Nice try, pal, but you're still guilty of stomping a pregnant woman

The Massachusetts Court of Appeals today upheld a judge's sentence against a man convicted of repeatedly punching and kicking a pregnant supermarket worker who tried to stop him from shoplifting - a longer sentence that was imposed after he refused to accept probation as a condition of his original, shorter term behind bars.

Gene A. Jackson was convicted for a 2009 incident at the Porter Square Shaw's, involving a loss-prevention officer who followed him out of the store:

While watching the surveillance system, she noticed the defendant placing various food items into a bag. The defendant then left the store. [She] left her office and followed him a short distance on foot. She was approximately one-half car length behind him. The defendant then turned around and lunged at her. [She] screamed that she was pregnant and assumed a defensive position as the defendant was punching her high in her body and stomach. When [she] crouched down, the defendant, who was wearing running shoes, kicked her in the legs five to seven times.

Jackson argued his convictions on both assault and battery and assault and battery with a dangerous weapon (his shod foot) were illegally "duplicative."

Nope, the court ruled:

Here, the judge could have found that two separate acts occurred. The first, assault and battery, occurred when the defendant began punching [the worker]. The second act, assault and battery by means of a dangerous weapon, occurred when the defendant began to kick [her] with his shoe. This view is further supported by [the worker]'s testimony. She testified that when the defendant first attacked her, "he was attempting to hit [her] up high and in [her] body, [her] stomach, and [she] was just blocking everything." As she crouched to avoid the attack, the second phase began when the defendant started punching and kicking her numerous times in the legs. Different phases of a single attack can be distinguished as separate and distinct.

Jackson also argued the judge in the case had no business revoking his original sentence of one year in jail followed by three years of probation and sentencing him to four years. The judge did that after Jackson refused to agree to any probation at all and the judge warned him that if he did not, he could spend more time in jail considering why the judge was willing to cut him a break on the sentence in a belief he could turn his life around - but needed probation because these were hardly his first offenses.

The appeals court cited an earlier case that held that "probation after conviction is not an entitlement, but the result of a discretionary act of the sentencing judge," and that the judge was well within the 60-day time period for changing a sentence.

• Complete ruling, Commonwealth vs. Gene A. Jackson