Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

MASSACHUSETTS ASSAULT AND BATTERY WITH A DANGEROUS WEAPON CHARGES VARY DEPENDING ON CIRCUMSTANCES

Massachusetts assault and battery charges, with or without a dangerous weapon can be prosecuted in fact scenarios which may surprise you.

Many people are still surprised by what can constitute a “dangerous weapon”. Today, Attorney Sam’s Take will break it down for you.

To prosecute for an assault, the Commonwealth need only show you threatened somebody with something in their presence, putting them reasonably in fear.

To prosecute for a battery, the Commonwealth’s burden is to prove a touching that the touchee found offensive. No matter how slight or for what reason.

A deadly weapon? Virtually anything..

Let’s turn to some events which apparently took place on Sunday early evening.

50-year-old Robert Tiernan was whacking some weeds with his weed-whacker near a fence. On the other side of that fence was a couple who were outside looking at their garden.

Or, at least, Trying to..

The husband says that he asked Tiernan to stop his whacking for a bit so they could enjoy the viewing of their garden in peace..

According to the couple, Tiernan refused, got argumentative, then kicked dirt and rocks at them with the weed-trimming tool. He is then said to have swung the weed whacker over the fence at them, striking the wife. In fact, when the police arrived, they she was apparently seen to have injuries to her arm and hand.

The husband’s admitted response to this was to throw a beer bottle at Tiernan. Next and some pals “approached” Tiernan, allegedly to prevent him from fleeing. Tiernan is said to have then attacked the group of them. So…of course…they simply defended themselves.

Apparently, they defended themselves a number of times because when the police arrived, the report reads, they found Tiernan shirtless and “covered in blood.” He had had bruises to his stomach and back, his shirt was ripped off and he had a cut above his eye,

Police say that Tiernan told them another version of the events. According to the report, he apparently claimed that he got into an argument with the neighbors about his weed whacking near the garden when one of them simply threw the beer bottle at him. He said that the bottle caused him to lose balance, catch his foot on the fence and lose control of the weed whacker. That, of course, must have been what caused the weed whacker to fly over the fence. He never swung it at anyone. Then, one of the three men punched him in the face while the other two attacked him from behind.

Well, the officers decided that Tiernan’s last name should be changed to “Defendant”. He was arrested and charged with assault and battery with a dangerous weapon. The police indicate that they expect to file criminal complaints against the other men involved in the incident as well.

Apparently, the men did not warrant actually being arrested; simply summonsing them to court would be enough.

Attorney Sam’s Take On Assault, Battery And Dangerous Weapons:

Now, of course, I do not know how things really went down in this incident. The police only had the above to go by in order to make their decision as to who was about to become a guest of the Commonwealth.

The two opposing stamens are not inconsistent in a variety of ways, however. Those ways indicate that the Defendant and the three men, particularly the husband, should have been arrested if one of them were. Let’s count the various batteries.

The allegations against the Defendant clearly make out the elements of assault and battery with a dangerous weapon. However, it actually reflects a couple of counts of that charge. According to the garden-lovers, the Defendant not only threw the weed whacker, but also kicked up dirt and rocks at them. If the dirt and rocks did not reach them, it was at least assault with a dangerous weapon, the weapons being, at the least, the rocks.

However, the beer-tossing husband also committed an assault and battery with a dangerous weapon by his own admission. While he might wish to allege that he did so in self-defense, I believe that the claim is rather weak. Further, the grouping with his buddies to subdue and, let’s face it, beat the tar out of the Defendant was also a group assault and battery. All the men who attacked the Defendant should be charged with assault and battery. In fact, they could all be charged with ALL of their assaults because it was a joint venture, and so each is responsible for everything done in that venture.

Of course, the police decided only to arrest one side of this controversy although they had admissions which could have led to the arrest of all the men involved. Let’s see if those other charges will actually be brought.

To read the article upon which this blog was based, please go to http://somerville.patch.com/articles/police-man-attack-s-neighbor-with-weed-whacker-then-gets-beaten-up?ncid=txtlnkuspatc00000003

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