On November 22, 1978, a Superior Court jury convicted Kenneth A. Appleby of assault and battery with a dangerous weapon, to wit: a riding crop. G.L.c. 265, § 15A.
Kenneth Appleby and Steven Cromer were engaged in a homosexual, sadomasochistic relationship for over two years, during most of which period they lived together. Appleby frequently beat Cromer. Appleby's general defense to the indictments was that Cromer had consented to the beatings, and that he, Appleby, had intended them for Cromer's sexual gratification. In addition to pressing his arguments on consent and intent in this appeal, he maintains that he should have had a directed verdict because the Commonwealth failed to present a prima facie case of assault and battery by means of a dangerous weapon as set forth in G.L.c. 265, § 15A.
By far the major portion of the Commonwealth's case consisted of the testimony of the alleged victim, Steven Cromer. There follows a summary of his testimony; material from other sources is so noted. The summary continues to the point where we first mentioned Appleby's motion for a directed verdict.
Cromer lived with Appleby during most of the period from June, 1974, until August 31, 1976 (the date of the incident for which Appleby was convicted). His entire relationship
In October, 1975, an enraged Appleby beat Cromer badly with a bullwhip and baseball bat, fracturing his kneecap. Cromer was hospitalized for this injury until December 4. He received surgery to repair the kneecap, and he spent several weeks on crutches thereafter.
En route to the hospital, Appleby suggested to Cromer that they tell hospital personnel that Cromer had had an epileptic seizure and fallen down some stairs, and Cromer, who had had seizures before, agreed and maintained the story throughout the hospital stay. They fabricated the story "[t]o cover things up." When he left the hospital, Cromer returned to Appleby's residence in West Springfield, where he resumed his "duties" as best he could.
When asked what distinguished this October, 1975, incident from other beatings, Cromer stated that it was "going a little over what I was used to." The October, 1975, incident formed the basis of the first indictment, on which the jury acquitted Appleby.
A second incident, the subject of the second indictment, allegedly occurred on February 28, 1976, when Appleby beat Cromer with a bullwhip because of displeasure with a sandwich Cromer had prepared. A friend of Appleby was outside at the time, and Appleby called to this person to bring snow to apply to Cromer's wounds. Cromer liked this "attention": "Other beatings I had, nothing came. No attention was made to me like that. It was unusual in that respect." The jury acquitted Appleby on this indictment as well.
The third incident occurred on August 31, 1976. Cromer served Appleby some ice cream which had melted. This enraged
Cromer maintained that Appleby was sadistic, but denied that he was engaged in a sadomasochistic relationship with Appleby. He denied that he was a homosexual, and he claimed the homosexual acts were forced upon him from the beginning. He said he could not recall whether violence and sexual activity with Appleby occurred close in time. Cromer said "Mr. Appleby explained later that he delighted in violence to an extent that he said it was almost sexual or sexual."
Cromer acquiesced in this relationship because Appleby "took me over in a way.... He had convinced me that people were constantly following me and observing my every action and reporting to him." Cromer told no one about the relationship, and sought aid from no one, because Appleby told him no one would believe him, that he was a "hippie," a "weirdo," and on drugs. He thought that even the police could not "stop" Appleby. He was under "duress" the entire time because he feared that Appleby would harm him or members of his family if he did not continue in their relationship.
At one point Cromer stated that he never protested or told Appleby to stop, because he was afraid to do so. At
Cromer had a low opinion of himself for having got into the situation, and he "lost" himself in his functions at the Appleby residence. He said that after the bullwhip incident, "I felt that I was just a joke — that I had taken the beating and had done nothing about it. Just took the beating, and when he told me to clean up the food off the floor after that, I did, and Jay Robbins [Appleby's friend] came in and saw me on my hands and knees doing this."
At the close of the Commonwealth's case-in-chief, which covered almost 700 pages of the trial transcript, Appleby moved for a directed verdict on the basis that the Commonwealth had failed to establish a prima facie case. The judge denied the motion. The defendant then presented evidence which, including his own testimony, covered almost 600 pages of the transcript. The defendant renewed his motion for a directed verdict at the end of the trial, and it was again denied.
Since the principal question for the jury was one of the credibility of the two main witnesses, Cromer and Appleby, we also summarize Appleby's account of his relationship with Cromer. This summary will continue to the point where we refer to the defense witness Webster.
