Commonwealth v. April Marie Restrepo.

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-673

COMMONWEALTH

vs.

APRIL MARIE RESTREPO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in District Court, the defendant was

convicted of one count of assault and battery on a household or

family member under G. L. c. 265, § 13M, and one count of

assault and battery by means of a dangerous weapon under G. L.

c. 265, § 15A. On appeal, the defendant argues that the judge

erred in denying her motions for required findings of not guilty

because the Commonwealth failed to prove that she did not act in

self-defense. We agree that the Commonwealth failed to meet its

burden of proof and, accordingly, reverse the defendant's

convictions.1

1The defendant also argues that the judge erred in
admitting body-worn camera footage in evidence because it was
more prejudicial than probative. Because we reverse the
Background. On the evening June 23, 2021, police were

called to the house of the father of the defendant's children in

Boston. Two officers responded, and one officer's body-worn

camera recorded the following interaction with the defendant.

The defendant told the officers that she had an altercation with

her girlfriend an hour earlier at the defendant's house several

blocks away. She reported injuries to her head and ankle.

After the officers called an ambulance, they asked the defendant

about the altercation. The defendant told them that she and her

girlfriend got into an argument, the defendant told the

girlfriend to leave the home, and the girlfriend refused. The

defendant then stated, "I got physical with her, and she got

physical back, and we've been going through this for days,

that's why I have old bruises, new bruises on me, cause this has

been like three days of this. . . . She's like emotionally

abusing me, and we're physically abusing each other." At this

point, an officer asked, "You said, you got physical with her,

and she got physical back?" and the defendant responded

affirmatively. After an officer asked, "Who had the weapon?"

the defendant answered "me" and stated that it was a knife. The

officers then arrested the defendant.

defendant's convictions for insufficient evidence, we do not
address that argument here.

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Before trial, defense counsel informed the judge and the

prosecutor that his client was going to testify and their theory

was self-defense. The Commonwealth's case-in-chief at trial

consisted of testimony from the two officers who responded to

the children's father's house, a redacted version of the body-

worn camera footage, and medical records of the girlfriend's

treatment after the altercation. The records from Boston

emergency medical services showed that the girlfriend had an

injury to her hand, also described as a small abrasion on her

forearm. Similarly, the emergency department records from

Boston Medical Center described the girlfriend's injury as a

small superficial laceration on her right thumb that was not

bleeding. After the Commonwealth rested, the defendant moved

for required findings of not guilty on the ground that, even

though the defendant had provided notice that self-defense was

at issue, the Commonwealth had not met its burden to prove that

the defendant did not act in self-defense. The judge denied the

motion, finding that "the Commonwealth has met its burden, at

least at this stage."

The defendant testified on her own behalf. She stated that

she and her girlfriend had a verbal confrontation in the

defendant's home. Her girlfriend hit her first and then punched

her approximately eight times until the defendant fell to the

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floor. The girlfriend was six to nine inches taller than the

defendant. While her girlfriend was hitting her, the defendant

retrieved a pocketknife from the nightstand because she was

concerned for her safety. As she was being punched, the

defendant accidentally cut or grazed the girlfriend's thumb with

the knife. There was no blood.

The defendant further testified that the altercation

started in the bedroom, but after she was pushed to the ground,

she got up and went into the hallway and then the living room.

The girlfriend followed her into the living room, the defendant

told her to pack up her stuff and leave, and another fist fight

broke out. The defendant left the house and walked without her

phone, keys, or shoes to the house of her children's father, six

to eight blocks away. Once the defendant arrived, the father

called the police, and eventually handed the defendant the

phone. During the prosecutor's cross-examination of the

defendant, the Commonwealth introduced a recording of the 911

call, which included the defendant's statements to the

dispatcher.

After the close of all evidence, the defendant renewed her

motion for required findings of not guilty on the ground that

the Commonwealth had not met its burden of disproving self-

defense. The judge denied the motion. In his closing argument,

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the prosecutor argued that "you lose the right to self-defense

if you started the fight," and, citing the defendant's

statements from the body-worn camera footage, argued: "So, who

started it? The defendant started it. The defendant struck

first, and the defendant escalated it when the fight did not go

her way." The prosecutor urged the jury to disregard the

defendant's trial testimony because the body-worn camera footage

showed her "admitting to starting the fight, and . . . admitting

to escalating it from a fist fight to a knife fight." The judge

instructed the jury on self-defense, and the jury returned a

verdict of guilty of both counts. The defendant again moved for

required findings of not guilty on the ground that the

Commonwealth did not disprove self-defense beyond a reasonable

doubt, and the judge denied the motion.

Discussion. The defendant argues that the trial judge

erred in denying her motions for required findings of not guilty

because the Commonwealth failed to meet its burden of proving

beyond a reasonable doubt that she did not act in self-defense.

We agree.

We first "consider the state of the evidence at the close

of the Commonwealth's case to determine . . . whether the

Commonwealth [had] presented sufficient evidence of the

defendant's guilt to submit the case to the jury" (citations

5
omitted). Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444

(2018), cert. denied, 139 S. Ct. 2010 (2019). We evaluate the

sufficiency of the Commonwealth's evidence to determine

"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). "Once self-

defense is put in issue, the Commonwealth must prove that the

defendant did not act in self-defense." Commonwealth v.

Kamishlian, 21 Mass. App. Ct. 931, 932 (1985). Specifically,

"the Commonwealth bears the burden of proving, beyond a

reasonable doubt, that the defendant did not act in self-

defense, by establishing that at least one of the three factors

did not exist (i.e., that the defendant did not have reasonable

concern for [her] safety, that [she] did not use all reasonable

means to avoid physical combat, or that the force that was used

was greater than necessary in all circumstances of the case)."

