Commonwealth v. Carlos Mora-Acevedo.

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

22-P-636

COMMONWEALTH

vs.

CARLOS MORA-ACEVEDO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant was convicted of

one count of resisting arrest pursuant to G. L. c. 268, § 32B.

On appeal, the defendant contends that (1) there was

insufficient evidence to establish two of the elements of

resisting arrest, and (2) the judge erred by convicting him on

less than proof beyond a reasonable doubt. We affirm.

Discussion. 1. Sufficiency of the evidence. The

defendant claims that there was insufficient evidence to support

his conviction of resisting arrest. In analyzing the

sufficiency of the evidence to support a conviction, the

"question is whether after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319

(1979).

The defendant first asserts that the Commonwealth failed to

adequately prove that he knew the officers intended to arrest

him. We disagree. To sustain a resisting arrest conviction,

the Commonwealth must prove that the defendant "knowingly

prevents or attempts to prevent a police officer, acting under

color of his official authority, from effecting an arrest."

G. L. c. 268, § 32B (a). An arrest is effected when there is

(1) "an actual or constructive seizure or detention of the

person," (2) "performed with the intention to effect an arrest,"

and (3) "so understood by the person detained." Commonwealth v.

Grandison, 433 Mass. 135, 145 (2001). "The 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), citing

Commonwealth v. Cook, 419 Mass. 192, 199 (1994).

Here, two uniformed police officers pulled up beside the

defendant in a marked police cruiser. The officers informed the

defendant that he was the subject of an active arrest warrant.

After the officers ordered him several times to keep his hands

out of his pockets, the defendant fled. The officers pursued

him, repeatedly ordering him to stop and to show his hands, and

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eventually warning him at least twice that he would be tased.

We are satisfied that in these circumstances, a reasonable

person would have understood that he was being arrested. See

Grant, 71 Mass. App. Ct. at 208. The defendant's reliance on

Commonwealth v. Grant is misplaced: in that case, we held that

the evidence of the defendant's understanding was insufficient

because the officers did not speak to him before he fled and did

not tell him during their pursuit that he was being arrested.

See id. at 209-210. Here, the officers immediately informed the

defendant of the warrant for his arrest and repeatedly ordered

him to stop running. See Commonwealth v. Soun, 82 Mass. App.

Ct. 32, 36 (2012) ("police do not need to use the word 'arrest'

in order for there to be an arrest. Other phrases and

situations commonly associated with arrest can create the

required level of understanding" [quotation and citation

omitted]).

The defendant further claims that there was insufficient

evidence that he created a substantial risk of bodily injury to

the arresting officers. Again, we are not persuaded. The

defendant fled at night on a main street with at least some

traffic passing by. At an intersection, he ran into the street

and turned sharply around a parked car into a side street. At

least one car stopped abruptly on the main street as the

defendant ran off the sidewalk. The side street was quiet, but

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the defendant continued running in the middle of it, causing the

officers to do the same. The resisting arrest statute requires

proof that the defendant prevented or attempted to prevent an

arrest by either using or threatening force or violence, or

"using any other means which creates a substantial risk of

causing bodily injury to [the arresting] officer or another."

G. L. c. 268, § 32B (a) (1)-(2). The defendant here did not use

force or violence, so his conviction rested on proof that he

created a substantial risk of bodily injury to the officers or

another person. The defendant argues that his behavior could

not have caused a substantial risk of injury to the officers

because the chase lasted less than one minute and occurred on

the sidewalk and on a quiet side street.

However, the Supreme Judicial Court has emphasized that the

resisting arrest statute "criminaliz[es] the 'creation' of the

risk" (emphasis added). Commonwealth v. Montoya, 457 Mass. 102,

105 (2010). As a result, the officers need not be "actively

subject to the risk," so long as the circumstances expose them

to a substantial danger. See id. Here, the defendant's flight

obliged the arresting officers to pursue him at night, along a

sidewalk, past an intersection where traffic was passing, and

into the middle of a side street. The officers may not have

been in imminent danger, but their pursuit of the defendant

exposed them to the risk of being hit by a car or otherwise

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injured. 1 Indeed, we have previously observed that a substantial

risk of bodily injury existed from potential traffic even where

no pedestrians or vehicles were on the street at the time of a

police pursuit. See Commonwealth v. Sylvia, 87 Mass. App. Ct.

