Commonwealth v. Luis Orta.

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-808

COMMONWEALTH

vs.

LUIS ORTA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted after a jury-waived trial of assault and battery

by means of a dangerous weapon (a sandal), G. L. c. 265,

§ 15A (b), on his eight year old son, the defendant appeals.1 He

argues that the judge should have allowed his motion for a

required finding of not guilty because the evidence did not

establish the elements of the crime and the prosecutor

misrepresented the victim's testimony in her closing argument.

As we conclude that there was insufficient evidence to prove

1The defendant was also charged with assault and battery by
means of a dangerous weapon (a spatula), G. L. c. 265,
§ 15A (b); assault and battery on a child causing bodily injury,
G. L. c. 265, § 13J (b); and intimidation of a witness, G. L.
c. 268, § 13B. The judge acquitted the defendant of these three
charges.
that the sandal was used as a dangerous weapon, we vacate the

judgment of conviction on the charge of assault by means of a

dangerous weapon, order the entry of a new judgment of

conviction on the lesser included offense of assault and

battery, G. L. c. 265, § 13A (a), and remand for resentencing.

Background. The complaint alleged that between May 26 and

30, 2017, the defendant assaulted and beat the victim by means

of a dangerous weapon, a sandal. At trial, the Commonwealth's

case consisted of the testimony of the victim and photographic

exhibits. At the close of the Commonwealth's case, the

defendant moved for a required finding of not guilty, which the

judge denied. The defendant then testified that during Memorial

Day weekend 2017 he did not discipline the victim and did not

hit him, but on another occasion pulled the victim's ear. The

judge found the defendant guilty, and the defendant appealed.

Discussion. 1. Dangerous weapon. The defendant argues

that he was entitled to a required finding of not guilty because

the Commonwealth did not prove that he intentionally touched the

victim with the sandal in a manner using it as a dangerous

weapon.

When reviewing for sufficiency of the evidence, we consider

the evidence "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 reasonable doubt"

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(citation omitted). Commonwealth v. Lagotic, 102 Mass. App. Ct.

405, 407 (2023). See Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). To prove assault and battery by means of a

dangerous weapon, the Commonwealth was required to establish

that the defendant committed an "intentional, unjustified

touching, however slight, by means of [a] dangerous weapon."

Commonwealth v. Appleby, 380 Mass. 296, 306 (1980). See

Instruction 6.300 of the Criminal Model Jury Instructions for

Use in the District Court (2019). To prove that an object is a

dangerous weapon, the Commonwealth must establish either that it

is dangerous per se or it is "used in a manner that makes it

dangerous in fact." Commonwealth v. Leonard, 90 Mass. App. Ct.

187, 191 (2016). As a sandal is not an object that is dangerous

per se, the Commonwealth needed to prove that the defendant used

it in a manner "capable of producing serious bodily harm."

Commonwealth v. Mattei, 455 Mass. 840, 844 (2010), quoting

Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).

During direct examination of the victim, the prosecutor

stated that she was showing the victim "the third page," from

which we infer that she showed the victim Exhibit 3.2 Exhibit 3

consisted of two photographs, one of the victim's ear and the

2 When referring to those exhibits during the victim's
testimony, the prosecutor did not mention the exhibit number,
but rather referred to what she was showing the victim as "the
third picture or the third page."

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other of his neck. Without specifying which photograph she was

referring to, the prosecutor elicited the following testimony:

Prosecutor: "Okay. So we're going to look at the third
picture or the third page. What's that a picture of?"

Victim: "This right here, I kind of got -- he kind of got
mad and -- I forgot. I can't answer that."

Prosecutor: "When you say he, who is he?"

Victim: "Dad [the defendant] . . . . Sometimes if you
didn't listen, he'd grab something like harmful and hit us
with it. And this one is the same thing as getting --
being tugged by the ear."

Prosecutor: "And that's a picture of your ear?"

Victim: "Yes."

Prosecutor: "You said sometimes he would grab things?"

Victim: "Yeah; that are harmful."

Prosecutor: "Like what?"

Victim: "Like a -- like sandals . . . . Sandals. And
other harmful things, except weapons. No weapons. He
never did that."

. . . .

Prosecutor: "What would he do with the sandal?"

Victim: "He -- he'd, if -- he'd sometimes give -- give us
a second chance. If you don't follow what he said, he will
just -- he will -- he will just come over and -- and use
that harmful -- harmful object to -- to harm us."

Prosecutor: "And how would he harm you?"

Victim: "He'd -- he'd hit us with it sometimes. If we
didn't really listen, we'd probably get in trouble. But
sometimes he'd put us in time-out. Sometimes, but not --
not always."

