Commonwealth v. Joshua M. Lofink.

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-194

COMMONWEALTH

vs.

JOSHUA M. LOFINK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following an acrimonious exchange between the defendant and

a group of strangers who criticized the manner in which he and

his girlfriend were treating their dog, the defendant stabbed

two men of the group and slashed the tires of one of their cars.

As a result, the defendant was convicted of two counts of

mayhem, in violation of G. L. c. 256, § 14, two counts of

assault and battery by means of a dangerous weapon causing

serious bodily injury (ABDW-SBI), in violation of G. L. c. 265,

§ 15A (c) (i), and one count of vandalism, in violation of G. L.

c. 266, § 126A. On appeal, the defendant contends that the

judge erred by not instructing the jury that ABDW-SBI is a

lesser included offense of mayhem, and trial counsel was
ineffective for not requesting that instruction. He further

argues that the convictions of ABDW-SBI are duplicative of his

convictions of mayhem and that his conviction of vandalism

should be vacated because the indictment failed to set forth the

elements of the offense.

It is undisputed that the convictions of ABDW-SBI were

based on the same facts that supported the convictions of

mayhem, and the jury were not specifically instructed that the

offenses must be supported by separate and distinct acts.

Consequently, the convictions are duplicative, and we reverse

the two convictions of ABDW-SBI and set aside the verdicts. We

affirm the two convictions of mayhem and the conviction of

vandalism.

Background. The jury could have found the following facts

beyond a reasonable doubt. On the evening of September 16,

2021, the defendant and his girlfriend took their dog for a

walk. As the two walked down the staircase from their apartment

to the street, they pulled the dog down the steps causing the

dog's head to hit and bounce off each step. The two were

yelling at the dog, who got loose and ran down the middle of the

street. These events were seen by a group of friends, including

the two victims, Ernest Ferry, and his cousin, Jamie Hassan, as

well as Ferry's girlfriend and three children. Ferry, Hassan,

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and the girlfriend were in separate vehicles parked across the

street from the defendant's apartment. Ferry accused the

defendant and his girlfriend of mistreating the dog. Following

the initial verbal altercation, the victims and Ferry's

girlfriend drove to a nearby parking lot of a local liquor store

where another confrontation ensued. The defendant's girlfriend

and Ferry's girlfriend shouted at each other about the dog's

mistreatment. Ferry also shouted at the defendant's girlfriend

until, at a certain point, Ferry told the group "let's go" and

began to walk away. As Ferry was walking toward his car, the

defendant stabbed him in the back. The defendant then walked

over to Ferry's car and slashed its tires. Hassan responded by

jumping back into his car and following the defendant. When

Hassan approached the defendant, he asked the defendant if he

had stabbed his cousin, to which the defendant replied: "Yeah

and you're next." The defendant then stabbed Hassan through the

open driver's side window.

Both Ferry and Hassan suffered serious injuries. Ferry had

a punctured lung, multiple lacerations, deep stab wounds to his

left arm, and required three units of blood when he arrived at

the hospital. Hassan's left arm also had several stab wounds,

and the emergency physician who treated him testified at trial

that "had EMS not place[d] the tourniquet [on his arm] promptly,

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there was certainly risk that he would have died from blood loss

in the field."

Discussion. Under the circumstances presented, as the

Commonwealth concedes, the two charges of ABDW-SBI were each a

lesser included offense of the two charges of mayhem. "'A crime

is a lesser-included offense of another crime if each of its

elements is also an element of the other crime.'" Commonwealth

v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v.

Perry, 391 Mass. 808, 813 (1984). "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. Forbes, 86

Mass. App. Ct. 197, 202(2014), quoting Commonwealth v. Crocker,

384 Mass. 353, 357 (1981).

Moreover, while convictions on both a greater and lesser

included offense are permissible where the convictions rest on

separate and distinct acts, such was not the case here. See

Commonwealth v. King, 445 Mass. 217, 225 (2005) ("The acts that

support the two convictions cannot be 'so closely related in

fact as to constitute in substance but a single crime'"

[citation omitted]). To the contrary, as we have noted, it is

undisputed that the mayhem and ABDW-SBI convictions were based

on one course of conduct with respect to each of the two

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victims. There was no evidence of separate and distinct acts

and, as a result, the conclusion that the convictions rested on

the same act or series of acts is inescapable. See Commonwealth

v. Rateree, 495 Mass. 610, 628-629 (2025).

