outside the scope of the complaint, (2) was an impermissible

substantive amendment because it changed the offense from one

that required a touching of the victim's neck to one that could

be satisfied by a touching anywhere on her body, (3) was an

impermissible substantive amendment because offensive battery

contains an element (lack of consent) that strangulation does

not, and (4) prejudiced the defense by impacting strategic

choices and allowing the jury to convict without relying on any

contested evidence.

We begin by addressing whether the defendant preserved

these objections for appeal. The Commonwealth contends that he

did not because the sole basis for defense counsel's objection

at trial was that there was insufficient evidence of an assault

3 We are unpersuaded by the Commonwealth's assertion that
the judge did not, and could not, amend the complaint because
there was no underlying motion to amend. A complaint can be
amended constructively by "the government (usually during its
presentation of evidence and/or its argument), the court
(usually through its instructions to the jury), or both."
Commonwealth v. Garcia, 95 Mass. App. Ct. 1, 4 (2019), quoting
Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691-692 (2000).
Here, the judge expressly stated mid-trial that he was reducing
the strangulation charge to assault and battery, he instructed
the jury on assault and battery, and the complaint and docket
contain notations that the strangulation charge was "amended" to
assault and battery.

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and battery. Conversely, the defendant contends that defense

counsel raised repeated objections that the amendment changed

the elements of the offense and allowed the jury to convict

based on conduct not charged in the complaint. The record

supports the defendant's position. At no point did defense

counsel argue that there was insufficient evidence of an assault

and battery. Rather, he objected on grounds that "there are

different elements" and "the specific element[s] of

[strangulation] are not the specific elements of assault and

battery." He also asserted that "the Court is deciding . . . to

charge [the defendant] with a case that is not before the

Court," that the amendment would "bring in a new charge," and

that he (defense counsel) "prepared [the] case as a charge of

strangulation." Moreover, when the judge asked whether there

could be "a strangulation without an assault and battery,"

defense counsel replied, "[T]here has to be a touching and

things like that, but this is to a different area." While

overruling defense counsel's objection, the judge stated that he

understood it and that the defendant's rights "are reserved on

that." Based on this exchange, we conclude that the defendant

has preserved the issues he raises on appeal. Our review is

thus for prejudicial error. See Commonwealth v. Cruz, 445 Mass.

589, 591 (2005).

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We agree with the defendant that the amendment was in error

because it allowed the jury to convict him based on conduct not

charged in the complaint. Under G. L. c. 263, § 4, "[n]o person

shall be held to answer in any court for an alleged crime,

except upon an indictment by a grand jury or upon a complaint

before a district court [or other specified courts] . . . or in

proceedings before a court-martial." A complaint is therefore

"subject to amendment as to form, if without prejudice to the

defendant, but not as to substance." Commonwealth v. Bynoe, 49

Mass. App. Ct. 687, 691 (2000). "[A]n amendment may not broaden

the charges against a defendant." Commonwealth v. Ruidiaz, 65

Mass. App. Ct. 462, 464 (2006).

Here, the judge reasoned that the complaint could properly

be amended on the premise that assault and battery is a lesser

included offense of strangulation. As a general matter, it is

true that a complaint "not only charges the principal offense

but also lesser included offenses, and a defendant may be

convicted under such a complaint for a lesser included offense."

Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981).

But even assuming, without deciding, that assault and battery is

a lesser included offense of strangulation,4 the problem in this

4 The defendant argues that assault and battery, where the
theory is an offensive touching, is not a lesser included
offense of strangulation because offensive battery requires

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case is that the victim testified about multiple acts committed

by the defendant that could have constituted an assault and

battery, and the judge did not limit the jury's consideration to

the conduct charged in the complaint, i.e., touching of the

neck. A similar situation was presented in Commonwealth v.

Dean, 109 Mass. 349, 351 (1872), where the defendants were

indicted for rape, but the Commonwealth proceeded at trial on

the lesser included offense of assault. Although the

Commonwealth presented evidence that the victim was assaulted at

least twice, the judge declined the defendants' request for an

instruction that the jury could not "convict[] for any assault

not connected with the rape originally charged." Id. at 352.

The court held that this was reversible error because it allowed

the jury to convict the defendants "upon evidence of another

proof of lack of consent whereas strangulation does not. This
argument is not without force. See Commonwealth v. Farrell, 31
Mass. App. Ct. 267, 268-269 (1991) (offensive battery not lesser
included offense of indecent assault and battery on child under
fourteen because latter does not require proof of lack of
consent). While the Commonwealth correctly observes that an
alternative means of committing a crime does not preclude that
crime from being a lesser included offense of another crime,
"comparison of [the] elements [of the crimes] must focus on the
specific variations that the defendant is alleged to have
committed." Commonwealth v. Roderiques, 462 Mass. 415, 421
(2012). Here, the judge specifically instructed the jury on
offensive battery, and the Commonwealth raises no argument that
assault and battery under that theory is a lesser included
offense of strangulation. Because we resolve the appeal on
another ground, however, we need not reach this issue.

