Appeals Court (November 23, 2005)
To convict a defendant of assault and battery with the enhanced penalty for serious bodily injury, proof of the victim's disfigurement must be permanent but there is no similar requirement when the proof relates to loss or impairment of a bodily function.
The defendant broke the victim's jaw, and was convicted, pursuant to G.L. c. 265, §13A(b)(i), (iii), of assault and battery that resulted in serious bodily injury. "Serious bodily injury" is defined to mean "bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death."
The defendant appealed claiming that the victim's loss or impairment was not permanent, and he therefore did not qualify for the sentence enhancement. The Appeals Court rejected the defendant's argument and held that the word "permanent," as used in the statutory definition, modifies only "disfigurement" and not "loss or impairment of a bodily function, limb or organ."