Furthermore, even if we were to view the evidence

differently, the jury was not provided with any guidance as to

which acts supported each charge other than specifying which

acts corresponded to the named victims. Nor did the verdict

slip clarify the issue. Accordingly, the appropriate remedy is

to vacate the convictions of ABDW-SBI. See Commonwealth v.

Martin, 425 Mass. 718, 722-723 (1997).1

The defendant claims that the judge's failure to instruct

the jury, sua sponte, that ABDW-SBI was a lesser included

offense of mayhem created a substantial risk of a miscarriage of

justice. We discern no error and no such risk. Rather, we view

the record as demonstrating that the absence of a request for a

charge on a lesser included offense by trial counsel amounted to

a "calculated, tactical, all-or-nothing choice." Commonwealth

v. Mills, 54 Mass. App. Ct. 552, 555 (2002). Because the

defendant pursued an "all or nothing defense," he effectively

1 Because the sentences on each conviction of ABDW-SBI are
to be served concurrently with the first mayhem conviction, we
need not remand the case for resentencing. See Commonwealth v.
Johnson, 461 Mass. 44, 54 n.12 (2011).

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negated any responsibility for the judge to give an instruction

on a lesser included offense. See id.

In addition, any error did not create a substantial risk of

a miscarriage of justice. As the defendant points out in his

brief, the policy favoring lesser included offense instructions

is to permit the jury "to convict of the offense established by

the evidence, rather than forcing them to choose between

convicting the defendant of an offense not fully established by

the evidence or acquitting." Commonwealth v. Woodward, 427

Mass. 659, 664-665 (1998). The defendant contends that, if

given a lesser included offense instruction, "the jury could

have found the defendant not guilty of the 'heinous' crime of

mayhem but guilty of a serious crime that carries a lower

maximum sentence." Given the posture of this case, the

defendant's contention is unavailing. First, the evidence did

fully establish the offense of mayhem. Second, because the jury

were instructed on both mayhem and ABDW-SBI as stand-alone

offenses, they were not forced to choose between mayhem

convictions and acquittal; they had the option to find him not

guilty of mayhem and still find him guilty of ABDW-SBI.2

2 Furthermore, in light of our conclusion that the absence
of an instruction on the lesser included offense of ABDW-SBI did
not create a substantial risk of a miscarriage of justice, there
is no support for the defendant's related claim that trial
counsel provided him with ineffective assistance by not

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Next, the defendant contends that his conviction of

vandalism should be vacated, and the indictment dismissed

because the indictment did not include the statutory language

regarding the requisite state of mind for the offense. We

discern no merit to this argument.3 To begin with, the

indictment provided the defendant with sufficient notice of the

crime for which he had been indicted. The indictment included a

description of the crime charged as well as reference to the

specific criminal statute.4 As such, the indictment set forth

sufficient information to provide the defendant with notice and

knowledge of the nature of the crime against him. See

Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999).

Furthermore, the defendant failed to raise this issue

either before or during trial. The argument is therefore

requesting the instruction. See Commonwealth v. Randolph, 438
Mass. 290, 295-296 (2002).

3 The defendant further contends that because the indictment
is defective, he was convicted in violation of his rights under
art. 12 of the Declaration of Rights. This too is an argument
with no merit.

4 Commonwealth v. Cooper, 264 Mass. 378, 379-380 (1928), on
which the defendant relies, is distinguishable. In that case,
an indictment which allegedly charged the defendant with
"attempt[ing] to burn [a] building" was defective because there
was no reference within the indictment itself to a particular
statute and the indictment omitted the common law definition of
arson: "the malicious and willful burning [of] the house or
outhouse of another man." Id. at 379-380.

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waived. See Commonwealth v. Lamont L. 438 Mass. 842, 845

(2003); G. L. c. 277, § 47A.5 Nor did the defendant request a

bill of particulars pursuant to Mass. R. Crim. P. 13 (b), as

appearing in 442 Mass 1516 (2004), in connection with this

indictment.

Conclusion. The judgments on the defendant's convictions

of mayhem and the conviction of vandalism are affirmed. The

judgments on the defendant's convictions of assault and battery

by means of a dangerous weapon causing serious bodily injury are

reversed, the verdicts are set aside, and judgments shall enter

for the defendant.

So ordered.

By the Court (Vuono,
Massing & Allen, JJ.6),

Clerk

Entered: November 24, 2025.

5 "In a criminal case, any defense or objection based upon
defects in the . . . indictment . . . shall only be raised prior
to trial . . . ." G. L. c. 277, § 47A. "The failure to raise
any such defense or objection by motion prior to trial shall
constitute a waiver thereof . . . ." Id.

6 The panelists are listed in order of seniority.

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