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13-P-730 Appeals Court

COMMONWEALTH vs. TIMOTHY FORBES.

No. 13-P-730.

Hampden. June 3, 2014. - August 26, 2014.

Present: Kantrowitz, Milkey, & Hanlon, JJ.

Mayhem. Assault and Battery. Practice, Criminal, Duplicative 

convictions, Lesser included offense.

Indictments found and returned in the Superior Court 

Department on May 15, 2012.

The cases were tried before Constance M. Sweeney, J.

David Hirsch for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the 

Commonwealth.

MILKEY, J. After a jury trial in Superior Court, the 

defendant was convicted of one count of mayhem, G. L. c. 265, 

§ 14 (first theory), and one count of assault and battery 

causing serious bodily injury, G. L. c. 265, § 13A(b)(i). The 

defendant makes two different arguments that the mayhem 

conviction is unsupported by sufficient evidence. Finding those 
2

arguments unpersuasive, we affirm that conviction. However, we 

vacate the conviction of assault and battery causing serious 

bodily injury, because we agree with the defendant that it is 

duplicative of the mayhem conviction.

Background. Based on the Commonwealth's evidence, the jury 

could have found the following facts. On March 9, 2012, the 

defendant attended a youth basketball tournament at the Holy 

Name School in Springfield. In the fifth and sixth grade 

championship game, a team featuring the defendant's two sons 

played against an opposing team coached by the victim, Jose 

Feliciano. The game was fairly close until both of the 

defendant's sons "fouled out." The opposing team went on to win 

by a fairly large margin.

At the end of the game, the players from both teams lined 

up in the middle of the court to shake hands, and the coaches 

lined up behind them. The defendant joined the end of the line 

of his sons' team. When Feliciano reached the defendant, the 

defendant assumed a "fighting stance" and began to kick and 

throw punches at him. With his hands up, Feliciano backpedalled 

away from the defendant, but the defendant continued to advance 

and throw punches. Feliciano retreated all the way to the 

gymnasium wall, where the defendant locked him in a "bear hug." 

This allowed the defendant to pin Feliciano's arms and to 

position his mouth near Feliciano's neck.
3

A group of people gathered around the men and attempted to 

pull the defendant off Feliciano. In particular, Feliciano's 

wife repeatedly hit the defendant in the head in an effort to 

separate him from her husband. It was at this point that 

Feliciano felt the defendant's teeth clamp onto his left ear and 

then heard a "crunching" sound as a portion of the ear was 

ripped off. In this manner, the defendant bit off a large piece 

of Feliciano's ear, later measured to be four centimeters by two 

and one-half centimeters. After he was finally separated from 

Feliciano, the defendant spat out the severed piece of ear on 

the floor and ran out of the gymnasium. According to Feliciano, 

the entire confrontation with the defendant lasted twenty to 

twenty-five seconds. A surgeon was unable to reattach the 

severed cartilage and skin to what remained of Feliciano's left 

ear.

Discussion. 1. Specific intent. To make out a case of 

mayhem under the theory under which the defendant was charged, 

the Commonwealth had to prove, inter alia, that he acted with 

"malicious intent to maim or disfigure." G. L. c. 265, § 14.1 

 

1 Under the first theory of mayhem, the relevant statute 

provides in pertinent part: 

"Whoever, with malicious intent to maim or disfigure, cuts 

out or maims the tongue, puts out or destroys an eye, cuts 

or tears off an ear, cuts, slits or mutilates the nose or 
4

Feliciano argues that there was insufficient evidence for the 

jury to find that he acted with such intent. According to him, 

given the short duration and chaotic nature of the rapidly 

escalating circumstances, no reasonable juror could conclude 

that he specifically intended to maim or disfigure Feliciano.

In considering the sufficiency of the Commonwealth's 

evidence, we are required to view the evidence in the light most 

favorable to the Commonwealth. Commonwealth v. Latimore, 378 

Mass. 671, 677 (1979). "[T]he specific intent to maim or 

disfigure can be established by 'direct or inferential proof 

that the assault was intentional, unjustified, and made with 

reasonable appreciation on the assailant's part that a disabling 

or disfiguring injury would result.'" Commonwealth v. Cleary, 

41 Mass. App. Ct. 214, 217 (1996), quoting from Commonwealth v. 

Davis, 10 Mass. App. Ct. 190, 196 (1980). While specific intent 

may in some cases be demonstrated by evidence of a sustained

attack, a prolonged assault is not a prerequisite; specific 

intent may also be inferred from the "severity and extent of the 

 

lip, or cuts off or disables a limb or member, of another 

person . . . shall be punished . . . ."

