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-942

COMMONWEALTH

vs.

STEPHEN H. SMITH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant was convicted of 

assault and battery by means of a dangerous weapon in violation 

of G. L. c. 265, § 15A (b), and assault and battery on a 

household member in violation of G. L. c. 265, § 13M (a). On 

appeal, he claims that there was insufficient evidence to 

support the assault and battery by means of a dangerous weapon

conviction, and that the trial judge improperly struck testimony 

relevant to his claim that the victim was the first aggressor. 

We affirm.

Background. We summarize the evidence presented at trial 

in the light most favorable to the Commonwealth, reserving 

certain details for the discussion of specific issues. See 

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The 

victim testified that during the night of November 7, 2019, into 
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the morning of November 8, 2019, she and the defendant, who were 

in a dating relationship, were in the victim's apartment, where 

the defendant stayed often. The two were in the kitchen when 

the defendant told the victim that he had taken twenty Klonopin 

pills in a suicide attempt, and an argument followed. After the 

victim failed to convince the defendant to go to the hospital, 

she reached for her cell phone, at which point the defendant 

grabbed a knife and pointed it at her. As the victim left the 

kitchen to go to her room, she saw that the defendant was 

cutting his arm with the knife. She once again tried to pick up 

her cell phone from the kitchen table, but was unable to reach 

it, as the defendant began to chase her through the apartment 

with the knife. During the ensuing encounter, the defendant 

straddled the victim while she was on a couch, held her down, 

and waived the knife in her face. The defendant ended up 

striking the victim with the knife, resulting in a serious 

laceration to her hand requiring twenty-two stitches. The 

victim was able to escape to a neighbor's apartment. The police 

were called.

Discussion. 1. Sufficiency of the evidence. The 

defendant contends that the evidence only showed that he waved a 

knife in the face of the victim, which resulted in her getting 

injured when she attempted to block it, not that he 

intentionally struck her. Thus, he argues that while there was 
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sufficient evidence to support a conviction of a reckless 

assault and battery by means of a dangerous weapon, there was 

insufficient evidence to support a conviction of an intentional 

assault and battery by means of a dangerous weapon. When

reviewing a sufficiency of the evidence claim, we determine 

whether, "after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt" 

(citation omitted). Latimore, 378 Mass. at 677.

Assault and battery by means of a dangerous weapon can be 

proven under either a theory of intentional or reckless battery. 

See Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 807 (2009).1

When the factfinder is instructed on both theories, a conviction 

may be upheld on sufficient proof of either theory. See, e.g.,

id. at 807-808. Because in jury-waived cases trial judges are

presumed to have instructed themselves properly on the law, see 

Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), we presume 

that the trial judge here properly instructed herself as to both 

1 "Intentional assault and battery by means of a dangerous weapon 

requires an intentional, unjustified touching, however slight, 

by means of [a] dangerous weapon" (quotation and citation 

omitted). Commonwealth v. Ashford, 486 Mass. 450, 460 (2020). 

In contrast, a recklessness theory requires "the intentional 

commission of a wanton or reckless act (something more than 

gross negligence) causing physical or bodily injury to another

by means of a dangerous weapon" (footnote, quotation, and 

citation omitted). Id. at 460-461.
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theories. Given that there was evidence that the defendant was 

straddling the victim while waving a knife over her face, and 

that the defendant concedes that there was sufficient evidence 

to uphold the conviction on a theory of recklessness, we 

conclude there was no error.2

2. Adjutant evidence. "[W]here a claim of self-defense 

has been asserted and the identity of the first aggressor is in 

dispute . . . trial judges have the discretion to admit in 

evidence specific incidents of violence that the victim is 

reasonably alleged to have initiated." Commonwealth v. 

Adjutant, 443 Mass. 649, 650 (2005). During the trial, 

testimony was elicited regarding prior violent conduct of both 

the defendant and the victim. The trial judge allowed the 

testimony on the condition that the defendant was able to raise

a claim of self-defense.3 After the defendant concluded his 

2 We also conclude that, viewing the evidence in the light most 

favorable to the Commonwealth, there was sufficient evidence 

under a theory of an intentional assault and battery by means of

a dangerous weapon, as the trial judge could have inferred that 

the defendant intended to strike the victim with the knife after 

chasing her around the apartment with it, holding her down while 

on top of her, and then waving the knife over her face.

3 For a defendant to be entitled to a self-defense instruction, 

there must be evidence warranting at least a reasonable doubt 

that he "(1) had reasonable ground to believe and actually did 

believe that he was in imminent danger of death or serious 

bodily harm, from which he could save himself only by using 

deadly force, (2) had availed himself of all proper means to 

avoid physical combat before resorting to the use of deadly 

force, and (3) used no more force than was reasonably necessary 
5

testimony, the Commonwealth moved to strike the victim's prior 

Adjutant testimony and to disallow any such further testimony. 

The trial judge ruled that "it's not real clear from [the 

defendant's] testimony, particularly with the charge of assault 

and battery dangerous weapon, how he was acting in selfdefense," and allowed the Commonwealth's motion. On appeal, the 

defendant argues that the evidence was sufficient to support a 

claim of self-defense and, therefore, that he should have been 

permitted to introduce evidence that the victim was the first 

aggressor.

We discern no error in the trial judge's conclusion that 

there was insufficient evidence that the defendant acted in 

self-defense and, therefore, the evidence at issue was properly 

excluded. Even accepting all reasonable inferences in the 

defendant's favor, see Commonwealth v. Pike, 428 Mass. 393, 395

(1998), the defendant provided no evidence that he used the 

knife in self-defense. The defendant testified that the victim 

attacked him with the knife, that he received cuts during the 

altercation, and that he pushed the victim away and ran out of 

the apartment. However, he also testified that he never grabbed 

the knife at all, and offered no explanation for how the victim 

in all the circumstances of the case" (citation omitted). 

Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007).
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received her injuries.4 His testimony did not raise a claim of 

self-defense, but instead presented an entirely alternative 

account of the incident -- one that did not explain how the 

victim suffered a significant laceration. In sum, there was no 

evidence to support a claim of self-defense. See Commonwealth

v. Bertrand, 385 Mass. 356, 362-363 (1982) (where defendant 

insisted he did not inflict blows that killed victim, his 

testimony raised no issue of self-defense); Commonwealth v. 

Clark, 20 Mass. App. Ct. 392, 396-397 (1985) (defendant not 

entitled to self-defense instruction for assault and battery by 

means of a dangerous weapon charge involving knife where 

4 During closing arguments, defense counsel stated he had no 

theory as to how the victim received her cuts:

Judge: "So are -- so you're suggesting that [the victim] 

cut herself?"

Defense counsel: "Your Honor, I don't know what happened. 

I –"

Judge: "Okay."

Defense counsel: "-- really don't. And if I did, I don't 

think we would be here right now."
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defendant testified he took knife from victim but only pushed 

her and hit her with his hand).

Judgments affirmed.

By the Court (Vuono, Henry & 

Grant, JJ.5),

Clerk

Entered: June 5, 2023.

5 The panelists are listed in order of seniority.