The Lowell Sun reports that forty year old Shawn Kelley has been charged with assault with intent to murder and assault and battery relating to an incident that occurred on Tuesday, September 6th during the evening. It has been alleged that a woman reported the incident the following morning claiming that Kelley choked and threatened her. Following his arraignment in Lowell District Court,Judge Thomas Brennan ordered that Kelley be held on $10,000 cash bail. In the event that the bail is posted, Brennan ordered that Kelley have a mental health and a substance abuse evaluation, refrain from abusing the victim and have no access to weapons. A probable cause hearing is set for October 6th. Massachusetts General Laws Chapter 265 section 13A provides that the punishment for a defendant convicted for assault or assault and battery is up to two and one half years in prison or by a fine of not more than one-thousand dollars. The charges of assault and assault and battery are considered felonies because the potential penalty in this case is a "house of correction" or "jail" sentence. When a potential sentence that a defendant can receive includes a state prison commitment, the charge is considered a felony. In order to be convicted of assault and battery the Commonwealth must prove beyond a reasonable doubt that there was an intentional and unjustified touching, however slight, on another OR that a defendant intentionally engaged in wanton or grossly negligent conduct that cause injury to another person. Thus, the charge of assault and battery is often described as having two "branches," the "intentional" branch and the "wanton" or "negligent" branch. The government can prove their case by establishing either theory. The crime of simple assault can also be committed in one of two ways. One can be convicted of assault by "attempting a battery" on another or by putting another person in fear of an immediately threatened battery. Relative to the "attempted battery" type of offense, it is not necessary for the "victim" be put in fear. Although all of the facts of this case are not known at this time, it appears that the reason for the delayed reporting should be investigated for the defense. Furthermore, while the case is still "new" it may be appropriate for the defense team to employ an investigator to determine whether there are any witnesses to the alleged incident other than the defendant and the complaining witness. Depending on the circumstances of the case, it will be important to establish if there is a viable claim of self-defense, defense of another, accident, misidentification or that the incident simply did not happen. Relative to a claim of self-defense or defense of another, the Commonwealth has the burden to prove its case beyond a reasonable doubt and then to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.
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