Commonwealth v. Alexandr Ivanenko.

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

23-P-393

COMMONWEALTH

vs.

ALEXANDR IVANENKO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Alexandr Ivanenko, was convicted of assault and

battery on an elderly person causing bodily injury (assault and

battery on an elder), and assault and battery.1 On appeal he

contends that the judge's instructions on intent and accident

created a substantial risk of a miscarriage of justice, the

judge's failure to poll the jurors with respect to alleged

exposure to "extraneous information" created a substantial risk

of a miscarriage of justice, and the conviction of assault and

battery should be vacated as duplicative of the conviction of

assault and battery on an elder. We vacate the judgment of

1 The defendant was charged with assault and battery by means of
a dangerous weapon, but the jury found him guilty of the lesser
included offense of simple assault and battery.
conviction of assault and battery because it is duplicative of

the assault and battery on an elder conviction, but otherwise

affirm.

Background. On the morning of June 13, 2022, a sixty-seven

year old woman (the victim) walked into the Massachusetts Bay

Transportation Authority (MBTA) Alewife Station. As she entered

the station, a man, later identified as the defendant, walked

toward her moving "very fast." The victim had her head down and

was about to pass through one of the doors when the defendant

reached out and struck her near her neck, causing her to fall.

The victim landed on her right side and sustained injuries to

her head and elbow, as well as a broken ankle. While the victim

was on the ground, the defendant walked past her and exited the

station. Officer Christopher Mansur of the MBTA transit police

investigated the incident and obtained surveillance video

recordings that show the incident. "Video clips" from the

surveillance video recordings were admitted as exhibits at trial

and played for the jury.

The defendant was tried on a three-count complaint charging

assault and battery on an elder, assault and battery by means of

a dangerous weapon (ABDW), and strangulation or suffocation. At

the close of the Commonwealth's case, the judge allowed the

defendant's motion for a required finding of not guilty of the

strangulation count. During the jury charge, the judge provided

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a supplemental instruction on accident for both the assault and

battery on an elder and ABDW counts. The judge also provided an

instruction on assault and battery as a lesser included offense

of ABDW.

While deliberating, the jury asked three separate times to

view the surveillance video footage. The first two times, the

jury returned to the courtroom and viewed the video footage.

The third time, the jury also asked to "possibly enlarge[e]" the

"lower left-hand corner" of one of the video clips. The judge

denied the request and instructed the jury not to expand the

video footage. The judge then allowed the jury to watch the

video footage in the deliberation room, without objection from

the defendant.

The jury subsequently returned a guilty verdict on the

assault and battery on an elder count and of the lesser included

offense of simple assault and battery on the ABDW count.

Judgments of conviction entered, and the defendant now appeals

therefrom.

Discussion. 1. Jury instructions. The defendant argues

that the judge's accident instruction, read in conjunction with

the instruction on assault and battery on an elder, "suggested

that to acquit [the defendant], the jury would have to find that

his contact with [the victim] was the accidental result of an

accidental intermediate act." The claim is unpersuasive.

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Where, as here, the defendant did not object to the jury

instructions at trial, "we review his claim to determine first

whether there was error, and if so, we then inquire whether the

error created a substantial risk of a miscarriage of justice."

Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "Trial

judges have considerable discretion in framing jury

instructions" (quotation and citation omitted). Commonwealth v.

Kelly, 470 Mass. 682, 688 (2015). On review, an appellate court

"evaluate[s] jury instructions as a whole and interpret[s] them

as would a reasonable juror"; the court "do[es] not require that

judges use particular words, but only that they convey the

relevant legal concepts properly." Id. at 697.

We discern no error in the judge's instructions. First,

the instructions followed Instructions 6.280 and 9.100 of the

Criminal Model Jury Instructions for Use in the District Court

(2022), for assault and battery on an elder and accident.

Moreover, the instructions on the elements of the charges

conveyed that to convict the defendant, "the jury must find

beyond a reasonable doubt that the defendant touched the victim

without the victim's consent and without justification and that

he did so intentionally." Commonwealth v. Garofalo, 46 Mass.