Appleby's general defense to the three charges was that Cromer had consented to their sadomasochistic relationship. He admitted that he had whipped or beaten Cromer almost daily. He denied, however, that the fractured kneecap was caused by a beating; rather, he asserted the truth of the story of the epileptic seizure and fall down the stairs. (He also testified to witnessing a prior seizure and presented medical evidence of Cromer's epilepsy.) As to the second incident, he denied that he ever beat Cromer severely and said that February 28, 1976, did not stick out in his mind as involving any incident different from the usual daily whippings. Regarding the riding crop incident, Appleby testified that Cromer ran out of the house in his underwear on a rainy night, but said that this occurred on July 24,
Appleby trained attack dogs for a living, and kept whips in his house for that purpose. He ascribed the initiation of the sadomasochistic activities entirely to Cromer. He met Cromer while the latter was "hustling" sex for money on a Springfield street. At that time Appleby was a "conventional" homosexual. The first night they met, Cromer showed him a braided rope he had made from clothesline, and said he liked to be beaten with that. Appleby refused to engage in beatings. Cromer beat himself with the clothesline, and Appleby told him not to use it. In the months before Cromer moved in, their "regular sexual ritual" consisted solely of fellatio and anal intercourse. Cromer told Appleby that he took drugs, and Appleby saw Cromer injecting himself and taking pills.
One evening, Cromer asked to go home with Appleby; the latter assented on the condition that Cromer not bring any drugs. Shortly after they arrived, Cromer spotted one of the whips Appleby used to train dogs. Cromer asked Appleby to beat him with the whip, but the latter refused.
The next day, Cromer telephoned Appleby and asked if he could come to live with him, because some people were following him and trying to kill him. Appleby told Cromer he had taken too many pills. Shortly thereafter, Cromer arrived at Appleby's home and begged to be let in. Appleby told him he could move in if he fulfilled four conditions; Cromer balked at the condition that he give up drugs, but finally acquiesced, and moved all of his belongings into Appleby's home. One of the other conditions was that there would be no beatings, but within two weeks Appleby reneged on this condition and agreed to strike Cromer for the latter's sexual fulfilment.
When shown the riding crop on direct examination, Appleby denied ever using it on Cromer. On cross-examination, however, he admitted that the riding crop "was employed many times," and said that Cromer "favored" the crop, that "he would be whipped until he reached sexual orgasm." The riding crop never caused "welts," but only "redness;" in fact none of the beatings caused more than "redness." Appleby never enjoyed whipping Cromer; he enjoyed the sexual effect it had on Cromer and the fact that Cromer allowed him to have anal intercourse after each beating. When asked if he intended to strike Cromer, he said, "I did it with the intent to turn him on sexually."
Appleby had several other sadomasochistic relationships after Cromer left, and used the implements he had purchased or made for Cromer. All of the implements, including the riding crop, were found at Appleby's house in 1978.
Appleby presented as part of his case expert testimony of Dr. John Peter Webster, a minister and psychotherapist. Webster, who had counseled Appleby after his arrest, also had some knowledge of sadomasochism. We summarize his testimony. He defined sadomasochism as involving a fusion of the sexual and aggressive drives, and said the masochist may need to be "punished" in order to release inhibited sexual feelings. He said that the beatings are generally inseparable from the sexual part of the relationship, and that typically the masochist needs to feel helpless and dependent. Cromer's staying with Appleby under fear of harm to himself or his family "would certainly fit the pattern of masochism."
1. General Laws c. 265, § 15A reads: "Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one half years." Courts have classified dangerous weapons into two categories: those dangerous per se and those dangerous as used. See Commonwealth v. Farrell, 322 Mass. 606, 615 (1948).
(a) A "dangerous weapon per se" is an instrumentality designed and constructed to produce death or great bodily harm. State v. Luckey, 69 Ohio Op.2d 111, 113 (Ohio App. 1974). See also Farrell, supra. Thus, for example, firearms, daggers, stilettos and brass knuckles are usually classified as dangerous per se, because they are designed for the purpose of bodily assault or defense. On the other hand, pocket knives, razors, hammers, wrenches and cutting tools are not so classified. People v. Vaines, 310 Mich. 500, 505 (1945) (dictum). In one case dealing with a "driving whip," the court held that the whip was not dangerous per se because it was not designed for the offense or defense of persons. State v. Page, 15 S.D. 613, 615-616 (1902).