340, 342 (2015). Consequently, in the circumstances of this

case, the Commonwealth's evidence was sufficient to prove the

second element of resisting arrest beyond a reasonable doubt.

Compare Montoya, 457 Mass. at 106 (defendant created substantial

risk that officers could trip or fall when he climbed fence and

jumped into canal); Grandison, 433 Mass. at 144-145 (defendant

created substantial risk that officers could be struck or

injured when he stiffened his arms and pulled his hands away

from handcuffs).

2. Guilty finding. The defendant claims that the judge

improperly considered his criminal record in reaching her

decision to find him guilty. Because the defendant did not

object when the judge announced her findings, we review to

determine whether there was error, and if so, whether that error

created a substantial risk of a miscarriage of justice. See

1 The defendant's flight also caused a car to stop abruptly at
the intersection, suggesting a potential risk to the car's
occupants or other drivers. See G. L. c. 268, § 32B (a) (2)
(defendant resists arrest by creating substantial risk of bodily
injury to officers or "another").

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Commonwealth v. Desiderio, 491 Mass. 809, 815 (2023). We

conclude that there was no error.

The defendant was charged with resisting arrest, G. L.

c. 268, § 32B, and disorderly conduct, G. L. c. 272, § 53. At

trial, at the close of the Commonwealth's case, the defendant

moved for a required finding of not guilty. After hearing

arguments from both the Commonwealth and the defense, the judge

stated that she found "sufficient facts on the resisting." The

judge then heard arguments on the disorderly conduct charge and

announced that she did not find sufficient facts relative to

that charge. The judge also stated again that she found

"sufficient facts on the resisting." When both sides asked if

that meant she found the defendant guilty, the judge asked to

see the defendant's criminal record, explaining that she wanted

to decide whether to find him guilty or continue the case

without a finding. Immediately thereafter, the judge entered a

guilty finding.

The defendant claims that the judge convicted him on less

than proof beyond a reasonable doubt because she reviewed his

criminal record before announcing that she found him guilty.

This claim is unpersuasive. When the judge asked to see the

defendant's record, she did so with a view to potentially

continuing the case without a finding. See G. L. c. 278, § 18.

That disposition was not in fact available to the judge after

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the trial. See Commonwealth v. Norrell, 423 Mass. 725, 727

(1996) ("Mass. R. Crim. P. 28 (a) makes no provision after a

bench trial for disposition by means of a continuance without a

finding, calling instead for a finding of guilty or not

guilty"). Before that point, however, the judge had already

announced her ruling on the disorderly conduct charge, and she

had stated twice that she found sufficient facts relative to the

resisting arrest charge. We can infer that by saying that she

found sufficient facts, the judge meant sufficient facts to find

the defendant guilty of resisting arrest. The judge indicated

that she was deciding between two dispositions: a finding of

guilt or a continuance without a finding. For purposes of a

continuance without a finding, "[a]n admission to sufficient

facts means an admission to facts sufficient to warrant a

finding of guilty" (quotation omitted). See Tirado v. Board of

Appeal on Motor Vehicle Liability Policies & Bonds, 472 Mass.

333, 338 (2015). Therefore, for either disposition, the judge

needed to find that the facts established at trial were

sufficient to prove guilt beyond a reasonable doubt. 2 By stating

twice that she found sufficient facts, the judge indicated that

she had determined the factual issues and decided to find the

2 During the discussion on sentencing, the judge also stated
specifically that she found the defendant guilty beyond a
reasonable doubt.

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defendant guilty before seeing his criminal history. It was

entirely appropriate to consider the defendant's criminal record

for sentencing purposes. See Commonwealth v. Beverly, 485 Mass.

1, 13 (2020).

Judgment affirmed.

By the Court (Wolohojian,
Singh & Hand, JJ. 3),

Clerk

Entered: August 28, 2023.

3 The panelists are listed in order of seniority.

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