Commonwealth v. Misael Contreras.

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-323

COMMONWEALTH

vs.

MISAEL CONTRERAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury found the defendant guilty of assault

and battery on a police officer, G. L. c. 265, § 13D, and

trespassing, G. L. c. 266, § 120.1 On appeal, the defendant

argues that his motions for required findings of not guilty

should have been allowed as to both counts. We affirm.

Background. We recite the facts in the "light most

favorable to the Commonwealth," Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). On July 12, 2019, the defendant's

then wife drove the defendant back to her apartment. At the

time, the defendant and his wife were separated, and she had a

lease on which the defendant was not listed. After the

defendant started cooking some food, he and his wife got into an

1 The jury found the defendant not guilty of disorderly conduct
and resisting arrest.
argument over money. The defendant had been drinking shots of

bourbon. The defendant became angry, so his wife asked him to

leave her apartment. The defendant, however, refused to leave.

He broke his wife's microwave and pulled down a curtain. The

defendant's wife repeatedly asked the defendant to leave, at

least five times, but the defendant refused to leave. She

called her daughters and asked them to come to the apartment and

tell the defendant to leave. When the daughters arrived, one of

them called the police.

Blackstone police officers came to the apartment and found

the defendant yelling in the hallway. The officers told the

defendant four or five times to leave the apartment building,

but he refused to exit "unless his son came to shoot him or he

left with the police." One of the defendant's wife's daughters

offered to drive the defendant home, but he refused. The

defendant was placed under arrest.

After a struggle with the police, the defendant was

handcuffed and placed in the back of a police cruiser. During

the ride to the police station, the defendant made derogatory

statements toward the officer. While in the booking area, the

defendant reached down and grabbed the police officer's

"privates," which caused an "immense amount of pain." The

officer testified that he yelled out, "You just grabbed me by

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the balls" or "something to that effect." A physical struggle

between the defendant and police officers ensued.

Discussion. 1. Standard of review. In reviewing the

sufficiency of the evidence, we ask "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." Latimore, 378 Mass. at

677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

"The relevant question is whether the evidence would permit a

jury to find guilt, not whether the evidence requires such a

finding" (citation omitted). Commonwealth v. Sinforoso, 434

Mass. 320, 326-327 (2001). "Because the defendant moved for

required findings at the close of the Commonwealth's case and

again at the close of all the evidence, '[w]e consider the state

of the evidence at the close of the Commonwealth's case to

determine whether the defendant's motion should have been

granted at that time. We also consider the state of the

evidence at the close of all the evidence, to determine whether

the Commonwealth's position as to proof deteriorated after it

closed its case.'" Commonwealth v. O'Laughlin, 446 Mass. 188,

198 (2006), quoting Commonwealth v. Sheline, 391 Mass. 279, 283

(1984).

2. Assault and battery on a police officer. The defendant

claims that there was insufficient evidence presented to

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establish that he assaulted the police officer because the

booking video footage does not show the actual assault, and

"with no visual evidence," "all that the jury had to go on was

the accusation of the Sergeant." To convict a defendant of

assault and battery on a police officer, the Commonwealth must

prove that the defendant committed "an assault and battery upon

any public employee when such person is engaged in the

performance of his duties at the time of such assault and

battery." G. L. c. 265, § 13D. The Commonwealth must also

prove that the defendant knew that the victim was an officer

engaged in the performance of his duties. Commonwealth v.

Francis, 24 Mass. App. Ct. 576, 577 (1987).

There was sufficient evidence to establish that the

defendant, intentionally and without justification, touched the

officer in his private area while the officer was bringing the

defendant into the booking area to be booked. The police

officer clearly was engaged in the performance of his duties,

which the defendant undoubtedly knew since the defendant had

been arrested and was at the police station to be booked. The

defendant does not assert otherwise. Contrary to the

defendant's argument, the testimony of the officer was

sufficient for a jury to conclude that the defendant committed

an assault and battery. Commonwealth v. Gonzalez Santos, 100

Mass. App. Ct. 1, 6 (2021) (victim's testimony alone suffices to

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support conviction). Moreover, the booking video footage

corroborates the officer's testimony, where the sergeant plainly

yells, "you grabbed my nuts." This evidence was sufficient to

support the defendant's assault and battery on a police officer

conviction and was not undermined by the testimony of the

defendant or his witness.

3. Trespass. The criminal trespass statute provides, in

pertinent part, that "[w]hoever, without right enters or remains

in or upon the . . . improved or enclosed land . . . of another,

. . . after having been forbidden so to do by the person who has

lawful control of said premises, whether directly or by notice

posted thereon, . . . shall be punished." Commonwealth v.

Grayson, 96 Mass. App. Ct. 748, 756 (2019), quoting G. L.

c. 266, § 120. A defendant may be found in violation of the

statute by "remaining on the premises after having been asked to

leave." Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 948

(1991).

Because the defendant's name was not on the lease for the

apartment, he could only lawfully remain on the premises with

his wife's permission. The defendant's wife repeatedly told the

defendant to leave the apartment and the defendant refused

multiple times. The police also repeatedly asked him to leave

the building and he refused. This evidence was sufficient to

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support the conviction of trespass and did not deteriorate after

the defendant and his witness testified.

Judgments affirmed.

By the Court (Henry,
D'Angelo & Hodgens, JJ.2),

Assistant Clerk

Entered: February 22, 2024.

2 The panelists are listed in order of seniority.

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