Commonwealth v. Fotios Efthimiadis.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1136

COMMONWEALTH

vs.

FOTIOS EFTHIMIADIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Fotios Efthimiadis, appeals from his

convictions, after a jury-waived trial in the District Court, of

resisting arrest, G. L. c. 268, § 32B, and threatening to commit

a crime, G. L. c. 275, § 2. 1 Concluding that there was

sufficient evidence to support both convictions, we affirm.

1. Standard of review. "When reviewing the denial of a

motion for a required finding of not guilty, 'we consider the

evidence introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

1The judge acquitted the defendant of assault and battery
by means of a dangerous weapon and assault by means of a
dangerous weapon.
reasonable doubt.'" Commonwealth v. Quinones, 95 Mass. App. Ct.

156, 162 (2019), quoting Commonwealth v. Faherty, 93 Mass. App.

Ct. 129, 133 (2018). "[T]he evidence relied on to establish a

defendant's guilt may be entirely circumstantial," Commonwealth

v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227

(2019), and "[t]he inferences that support a conviction 'need

only be reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Wheeler, 102 Mass. App. Ct. 411,

413 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377,

378 (2017).

2. Resisting arrest. "A defendant resists arrest if 'he

knowingly prevents or attempts to prevent a police officer,

acting under color of his official authority, from effecting an

arrest of the actor or another, by (1) using or threatening to

use physical force or violence against the police officer or

another; or (2) using any other means which creates a

substantial risk of causing serious bodily injury to such police

officer or another.'" Commonwealth v. Sylvia, 87 Mass. App. Ct.

340, 341-342 (2015), quoting G. L. c. 268, § 32B (a). Here, the

police officer testified that, after he tackled the defendant

and tried to place him in handcuffs, the defendant "was violent,

hostile" and "was just thrashing." "He continually dropped his

weight when we were in the stairwell . . . trying to knock us

off balance, thrash around, refuse to go into the cruiser."

2
Based on this evidence, the judge could rationally find both

that the defendant used physical force against the officers and

created a substantial risk of serious bodily injury by trying to

knock the officers off balance on a stairwell. See Commonwealth

v. Manolo M., 103 Mass. App. Ct. 614, 625 (2023) (sufficient

evidence of physical force where defendant pulled away while

officer was trying to handcuff her); Commonwealth v. Sylvia, 87

Mass. App. Ct. 340, 343 (2015) (sufficient evidence of risk of

serious bodily injury where defendant engaged in "scuffle" and

"struggle" with officers).

Similarly, the judge could rationally find that the

defendant understood he was under arrest. In this regard,

"[t]he standard for determining whether a defendant understood

that he was being arrested is objective -- whether a reasonable

person in the defendant's circumstances would have so

understood." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208

(2008). "It is not necessary that officers use the word

'arrest.'" Commonwealth v. Portee, 82 Mass. App. Ct. 829, 833

(2012). Here, the defendant's acts of resistance began after

the police officer had tackled him and was trying to place him

in handcuffs and continued while the officer was trying to bring

him to the cruiser. The judge could rationally find that a

reasonable person in those circumstances would understand he was

being arrested. See Commonwealth v. Soun, 82 Mass. App. Ct. 32,

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37 (2012). Contrast Grant, supra at 209 (no evidence defendant

understood he was under arrest where police merely chased him

and "neither their words nor their actions had objectively

communicated that intention"). Even if the defendant's

intoxication is relevant to this objective determination,

testimony that the defendant "appeared" drunk did not require

the judge to find that the defendant was so drunk that he could

not understand that being tackled, handcuffed, and transported

to a police cruiser meant that he was being arrested. 2 Cf.

Commonwealth v. Lennon, 463 Mass. 520, 523 (2012) ("A jury

instruction on voluntary intoxication is required only where

there is evidence of 'debilitating intoxication' that could

support a reasonable doubt as to the defendant's ability to form

the requisite criminal intent").

It is, of course, true that a person is privileged to use

force to resist an arrest where the arresting officer uses

excessive force. See Commonwealth v. Graham, 62 Mass. App. Ct.

642, 652 (2004). The Commonwealth may disprove this defense by,

among other things, proving "that the arresting officer did not

use excessive or unnecessary force in making the arrest."

2 Contrary to the defendant's suggestion, the judge did not
find that booking was delayed until the next morning because of
the defendant's intoxication. The judge merely noted that the
defendant was drunk. Furthermore, the officer testified that he
did not make the decision to delay booking but that he thought
the delay was because of several factors.

4
Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012),

quoting Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 452

(2005). Here, the officer testified that he tackled a fleeing

suspect and did not describe the use of any further force other

than the force necessary to handcuff the defendant and transport

him. The judge could rationally find that the officer did not

use excessive force.

3. Threats. To constitute a criminal threat, the

statement must be "an expression of intention to inflict a crime

on another and an ability to do so in circumstances that would

justify apprehension on the part of the recipient of the

threat." Commonwealth v. Melton, 77 Mass. App. Ct. 552, 557-558

(2010), quoting Commonwealth v. Kerns, 449 Mass. 641, 653

(2007). Here, the officer testified that the defendant told the

officer "he's going to get me" and that the officer would not

"see it coming." Additionally, the defendant "alluded to the

police chief in Randolph dying and how somehow he was involved

in that and that he's going to do the same to [the officer] and

[his] family." The mere fact that the defendant was under

arrest did not eliminate the reasonableness of fearing that the

defendant would follow through on these threats once released.

See Commonwealth v. Milo M., 433 Mass. 149, 156 (2001), quoting

Commonwealth v. Sholley, 48 Mass. App. Ct. 495, 499, S.C., 432

Mass. 721 (2000), cert. denied, 532 U.S. 980 (2001) ("although

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there is no evidence that the juvenile possessed an immediate

ability to carry out the threat at the time he communicated the

drawing to Mrs. F, this does 'not mean that [the juvenile] could

not have carried out his threat at a later time'").

Furthermore, as explored above, the testimony that the defendant

"appeared" drunk and the equivocal testimony about booking did

not require the judge to conclude that the defendant was so

drunk that his threats had to be disregarded. The judge

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rationally found that the defendant committed the crime of

threatening to commit a crime. 3

Judgments affirmed.

By the Court (Shin, Ditkoff &
Brennan, JJ. 4),

Clerk

Entered: October 16, 2024.

3 To the extent that the defendant did not withdraw his
criminal responsibility argument in his reply brief, such a
defense is supposed to be raised well prior to trial, not for
the first time on appeal. See Mass. R. Crim. P. 14 (b) (2) (A),
as appearing in 463 Mass. 1501 (2012). In any event, the
defense of lack of criminal responsibility is unavailable to a
defendant "if the lack of substantial capacity did not result
from a mental disease or defect but derived solely from another
source, such as voluntary intoxication." Commonwealth v.
Dunphe, 485 Mass. 871, 879 (2020).

4 The panelists are listed in order of seniority.

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