Commonwealth v. Musgrave

Fried, J.

A District Court jury convicted the defendant of assault by means of a dangerous weapon. 1 The Appeals Court reversed. Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995). We granted the Commonwealth’s application for further appellate review. We reverse the defendant’s conviction.

*611 We adopt the Appeals Court’s restatement of the facts. “Responding to a radio dispatch concerning graffiti damage, a Stoneham uniformed police officer stopped the defendant and another man. While the officer was patting down the other man, the defendant placed his hand in his waist area and then by his ankle. The officer saw a gun barrel protruding from the defendant’s hand and observed that the barrel was ‘moving up.’ ‘Scared stiff and thinking he was going to be shot, the officer struggled with the defendant, forced the gun from his hand and subdued him.

“The defendant testified that the gun in question was an inoperable pellet pistol that fell from his waistband down the inside of his pants when he jumped to avoid the approach of the officer’s cruiser. He testified that while watching the officer pat down the other man, he ‘saw the need to get rid of both the pistol and some marijuana he was carrying. After throwing the marijuana away, he turned his attention to the pistol and, without directly touching it, was in the process of pushing it downward inside his pants when he was set upon by the officer.” Commonwealth v. Musgrave, supra at 519-520 .

A District Court jury convicted the defendant of assault by means of a dangerous weapon. See G. L. c. 265, § 15B (1994 ed.). The defendant appealed claiming that the judge erred by refusing to instruct the jury that the Commonwealth must establish as an element of the crime that the defendant intended to place the officer in fear. On this ground, the Appeals Court reversed and set aside the verdict. We agree with this holding. The rationale underlying our decision is set out in the Appeals Court’s opinion and need not be repeated here. Accordingly, we adopt the opinion of the Appeals Court and incorporate it as our own.

Judgment reversed.

Verdict set aside.

The Commonwealth filed a nolle prosequi as to the charges of malicious destruction of property and possession of a firearm without an identification card. The charge of illegal possession of a Class D substance was filed without a finding.