App. Ct. 191, 193 (1999). The supplemental instruction on

accident, which the defendant requested, informed the jury that

an accident is "an unintentional event occurring through

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inadvertence, mistake, or negligence." Commonwealth v. Moore,

92 Mass. App. Ct. 40, 48 (2017), quoting Commonwealth v.

Figueroa, 56 Mass. App. Ct. 641, 650 (2002). The judge's

instructions told the jury that they must find that the

defendant intended to touch the victim, and that the intended

touching was not the result of mistake or inadvertence.

Accordingly, there was no error. See Commonwealth v. Chapman,

433 Mass. 481, 490 (2001) (jury instructions "must be construed

as a whole" and not as isolated statements [citation omitted]).

Even assuming, arguendo, that some portion of the

instructions was erroneous, it did not create a substantial risk

of a miscarriage of justice. See Commonwealth v. Mitchell, 67

Mass. App. Ct. 556, 565 (2006), quoting Garofalo, 46 Mass. App.

Ct. at 192 n.3 (in analyzing whether instruction on assault and

battery created substantial risk of miscarriage of justice,

"[t]he critical question . . . is whether, viewing the charge in

its entirety, there was a reasonable likelihood that the jury

could have understood the judge's instructions to allow the

defendant's conviction on proof other than that he had engaged

in an intentional and unjustified touching of the person of the

victim"). Here, the judge's repeated instructions that the

Commonwealth must prove that the defendant intended to touch the

victim and that intent to touch meant that he "consciously" and

"deliberately intended the touching to occur," and that the

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touching "was not merely accidental or negligent," negated any

risk of jury confusion. Viewed in their entirety, the

instructions on intent and accident were clear and did not

create a substantial risk of a miscarriage of justice.

Furthermore, the evidence that the defendant acted with intent

to strike the victim was overwhelming in view of the victim and

eyewitness testimony combined with the corroborating

surveillance video footage. There was no "factual scenario from

which [the jury] likely would have concluded that the

defendant's contact with the victim was the accidental result of

an intentional and lawful intermediate act." Mitchell, supra.

2. Jury's potential exposure to extraneous matter. The

defendant also contends that the judge abused his discretion by

failing to ask the jurors whether they had followed his

instruction not to enlarge the surveillance video footage after

they returned from deliberations. The defendant claims that

because the judge did not make this inquiry, an extraneous

matter was therefore introduced into jury deliberations. We

disagree.

We review a judge's determination regarding the existence

of extraneous influence for abuse of discretion. See

Commonwealth v. Watt, 484 Mass. 742, 758 (2020); Commonwealth v.

Bright, 463 Mass. 421, 443 (2012). A defendant is "entitled to

a decision on the evidence at trial" and, therefore, a jury's

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verdict may not be based on extraneous information.

Commonwealth v. Fidler, 377 Mass. 192, 197 (1979). The

defendant must demonstrate "by a preponderance of the evidence"

that the jury were exposed to an extraneous matter.

Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). "An

extraneous matter is one that involves information not part of

the evidence at trial 'and raises a serious question of possible

prejudice.'" Commonwealth v. Guisti, 434 Mass. 245, 251 (2001),

quoting Commonwealth v. Kater, 432 Mass. 404, 414 (2000).

There is no indication in the record that the jury were

exposed to extraneous information. Even if we were to grant the

defendant the very generous assumption that enlarging a video

clip that had been admitted in evidence somehow amounts to

extraneous information, "the fundamental difficulty with the

defendant's contention is that it requires this court to

conclude that the jury did not follow the judge's very specific

instruction to disregard [the evidence]. Such a conclusion

would be at odds with both our case law and our basic

assumptions about how jurors perform their function. Jurors are

presumed to follow the law as instructed." Commonwealth v.

Silva, 93 Mass. App. Ct. 609, 615 (2018). Therefore, we discern

no abuse of discretion.

3. Duplicative convictions. The defendant argues that the

conviction of assault and battery is duplicative of the

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conviction of assault and battery on an elder. The Commonwealth

concedes that the convictions are duplicative and that the

conviction of the lesser offense of assault and battery must be

vacated. Having conducted our own review of the record, see

Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379 (1987), we

agree.

Conclusion. The judgment of conviction of assault and

battery is vacated, the finding is set aside, and that count of

the complaint is to be dismissed. On the remaining conviction

of assault and battery on an elder, the judgment is affirmed.

So ordered.

By the Court (Milkey,
Massing & Neyman, JJ.2),

Assistant Clerk

Entered: March 26, 2024.

2 The panelists are listed in order of seniority.
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