A riding crop is not designed to inflict death or serious bodily harm upon either persons or animals. It is designed
(b) Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be "dangerous weapons." See Farrell, supra (lighted cigarette); Commonwealth v. LeBlanc, 3 Mass.App.Ct. 780, 780 (1975) (automobile door used to strike police officer); Commonwealth v. Tarrant, 2 Mass.App.Ct. 483, 486-487 (1974) ("kitchen-type" knife and German shepherd dog may both be used as "dangerous weapons"), S.C., 367 Mass. 411 (1975); United States v. Loman, 551 F.2d 164, 169 (7th Cir.) (walking stick used with enough force to break it), cert. denied, 433 U.S. 912 (1977); United States v. Johnson, 324 F.2d 264, 266 (4th Cir.1963) (chair brought down upon victim's head); Bennett v. State, 237 Md. 212, 216 (1964) (microphone cord tied around victim's neck, causing inability to speak and marks on throat); Vaines, supra at 505-506 (ordinary jackknife); People v. Buford, 69 Mich.App. 27, 30 (1976) (dictum) (automobile, broomstick, flashlight and lighter fluid may all be dangerous as used); State v. Howard, 125 N.J.Super. 39, 45 (1973) (straight razor). Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case. Farrell, supra at 614-615. Tarrant, 2 Mass. App. Ct. at 487. Vaines, supra at 505. Buford, supra at 32. Howard, supra at 47.
A riding crop, such as the one involved in this case, is capable of being used to inflict serious bodily harm, and possibly even to cause death. The riding crop Cromer identified as that which Appleby used on August 31, was admitted in evidence. We have examined it. It is approximately eighteen inches in length, and constructed of heavy braided leather wrapped around a solid leather core. At its thickest point, it is slightly less than one inch in diameter, tapering off to a diameter of about one-third of an inch. Cromer and Appleby both testified that leather thongs were missing from the end by the time of the trial. The riding crop is more substantial than one might anticipate an ordinary riding crop to be. It resembles instead a short whip. We
(c) The jury in this case had to find that the riding crop was in fact dangerous as used in order to convict Appleby under § 15A. Whether they could lawfully have done so depends on the gravamen of the offense of assault and battery by means of a dangerous weapon as set forth in § 15A.
The meaning of "dangerous weapon" depends to a certain extent on the context in which it is used. We have held that the thrust of the offense of assault with a dangerous weapon, for example, is the outward demonstration of force which breaches the peace, and therefore even an unloaded gun (known only by the defendant to be unloaded) may be a dangerous weapon in that context. Commonwealth v. Henson, 357 Mass. 686, 692 (1970). See also United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir.1971) (assault with dangerous weapon does not require proof gun was loaded). The gist of the offense of armed robbery is robbery "while armed," and thus there is no need to prove the defendant used a weapon other than to threaten. Henson, supra at 690. Commonwealth v. Tarrant, 367 Mass. 411, 415-416, 418 (1975) (dog may be "dangerous weapon" for armed robbery, G.L.c. 265, § 17, and Commonwealth need not prove actually dangerous or used in harm-inflicting manner).
Thus the relevant behavior for the offense of assault with a dangerous weapon, G.L.c. 265, § 15B, is an outward demonstration of force, and § 15B requires only apparent ability to injure. Henson, supra at 692-693. The behavior for robbery while armed with a dangerous weapon, G.L.c. 265, § 17, which distinguishes it from unarmed robbery, G.L.c. 265, § 19, is the objectively menacing behavior of the defendant with the instrumentality causing fear in his victims. Tarrant, 367 Mass. at 415. Whether a weapon not dangerous per se qualifies for either of these statutory crimes is a question of fact to be decided "by objective standards
One of the principal distinctions between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon is in the punishment. The maximum penalty for the former is five years, G.L.c. 265, § 15B, and for the latter is ten years, G.L.c. 265, § 15A. We must therefore ask what behavior distinguishes the two crimes, and whether the meaning of "dangerous weapon" is different.