The statute also establishes a second theory of mayhem, which 

involves the use of "a dangerous weapon, substance, or 

chemical." "The two parts [of the mayhem statute] represent 

distinctive and independent bases of liability." Commonwealth

v. Hogan, 7 Mass. App. Ct. 236, 246 n.11 (1979). It is 

undisputed that the defendant was indicted and tried only under 

the first theory.
5

[victim's] injuries." See Commonwealth v. Hap Lay, 63 Mass. 

App. Ct. 27, 36 (2005).

There was ample evidence for the jury to find that the 

defendant acted with specific intent to maim or disfigure 

Feliciano. Indeed, proof of the requisite intent can be drawn 

from the very fact that the defendant bit the victim's ear with 

adequate force and for a sufficient duration to crush and tear 

off a "very tough" layer of cartilage there. Regardless of the 

extent to which the defendant was agitated by the surrounding 

crowd of people attempting to disengage him, a jury might well 

have wondered how he could have bitten off a large portion of 

Feliciano's ear without maliciously intending to maim or 

disfigure him. It also bears noting that the defendant was the 

initiator of the fight, that he continued to kick and swing 

punches at Feliciano even as Feliciano was backing away, and 

that he wrapped his arms around Feliciano's arms, so that 

Feliciano was unable to fend off the defendant when he placed 

his mouth to Feliciano's ear.

The defendant's reliance on Commonwealth v. Cleary, 41 

Mass. App. Ct. at 218, and Commonwealth v. Johnson, 60 Mass. 

App. Ct. 243, 246-247 (2003), is misplaced. In those cases, we 

reversed a mayhem conviction where the defendant struck the 

victim with "a weapon [that] caused a more severe injury than 

anticipated." Commonwealth v. McPherson, 74 Mass. App. Ct. 125, 
6

128-129 (2009). Unlike the injuries suffered by the victims in 

Cleary and Johnson, the injury to Feliciano's ear in this case 

was "a logical and foreseeable consequence of [the defendant's] 

planned, sudden, and unprovoked attack." Id. at 129.

2. Nature of the injury. The defendant next contends that 

there was insufficient proof of the type of injury necessary to 

sustain a mayhem conviction. The relevant statutory language 

applies to one who "cuts or tears off an ear." The defendant 

argues that "off" should be interpreted as modifying both "cuts" 

and "tears." Based on this reading, he further argues that 

because it is undisputed that he bit off only a portion the 

victim's ear, he cannot reasonably be said to have cut off or 

torn off "an ear."2 The Commonwealth maintains that "off" should 

be interpreted as modifying only "tears," not "cuts," and 

accordingly that one can be guilty of mayhem by making any cut 

to the ear, so long as it is done with the requisite "malicious 

intent to maim or disfigure."3 Alternatively, the Commonwealth 

 

2 The defendant argues that "an ear" means the entire outer 

ear; he concedes that one need not tear out the inner ear as 

well to be guilty of mayhem.

3 The word "cuts" is used in various ways in the single 

sentence that comprises the statute. It is used as a standalone verb with regard to noses and lips ("cuts, slits or 

mutilates the nose or lip"), it is modified by "out" with regard 

to a tongue ("cuts out or maims the tongue"), and it is modified 

by "off" with regard to a limb ("cuts off or disables a limb or 

member"). Thus, the surrounding language of the statute 
7

argues that even if "off" is interpreted as modifying both 

"cuts" and "tears," removal of the entire ear is not required.4

In interpreting a statute, we begin with the plain 

language, but also draw guidance from other sources, such as the 

statute's legislative history and the law of other 

jurisdictions. See Commonwealth v. Jean-Pierre, 65 Mass. App. 

Ct. 162, 163 (2005). "A statute should be construed in a 

fashion which promotes its purpose and renders it an effectual 

piece of legislation in harmony with common sense and sound 

reason." Commonwealth v. Anderson, 38 Mass. App. Ct. 707, 710 

(1995) (quotation and citation omitted). Under the rule of 

lenity, we interpret ambiguities in a criminal statute in a 

defendant's favor. Commonwealth v. Williamson, 462 Mass. 676, 

679 (2012).

We need not resolve whether the rule of lenity requires 

that "off" be interpreted as modifying both "cuts" and "tears." 

That is because we agree with the Commonwealth that, in any 

 

provides some textual fodder for each side. See Commonwealth v. 

Brooks, 366 Mass. 423, 428 (1974) (we interpret "words in a 

statute . . . in light of the other words surrounding them"). 

The current version of the relevant language dates to 1836. See 

R.S. 1836, c. 125, § 10. An earlier version applied to people 

who "cut off an Ear." St. 1804, c. 123, § 4.