Commonwealth v. King, 460 Mass. 80, 83 (2011), citing

Commonwealth v. Glacken, 451 Mass. 163, 167 (2008).

In its case-in-chief, the Commonwealth introduced in

evidence the recorded statements that the defendant made in

response to the officers' questions after she arrived at the

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house of her children's father. Asked by the officers about

what happened, the defendant described a conflict that had

lasted "for days" between her and her girlfriend, during which

they were "physically abusing each other" and the defendant

ended up with "old bruises" and "new bruises on me." At one

point, the defendant stated about the altercation: "I got

physical with her, and she got physical back, and we've been

going through this for days." She then answered in the

affirmative to an officer's question, "You said, you got

physical with her, and she got physical back?" The defendant

also acknowledged that she had a knife.

The Commonwealth argues that these statements prove that

the defendant did not act in self-defense because she "admitted

that she initiated the physical aggression." See Commonwealth

v. Castillo, 485 Mass. 852, 856-857 (2020) ("A person who

initiates a fight cannot generally claim self-defense"). In his

closing argument, the prosecutor cited these statements as proof

that the defendant "started" the fight and "struck first," and

"escalated it when the fight did not go her way" by bringing "a

knife to a fist fight."

We disagree that the defendant's prearrest statements

sufficed to prove beyond a reasonable doubt that she was the

initial aggressor. Although it may have been "plausible" to

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infer from the statement "I got physical with her, and she got

physical back," that the defendant "struck first," that

inference "cannot bear the weight of proof beyond a reasonable

doubt." Commonwealth v. Lee, 460 Mass. 64, 71 (2011), quoting

Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010). Cf.

Commonwealth v. Silva, 482 Mass. 275, 289 (2019) (approving jury

instruction that "any inference constituting an element of an

offense must be established beyond a reasonable doubt").

Particularly given the defendant's description of the drawn-out

nature of the altercation and the distraught condition in which

she was questioned,2 more evidence was required for a rational

trier of fact to find beyond a reasonable doubt that the

defendant was the initial aggressor and, even if she was, that

she did not attempt to "withdraw[] in good faith from the

conflict." Commonwealth v. Chambers, 465 Mass. 520, 528 (2013),

quoting Commonwealth v. Maguire, 375 Mass. 768, 772 (1978).

Similarly, the defendant's acknowledgement to the officers that

she had a knife did not establish beyond a reasonable doubt the

inference that she used it to "escalate" the altercation.

2 Specifically, the defendant had just experienced the
altercation, walked multiple blocks from her house in bare feet,
leaving her children behind, and was awaiting medical attention
for a head injury.

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The Commonwealth's case did not improve after the defendant

testified on her own behalf. Even viewing that testimony in the

light most favorable to the Commonwealth, it shows that the

defendant did retreat from the conflict: first from her bedroom

to the living room, and then from her home altogether, without

her shoes and other essential belongings. Contrary to the

Commonwealth's argument, this testimony does not show that the

defendant chose to "return[] and continue[] the altercation,"

instead of retreating. The Commonwealth also argues that the

defendant "opted to escalate the altercation by grabbing a

knife, and then using said knife against the victim," but,

again, the defendant's testimony does not support that

conclusion. She testified that she removed a pocketknife from

the nightstand in order to defend herself from her girlfriend,

who was taller, larger, and had punched her until the defendant

fell to the floor. She testified that she was concerned for her

safety when she took out the knife, and that only an accidental

grazing of the girlfriend's thumb occurred during their

struggle.

While the jury were "entitled to disbelieve the evidence

that the defendant acted in self-defense," Commonwealth v.

Fluker, 377 Mass. 123, 128 (1979), the Commonwealth presented

little evidence other than the previously-discussed recorded

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statements by the defendant to satisfy its burden of proof. The

defendant's girlfriend did not testify. There was no testimony

by any other witness to the altercation, and therefore no

"conflicting versions of events" in the record for the jury to

resolve. Commonwealth v. Colas, 486 Mass. 831, 836 n.7 (2021).

See Commonwealth v. McGann, 484 Mass. 312, 326 (2020). Nor did

the Commonwealth present any circumstantial evidence sufficient

to disprove self-defense. See Commonwealth v. Lao, 443 Mass.

770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12

(2011). It introduced the girlfriend's medical records in

evidence, but those records, which showed a small abrasion or

laceration on her forearm or thumb, did not undermine the

defendant's testimony as to how the knife was used.

The Latimore standard requires the evidence to be more than

merely "sufficient . . . to permit the jury to infer the

existence of the essential elements of the crime charged."

Latimore, 378 Mass. at 677, quoting Commonwealth v. Sandler, 368

Mass. 729, 740 (1975). "Additionally, the evidence and the

inferences permitted to be drawn therefrom must be 'of

sufficient force to bring minds of ordinary intelligence and

sagacity to the persuasion of [guilt] beyond a reasonable

doubt.'" Id., quoting Commonwealth v. Cooper, 264 Mass. 368,

373 (1928). Thus, "it is not enough for the appellate court to

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find that there was some record evidence, however slight, to

support each essential element of the offense; it must find that

there was enough evidence that could have satisfied a rational

trier of fact of each such element beyond a reasonable doubt."

Latimore, supra at 677-678. Here, the inference that the

defendant was the first aggressor, based on nothing more than

ambiguous statements made to the officers at the house to which

she had retreated, was simply not strong enough, standing alone,

to prove beyond a reasonable doubt that she did not act in self-

defense.

Accordingly, the judgments of conviction are reversed, and

the verdicts are set aside. Judgments shall enter for the

defendant.

So ordered.

By the Court (Vuono, Shin &
Toone, JJ.3),

Assistant Clerk

Entered: May 28, 2024.

3 The panelists are listed in order of seniority.

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