"The definition of an assault is, an attempt or offer with force and violence to do injury to a person either from malice or wantonness; and a battery is where an injury is actually inflicted under such circumstances." Commonwealth v. Ruggles, 6 Allen 588, 590-591 (1863). "An assault and battery is the intentional and unjustified use of force upon the person of another, however slight ..." (emphasis supplied). Commonwealth v. McCan, 277 Mass. 199, 203 (1931).
2. We next examine the type of criminal intent necessary for the crimes punishable under G.L.c. 265, § 15A. It has been held that assault and battery by means of a dangerous weapon (G.L.c. 265, § 15A) is a general intent crime in Massachusetts. See Commonwealth v. Randall, 4 Gray 36, 38-39 (1855); Commonwealth v. Jones, 6 Mass.App.Ct. 750, 759 n. 8 (1978). Compare G.L.c. 265, § 15A, with G.L.c. 265, § 14 (mayhem: "with malicious intent to maim or disfigure" and "by such assault disfigures") and G.L.c. 265, § 15 (assault with intent to murder or maim); cf. Commonwealth v. Hogan, 379 Mass. 190, 192 (1979). Section 15A does not require specific intent to injure; it requires only general intent to do the act causing injury. Hawkins, supra. See generally W.R. Lafave & A.W. Scott, Jr., Criminal Law § 28 (1972).
In sum, the offense of assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A, requires that the elements of assault be present (see Henson, supra; Slaney, supra), that there be a touching, however slight (McCan, supra), that that touching be by means of the weapon (Salemme, supra), and that the battery be accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.
3. The evidence in this case must be viewed in a strained manner in order to support Appleby's argument that the jury were required to find that Cromer consented to be hit with the riding crop. Cromer testified that he did not consent to any of the beatings, that the riding crop incident occurred
The only conceivable way that consent by Cromer on August 31 could be raised by the evidence is by inferences that a) Cromer consented to the relationship generally, and b) Appleby subjectively believed on the night in question that Cromer would consent to be hit with the crop on the basis of his past behavior. Giving Appleby the benefit of this rather strained construction, we shall briefly discuss the legal viability of Appleby's contention that as a matter of law Cromer could consent to their sadomasochistic relationship.
(a) Assuming that the riding crop incident occurred in relation to sexual behavior, the question is whether the State can regulate, by the law of assault and battery, violent behavior which occurs in private, consensual sexual relationships.
We held in Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), that G.L.c. 272, § 35, prohibiting "unnatural and lascivious" acts, "must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific conduct, which is inherent in § 35, requires such an interpretation. We do not decide whether a statute which explicitly prohibits sexual conduct, even if consensual and private, would be constitutionally infirm."
General Laws c. 265, § 15A, is not aimed at regulating sexual conduct. Appleby was in no way charged with a crime for committing homosexual acts. Rather he was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of an assault and battery with a dangerous weapon. Farrell, supra at 620-621. See also Commonwealth v. Collberg, 119 Mass. 350 (1876).
4. Appleby alleges that the judge erred in denying his motions for a directed verdict.
We hold that the Commonwealth presented in its case-in-chief enough evidence of the elements of assualt and battery
The evidence, both at the close of the Commonwealth's case and after both sides had rested, supports a jury finding that Appleby intentionally placed Cromer in fear and struck him with the riding crop, an instrumentality which was then being used as a dangerous weapon. There was no error in the denial of the directed verdict.
5. Appleby alleges error in the jury instructions, and in the denial of his request for instructions that (a) intent to cause sexual gratification precludes a finding of guilty of the offense charged, and (b) private, consensual sadomasochistic behavior is an "absolute defense to the charge of assault and battery with a dangerous weapon." We have reviewed the judge's charge, and find no error. Appleby's requested instructions squarely conflict with our holdings today and with the holdings of Farrell, supra.
For all the foregoing reasons, we affirm Appleby's conviction. While we express some reservation on the severity of the sentence imposed for the particular assault and battery on August 31, 1976, as established by the jury verdict, albeit an assault and battery by means of a dangerous weapon, that subject is not open to review by this tribunal. See G.L.c. 278, §§ 28A-28C.
HENNESSEY, C.J. (concurring).
I concur with the result and the reasoning of the court's opinion. I add these few