4 Although this is the first case in which we have 

considered the precise type of ear injury necessary to sustain a 

mayhem conviction, we previously affirmed a conviction of mayhem

where the defendant bit off only a portion of the victim's ear. 

Commonwealth v. Davis, 10 Mass. App. Ct. at 190, 199.
8

event, 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. "The 

maxim that penal statutes are to be strictly construed does not 

mean that an available and sensible interpretation is to be 

rejected in favor of a fanciful or perverse one." Commonwealth

v. Roucoulet, 413 Mass. 647, 652 (1992), quoting from

Commonwealth v. Tata, 28 Mass. App. Ct. 23, 25-26 (1989)

(Kaplan, J.). 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."

Moreover, this reading of the mayhem statute accords with 

the conclusions of courts interpreting similar statutes in other 

jurisdictions.5 See Hawaii v. Gallagher, 9 Haw. 587, 588-590 

(1894) (affirming mayhem conviction where only "portion of the 

 

5 As noted, see note 3, supra, the statutory language 

codifying the first theory of mayhem dates to the beginning of 

the nineteenth century, with the current language in place since 

1836. Nearly identical versions of the statute were enacted in 

at least ten other States and territories, and broadly similar 

statutes in others.
9

ear . . . was torn off"). Cf. Lamb v. Cree, 86 Nev. 179, 181 

(1970) ("Under our law, biting off a portion of the ear is 

equivalent to a slitting of the ear"). See also LaFave, 

Substantive Criminal Law § 16.5(c) (2d ed. 2003) ("It has been 

held mayhem to cut off a part of an ear or a nose, so long as 

the net result is an impairment of natural comeliness"). We 

conclude that the judge did not err in denying the defendant's 

motion for a required finding.

3. Duplicative convictions. Finally, the defendant argues 

that his conviction of assault and battery causing serious 

bodily injury should be vacated because it is a lesser included 

offense of mayhem.6 We have previously ruled that assault and 

battery by means of a dangerous weapon causing serious bodily 

injury is a lesser included offense of mayhem, second theory, 

but have not had occasion to address the precise question 

presented here. See Commonwealth v. McPherson, 74 Mass. App. 

Ct. at 129.

To determine whether two convictions are duplicative, we 

apply 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). We consider 

only the objective elements of each crime and not the facts of 

 

6 It is undisputed that both convictions are based on the 

defendant's biting Feliciano's ear.
10

any particular case. Commonwealth v. Vick, 454 Mass. 418, 431 

(2009). "When statutory crimes can be violated in multiple 

ways, comparison of their elements must focus on the specific 

variations that the defendant is alleged to have committed." 

Commonwealth v. Roderiques, 462 Mass. 415, 421 (2012).

Applying these principles to the two criminal offenses at 

issue here, we agree with the defendant that his convictions are 

duplicative. A conviction under G. L. c. 265, § 13A(b)(i),

requires evidence of an assault and battery that causes serious 

bodily injury, which is defined as "bodily injury that results 

in a permanent disfigurement, loss or impairment of a bodily 

function, limb or organ, or a substantial risk of death." G. L. 

c. 265, § 13A(c).7 While 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. More specifically, the specified 

injuries to the body parts listed in the first part of the 

mayhem statute would necessarily constitute both an assault and 

battery and either "permanent disfigurement" or "loss or 

impairment" of a "limb or organ" under the "serious bodily 

 

7 In Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. at 167, 

we concluded that the term "permanent" in the assault and 

battery statute modified only "disfigurement." Thus, "loss or 

impairment of a bodily function, limb or organ" need not be 

permanent to meet the statutory definition of serious bodily 

injury.
11

injury" provision.8 See G. L. c. 265, § 13A(c). In other words, 

the 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. The conviction of the 

assault and battery charge therefore must be vacated. See 

Commonwealth v. Rivas, 466 Mass. 184, 189 (2013) (when faced 

with duplicative convictions, "appellate courts have generally 

considered it appropriate to vacate the conviction on the 

offense with fewer elements and to affirm the conviction on the 

more serious offense without remand to the trial court" 

[quotations omitted]).

Conclusion. For the reasons stated above, we affirm the 

mayhem conviction, but vacate the conviction of assault and 

battery causing serious bodily injury.

So ordered.

 

8 At oral argument, the Commonwealth acknowledged that an 

ear is an "organ" for purposes of G. L. c. 265, § 13A(c). This 

accords with the standard medical definition of that term. See 

Stedman's Medical Dictionary 1378 (28th ed. 2006) (defining 

"organ" as "[a]ny part of the body exercising a specific 

function [e.g., respiration, secretion, or digestion]").