COMMONWEALTH v. ROB R., a Juvenile.

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

22-P-846

COMMONWEALTH

vs.

ROB R., a juvenile.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The juvenile appeals from his conviction, after a jury

trial, of assault and battery with a dangerous weapon (to wit:

shod foot).2 G. L. c. 265, § 15A (b). He makes two arguments on

appeal. First, he contends that the trial judge erred by

failing to instruct the jury, sua sponte, on the lesser included

offense of assault and battery, and that this error resulted in

a substantial risk of a miscarriage of justice. Second, he

argues that the trial judge abused her discretion by denying his

motion to exclude "incomplete" surveillance video recordings.

1 We refer to the juvenile using a pseudonym.
2 The juvenile was acquitted on two indictments that charged him
with (1) armed assault with intent to murder and (2) assault and
battery with a dangerous weapon (to wit: a knife) causing
serious bodily injury.
Because we discern no error or abuse of discretion in the

judge's rulings, we affirm.

Discussion. a. Lesser included offense instruction.

"Ordinarily, even in the absence of a specific request, . . . a

judge should instruct on lesser included offenses when there is

a rational basis in the evidence to do so." Commonwealth v.

Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986). However, where a

defendant pursues an "all-or-nothing defense strategy," the

trial judge has "no duty to undercut such a strategy by

volunteering an instruction on a middle ground," i.e., by

providing a lesser included offense instruction sua sponte.

Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 (2002). Here,

the juvenile did not request a lesser included offense

instruction to the assault and battery with a dangerous weapon

charge.3 Instead, defense counsel argued in closing that the

juvenile should be acquitted because he "wasn't in a position to

form the intent required to commit the crimes." Where, as here,

an instruction on a lesser included offense would be

inconsistent with the defendant's trial strategy, the judge is

not required to give it and it is generally prudent not to do

so. See Mills, 54 Mass. App. Ct. at 554 (concluding that "no

error flowed form the judge's failure to instruct, sua sponte,

3 Indeed, defense counsel declined such an instruction.

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that simple assault and battery was a lesser included offense of

assault and battery by means of a dangerous weapon" where

"[d]efense counsel's omission of a request for an instruction on

the subject appear[ed] consistent with an all-or-nothing defense

strategy"). See also Commonwealth v. Roberts, 407 Mass. 731,

737 (1990) (defendant's argument on appeal, that jury might have

been reluctant to acquit without option of lesser included

offense was "inconsistent" with his "all-or-nothing" trial

strategy; "the instructions . . . requested after the fact,

might have undermined his tactical decision to seek an

acquittal").

Furthermore, even if the juvenile had requested a lesser

included offense instruction, we find no rational basis in the

evidence that would have required the trial judge to provide

one. See Yunggebauer, 23 Mass. App. Ct. at 52. "[E]ven when

evidence is introduced that would justify conviction for a

lesser included offense, the defendant is not entitled to an

instruction thereupon unless the [p]roof on the 'elements

differentiating the two crimes is sufficiently in dispute so

that the jury may consistently find the defendant innocent of

the greater and guilty of the lesser included offense.'"

Commonwealth v. Souza, 428 Mass. 478, 494 (1998), quoting

Commonwealth v. Egerton, 396 Mass. 499, 504 (1986). See

Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998).

3
In this case, the only element differentiating the greater

offense of assault and battery with a dangerous weapon from the

lesser included offense of assault and battery is whether the

sneakers were used as a dangerous weapon, i.e., in a way that

was "capable of producing serious bodily harm" (citation

omitted). Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).

It is well-settled that "[f]ootwear, such as a shoe, when used

to kick, can be a dangerous weapon" (citation omitted). Id. at

311.

Here, there is overwhelming evidence that the juvenile's

sneakers were used as a dangerous weapon. The juvenile can be

seen on the video recording kicking the victim repeatedly and

forcefully. There is no dispute as to whether the juvenile was

wearing his sneakers during the assault, and the sneakers

themselves were introduced into evidence. Also, consistent with

this video recording, the victim testified that he "got kicked

everywhere. I know I got kicked in the head at least twice."

