Commonwealth of Massachusetts v. Daniel C. Arroyo.

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-783

COMMONWEALTH OF MASSACHUSETTS

vs.

DANIEL C. ARROYO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury in Worcester District Court found the defendant

guilty of two counts of assault and battery, G. L. c. 265,

§ 13A; witness intimidation, G. L. c. 268, § 13B; vandalizing

property, G. L. c. 266, § 126A; larceny from a person, G. L.

c. 266, § 25 (b); and assault and battery on a family member or

household member, G. L. c. 265, § 13M (a). The defendant

appeals, arguing that he was improperly doubly punished for a

single offense because he was sentenced on the greater charge of

assault and battery on a family or household member and its

lesser included offense of assault and battery, such that the

lesser charge must be dismissed. He also argues that his

convictions on two counts of assault and battery are duplicative

of each other, such that one count must be dismissed. We vacate
a single conviction for assault and battery, but affirm the

remaining convictions.

Background. In the light most favorable to the

Commonwealth, the jury could have found the following facts.

During their three months of dating, the victim had moved in

with the defendant. On October 9, 2019, the two returned home

from a party at about 2 to 3 A.M. when they got into an

argument, the defendant accusing the victim of cheating on him.

The defendant told the victim that if she tried to leave, he

would cut her, find the victim's daughter and kill her.1 The

defendant took the victim's phone, reviewed messages in which

she said she was going to leave him, and then crushed the phone

so that it broke and would not work.

A week or two later, the victim awoke to the defendant

screaming in her face that she was cheating, as he straddled her

body, pinning her down. The defendant pulled his head back and

then slammed it into the victim's face, causing himself a bloody

nose.

On October 22, 2019, the victim came home from work and

told the defendant about an incident with a coworker. When the

defendant again accused the victim of cheating, she grabbed her

1 The victim testified that the defendant held a knife to
her as he threatened her; however the jury acquitted the
defendant of the charge of assault with a dangerous weapon based
on the knife incident.

2
wallet and told him she was leaving. The defendant picked up a

knife, and the victim ran. The defendant caught up to her at

the doorway of the stairs, grabbed her and slammed her body into

the door frame. The victim's head got smashed; she felt dizzy

and crawled back to bed. The defendant took the victim's wallet

from her and threw it out the window.2 He then ran out of the

house, picked up the wallet, got into his car and drove away.

The victim left the house and ran to a nearby convenience

store for help, after which she reported to the police.

Discussion. The defendant's claims on appeal implicate the

double jeopardy clause of the Fifth Amendment, specifically the

protection against multiple punishments for the same offense;

because the claims were not preserved in the trial court,

however, we review for a substantial risk of miscarriage of

justice. See Commonwealth v. Traylor, 472 Mass. 260, 267 (2015)

(unpreserved claim of violation of double jeopardy based on

multiple punishments for same offense, reviewed under

substantial risk of miscarriage of justice).

2 The victim testified that, just before taking her wallet,
the defendant picked up a side table and swung it at her but
missed. The jury acquitted the defendant of assault with a
dangerous weapon based on the table incident.

3
1. Double punishment for single offense.3 The defendant

argues that the judge erred in sentencing him for the conviction

of assault and battery on a family or household member, as well

as for the lesser included offense of assault and battery. It

is true that one cannot be sentenced for both the greater and

lesser included of a single offense. See Commonwealth v. Vick,

454 Mass. 418, 433 n.15 (2009). It is also true that assault

and battery is a lesser included offense of assault and battery

on a family or household member. See Commonwealth v. D'Amour,

428 Mass. 725, 748 (1999). The question here is "whether there

is any significant possibility that the jury may have based

convictions of greater and lesser included offenses on the same

act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015).

Whereas here the judge gave no instruction on separate and

distinct acts, the prosecutor did not relate particular evidence

to specific charges and the verdict slips did not tie facts to

offenses, we conclude that there is a significant possibility

that the jury premised the conviction of assault and battery on

a family or household member on the same facts forming the basis

of one of the convictions for assault and battery. As a

consequence, one of the convictions for assault and battery must

3 The Commonwealth agrees that the defendant was
impermissibly sentenced on a greater charge and its lesser
included offense.

4
be vacated. See Commonwealth v. Mello, 420 Mass. 375, 398

(1995) (appropriate remedy is to vacate both sentence and

conviction on lesser included offense).

2. Duplicative convictions. The defendant also argues

that the two convictions for assault and battery are duplicative

of each other because they must be premised on the same set of

facts. He reasons that the original complaint charged him with

two separate assault and batteries by means of a dangerous

weapon, "to wit: his head," and that the evidence at trial

showed only one assault and battery committed by means of the

defendant's head.

First, we note that the dangerous weapon alleged in the

original complaint was not "his head" but rather "a head."

Second, there was evidence that the defendant used his head to

assault and batter the victim on one occasion. But there was

another occasion in which the defendant slammed the victim's

body into a door frame, such that her "head got smashed." In

any event, the original complaint was amended just prior to

trial, without objection, such that the jury heard only that the

defendant was charged with two counts of assault and battery,

without any reference to the manner in which they were

accomplished. Because there was evidence of two distinct

assault and batteries committed by the defendant on the victim,

5
the two convictions are not duplicative.4 See Commonwealth v.

Wooden, 103 Mass. App. Ct. 677, 683 (2024).

Conclusion. On count two of the amended complaint,

charging assault and battery, the judgment is vacated, the

verdict is set aside, and that count is to be dismissed.5 The

remaining judgments of conviction are affirmed.

So ordered.

By the Court (Desmond, Shin &
Singh, JJ.6),

Assistant Clerk

Entered: June 21, 2024.

4 Although the original complaint lists the assault and
batteries as having been committed on October 9 and 14 of 2019,
the evidence at trial was that the head-butting incident took
place "a week or two later," after the events of October 9,
2019, and the slamming into the door frame incident took place
on October 22, 2019. As the defendant acknowledges, the date of
the offense is not an element of the crime that must be proven;
so long as there is evidence supporting the commission of the
charged conduct, any variance as to the date will not warrant
reversal absent prejudice arising out of the variance. See
Commonwealth v. Lester, 70 Mass. App. Ct. 55, 70 n.16 (2007).
The defendant makes no claim on appeal that he was so
prejudiced.

5 "Because the defendant's sentence [on count two] did not
increase the amount of time that he would spend incarcerated,
. . . we need not remand this matter for resentencing."
Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).

6 The panelists are listed in order of seniority.

6