## Facts

- During a confrontation, Baliram Boodoosingh confronted Luis Lizardo while holding a baseball bat; Luis’s mother, Nancy Lizardo, stepped between them and urged them not to use weapons.
- Boodoosingh refused to drop the bat and threatened, “I’m going to fuck him up.”
- Boodoosingh rushed toward Luis, raised the bat as if to strike, and came within a few feet of Luis, who stood about a foot behind Nancy.
- Nancy physically pushed Boodoosingh away before he struck Luis.
- The Commonwealth prosecuted Boodoosingh for assault by means of a dangerous weapon (baseball bat) on an attempted-battery theory of assault.

## Issues

1. Whether the evidence was sufficient to prove attempted-battery assault by means of a dangerous weapon where the defendant did not actually swing the bat.
2. Whether the jury instruction on attempted-battery assault created a substantial risk of a miscarriage of justice because it did not expressly state that the defendant must have come “reasonably close” to completing the battery.

## Decision

- The Massachusetts Appeals Court affirmed the conviction.
- The evidence permitted a rational jury to find that the defendant intended a battery and took overt acts that brought him reasonably close in time and ability to completing it, despite no completed swing.
- The judge’s instruction (intent, an overt act, and actual or apparent ability to inflict harm), given at the parties’ request, adequately conveyed the attempted-battery standard.
- Any arguable wording deficiency did not create a substantial risk of a miscarriage of justice.

## Legal Principles

- Attempted-battery assault requires proof of intent to commit a battery plus overt acts that either constitute the last act necessary or bring the defendant very near (i.e., reasonably close in time and ability) to completion.
- A completed “swing” is not required where the defendant advances with a dangerous weapon, adopts a striking posture, and is stopped only by intervention at close range.
- A jury instruction need not use the precise phrase “reasonably close” if, read as a whole, it requires intent, an overt act toward the battery, and actual or apparent ability to carry it out; under substantial-risk review, minor differences in phrasing are not reversible absent likely injustice.

## Conclusion

The court upheld an attempted-battery ADW conviction where the defendant advanced toward the victim with a bat, threatened violence, raised the bat to strike, and was stopped only by a third party; it also held that a model instruction requiring intent, an overt act, and ability sufficiently stated the law even without the words “reasonably close.”


Commonwealth v. Boodoosingh, 85 Mass. App. Ct. 902 (2014)