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offence of the same kind, committed on the same day," but not

charged in the indictment. Id.

Similarly here, without an instruction that the acts

underlying the assault and battery must be related to those

underlying the strangulation charge, the amendment allowed the

jury to convict the defendant of an offense not charged in the

complaint. See Commonwealth v. Barbosa, 421 Mass. 547, 552

(1995) (error in Dean could have been avoided by "instruct[ing]

the jury to render their verdict only on the factual incident

which was the basis for the indictment"). The defendant raised

this possibility to the judge when he argued that "there has to

be a touching . . . but this is to a different area." Thus, for

at least this reason, we conclude that the amendment was in

error. Cf. id. at 551-554 (where indictment referred to single

act of distribution but Commonwealth presented evidence of two

acts, reversal required because of substantial risk that

defendant convicted of crime for which he was not indicted);

Commonwealth v. Garcia, 95 Mass. App. Ct. 1, 4-6 (2019) (where

indictment charged rape of child based on "sexual intercourse,"

but jury heard evidence and were instructed regarding

"unnatural" or "oral" intercourse, indictment was constructively

amended as to substance, requiring reversal); Commonwealth v.

Pearson, 77 Mass. App. Ct. 95, 101-102 (2010) ("prejudicial to

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permit the Commonwealth to amend its bill of particulars during

the trial and, over the defendant's objection, to allege that

the defendant committed different [transaction involving stolen

credit card]" that was not charged in indictment).

We turn to whether the defendant has demonstrated

prejudice. See Bynoe, 49 Mass. App. Ct. at 692-693 (in case not

involving felony prosecution on indictment, prejudice must be

shown, and is not presumed, from erroneous amendment of charge).

An error is prejudicial "if one cannot say, with fair assurance,

after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not

substantially swayed by the error." Commonwealth v. Flebotte,

417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15

Mass. App. Ct. 437, 445 (1983).

Here, we are unable to say with fair assurance that the

jury did not convict the defendant based on uncharged conduct.

Contrary to the Commonwealth's assertion that the other

touchings were "incidental to the touching of [the victim's]

neck," the victim testified repeatedly that the defendant jumped

on her out of nowhere, pushed down on her chest with one arm,

and used the other arm to grab her phone. As the judge

observed, "[the victim] generally focused on the chest area" and

mentioned her neck "only once" (until she was shown the

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photographs, see supra n.2). Given the victim's focus on the

defendant's other acts, we cannot say with confidence that the

error in amending the charge to assault and battery, without

limiting the charge to the touching of the neck, "did not

influence the jury, or had but very slight effect." Flebotte,

417 Mass. at 353, quoting Peruzzi, 15 Mass. App. Ct. at 445.

This is especially so where the judge instructed the jury on

offensive battery, which does not require proof of bodily harm.

Whether the victim suffered bodily harm was a contested issue at

trial, and so the instruction on offensive battery increased the

risk that the jury convicted the defendant based on his initial

acts of jumping on the victim and pushing down on her chest.

The Commonwealth's closing argument did not mitigate this risk

because it did not focus the jury on whether the defendant

touched the victim's neck, but rather could be read to be

arguing that the defendant's other acts also constituted assault

and battery.5 Cf. Commonwealth v. Kelly, 470 Mass. 682, 702

(2015) (judge's failure to give separate and distinct acts

instruction not mitigated by prosecutor's closing argument,

5 In particular, the Commonwealth referred to the victim's
injuries "to her neck area and chest" and then argued: "[A]s a
result of the defendant's jealousy, he proceeds to grab her
phone then gets on top of her, and uses force and both of his
hands, and I would submit to you that that is assault and
battery and that has been constant."

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which "did not specifically point out which alleged acts

corresponded to which charges"). For these reasons we conclude

that the error was prejudicial, requiring reversal of the

defendant's conviction. Cf. Commonwealth v. Farrell, 31 Mass.

App. Ct. 267, 269 (1991) ("defendant's conviction of an offense

not alleged in the complaint [could not] stand" under

substantial risk of miscarriage of justice standard); Rodriguez,

11 Mass. App. Ct. at 382 ("We are satisfied that to be convicted

of an offense not charged would certainly be a miscarriage of

justice").6

Judgment reversed.

Verdict set aside.

By the Court (Blake, C.J.,
Shin & Walsh, JJ.7),

Clerk

Entered: May 28, 2025.

6 The parties did not brief the issue of whether double
jeopardy would bar retrial and in what circumstances. Should
the Commonwealth retry the defendant, the issue can be addressed
at that time.

7 The panelists are listed in order of seniority.

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