Finally, photographs of the victim's injuries, including a

bruise on his head, were introduced into evidence. See

Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984),

quoting Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975)

("Of course where the neutral object is in fact used to inflict

serious injury it would clearly be a dangerous weapon").

4
Given the juvenile's decision to pursue an all-or-nothing

strategy at trial, the overwhelming evidence of his use of the

sneakers as a dangerous weapon, and the lack of any evidence of

another battery committed without use of the sneakers,4 we

conclude that the judge did not err by not instructing the jury,

sua sponte, on the lesser included offense of assault and

battery.

b. Video surveillance recording. The juvenile also argues

that the trial judge abused her discretion by denying his motion

to exclude "incomplete" surveillance video recordings. Because

we conclude that the missing portions of the video do not render

the entire recording untrustworthy, we affirm.

"Admissibility of evidence 'is largely committed to the

discretion of the trial judge.'" Commonwealth v. Leneski, 66

Mass. App. Ct. 291, 294 (2006), quoting Henderson v. D'Annolfo,

15 Mass. App. Ct. 413, 429 (1983). Ordinarily, "videotapes

should be admissible as evidence if they are relevant, they

provide a fair representation of that which they purport to

4 For example, there is no evidence that the juvenile connected
any blows with his fists or elbows. Importantly, however, as
noted above, the existence of such evidence would not change our
analysis because "[e]ven when evidence is introduced that would
justify conviction for a lesser included offense, the defendant
is not entitled to an instruction thereupon unless . . . the
jury may consistently find the defendant innocent of the greater
[offense] and guilty of the lesser included offense'" (emphasis
added). Souza, 428 Mass. at 494, quoting Egerton, 396 Mass. at
504.

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depict, and they are not otherwise barred by an exclusionary

rule." Commonwealth v. Mahoney, 400 Mass. 524, 527 (1987).

"The task of the trial court, in determining whether to admit

tape recordings into evidence which contain [missing] or

inaudible portions, is to assess whether the . . . portions are

so substantial, in view of the purpose for which the tapes are

offered, as to render the recording as a whole untrustworthy"

(citations and quotations omitted). Commonwealth v. Allen, 22

Mass. App. Ct. 413, 422 (1986). Otherwise, "[a]ny concerns that

the defendant ha[s] regarding the surveillance procedures, . . .

the method of storing and reproducing the video material," or

"the incompleteness of the [video]" are "'properly the subject

of cross-examination and affect[] the weight, not the

admissibility, of the' [evidence]." Leneski, 66 Mass. App. Ct.

at 295-296, quoting Mahoney, 400 Mass. At 530.

Here, the juvenile argues that the video recordings

proffered by the Commonwealth were not a fair depiction of the

incident because they were missing portions that would have been

favorable to the juvenile. Specifically, he contends that the

missing video would have shown the victim initiate an attack

against the juvenile outside of the complex just prior to the

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kicking incident.5 However, even if this were true, there is

nothing to indicate that the videos were inaccurate as to the

acts which gave rise to this charge, i.e., when the juvenile

repeatedly kicked the victim inside the facility. We conclude

that the judge did not abuse her discretion in denying the

juvenile's motion to exclude the video recordings.6

Conclusion. The juvenile's conviction of one count of

assault and battery with a dangerous weapon, in violation of

G. L. c. 265, § 15A (b), is affirmed.

Judgment affirmed.

By the Court (Green, C.J.,
Hand & Hodgens, JJ.7),

Clerk

Entered: November 22, 2023.

5 There is, in fact, one video that shows an obstructed view of
this initial encounter. The video appears to be consistent with
the victim's testimony at trial.
6 Further, even if that were not the case, we discern no

prejudice to the defendant resulting from the admission of those
recordings. The juvenile suggested at oral argument that the
missing video recording would have shed light on his "state of
mind," which would have given the jury a better understanding of
the "bigger picture." We do not consider this to be a legally
sufficient explanation for how the missing video could have been
exculpatory.
7 The panelists are listed in order of seniority.

7