MAYHEM AND DUPLICATIVE CHARGE

In  Commonwealth v. Forbes (2014), affirmed the defendant’s conviction of mayhem, G.L. c.265, §14 (first theory), but vacated his conviction of assault and battery causing serious bodily injury, G.L. c.265, §13A(b)(i).  The case arose from an incident in which the defendant got into an argument with a coach of the opposing team in his son’s basketball game, and bit off a part of the coach’s ear.  He was charged with mayhem and assault and battery causing serious bodily injury.  Under the statute, mayhem will provide punishment for “malicious intent to maim or disfigure another person.” The defendant argued that he had not, since he only bit off a portion of the ear.   The Court rejected the defendant’s “argu[ment] that because it is undisputed that he bit off only a portion [of] the victim’s ear, he cannot reasonably be said to have cut off or torn off ‘an ear.’” In the Court’s view, “one need not cut off or tear off an entire ear to be guilty of mayhem. Simply put, we think that interpreting ‘an ear’ as necessarily denoting an entire ear ascribes to the word ‘an’ a mathematical precision that was never intended…. Certainly, we would not hesitate to affirm a mayhem conviction, for instance, where the defendant had removed all but a tiny portion of the victim’s ear. At least where, as here, the evidence shows that the defendant severed a substantial portion of the victim’s ear, we conclude that a jury reasonably could have concluded that the defendant’s actions amounted to ‘cut[ting] or tear[ing] off an ear.’”

The Appeals Court ruled that the defendant’s conviction of assault and battery causing serious bodily injury had to be vacated because it was duplicative of the conviction of mayhem (first theory). In reaching that conclusion, the Court “appl[ied] the ‘long-prevailing test’ that asks ‘whether each crime requires proof of an additional fact that the other does not.’ Commonwealth v. Crocker, 384 Mass. 353, 357 (1981).” The Court concluded that “[w]hile mayhem (first theory) contains an element — specific intent to maim or disfigure — that is not contained in assault and battery causing serious bodily injury, the converse is not true…. [T]he Commonwealth could not prove that a defendant committed any of the enumerated offenses under the first branch of the mayhem statute without also proving that he committed an assault and battery causing serious bodily injury.”

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