Prosecutor: "Okay. Do you remember what part of your body
he would hit you with the sandal with?"

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Victim: "I can't answer that. I forgot about it."

Even assuming that testimony, in the light most favorable

to the Commonwealth, amounted to proof that the defendant hit

the victim with a sandal "to harm [him]," it did not suffice to

prove that the defendant used the sandal in a manner capable of

producing "serious bodily harm." Mattei, 455 Mass. at 844.

There was no evidence about the size, weight, or material of the

sandal, or the force with which the defendant handled it. See

Appleby, 380 Mass. at 307 n.5 (relevant factors in determining

whether object is dangerous include "nature, size, and shape of

the object as well as the way in which it is handled"). Nor was

there evidence about where on the victim's body he was hit with

the sandal. Contrast Commonwealth v. Fernandez, 43 Mass. App.

Ct. 313, 316 n.8 (1997) (kick to groin is "more than capable of

causing severe injury without regard to the manner and force of

the kick"). The Commonwealth never established any connection

between the victim's testimony that he was "hit" with the sandal

and the photographs of injuries. And, in response to a direct

question about where the defendant hit him with the sandal, the

victim replied, "I can't answer that. I forgot." Therefore,

the Commonwealth did not prove that the defendant used the

sandal in a manner capable of producing serious bodily harm, and

thus did not prove that it was a dangerous weapon.

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When a fact finder "convicts a defendant of a crime despite

insufficient evidence of a required element" and the "remaining

untainted elements include all the elements of a lesser included

offense, we generally correct the error by vacating conviction

of the greater crime, and remanding for entry of conviction of

the lesser included offense." Commonwealth v. Garrett, 473

Mass. 257, 266 (2015), quoting Commonwealth v. Labadie, 467

Mass. 81, 88, cert. denied sub nom. Carcieri v. Massachusetts,

574 U.S. 902 (2014). In this case, the evidence proved the

elements of the lesser included offense of simple assault and

battery, G. L. c. 265, § 13A (a). See Commonwealth v. Kelly,

470 Mass. 682, 699 (2015). The victim testified that the

defendant hit him with "harmful object[s]," including a sandal.

In those circumstances, we order entry of a conviction on the

lesser included offense of assault and battery.

2. Date of offense. The defendant argues that the

Commonwealth did not prove that the crime occurred during the

four-day period alleged in the complaint, May 26 to 30, 2017.

The argument is unavailing. "These dates are not an essential

element of the crime." Commonwealth v. Sullivan, 492 Mass. 36,

48 n.23 (2023). The lack of evidence that the assault and

battery occurred during those four days does not, in the absence

of prejudice, warrant reversal of the defendant's conviction.

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See G. L. c. 277, § 35; Commonwealth v. Lester, 70 Mass. App.

Ct. 55, 70 n.16 (2007).

3. Parental discipline defense. The defendant claims, for

the first time on appeal, that the Commonwealth did not prove

that the assault and battery was unjustified because as a parent

he was entitled to use reasonable force to discipline the

victim. The problem with his claim is that he never raised a

parental privilege defense at trial.

Parental privilege is an affirmative defense. See

Commonwealth v. Dorvil, 472 Mass. 1, 12-13 (2015). "As with

other affirmative defenses," if the parental privilege defense

is properly raised before the fact finder, "the Commonwealth

bears the burden of disproving at least one prong of the defense

beyond a reasonable doubt." Id. at 13. Had the defendant

properly raised the parental privilege defense, the Commonwealth

would have been required to prove that (1) the force used

against the victim was unreasonable, (2) the force used was not

reasonably related to preventing or punishing the victim's

misconduct, or (3) the force caused (or created a substantial

risk of causing) physical harm, gross degradation, or severe

mental distress. Id. at 12.

Rather than raise a parental privilege defense, the

defendant testified that he never hit the victim with any

objects and that specifically during Memorial Day weekend 2017

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he did not discipline the victim and did not hit him. In those

circumstances, a parental privilege defense was not available to

him. Cf. Commonwealth v. Grafton, 93 Mass. App. Ct. 717, 722-

723 (2018) (defendant did not raise defense of authority to

remove smoke detectors, but testified "he had nothing to do

with" their removal, so defense of authority was "unavailable to

him"). Contrast Commonwealth v. Rosa, 94 Mass. App. Ct. 458,

462-463 (2018) (defendant raised parental privilege defense).

4. Closing argument. The defendant contends that in her

closing argument the prosecutor misrepresented the victim's

testimony. Specifically, the defendant takes issue with the

prosecutor's argument that the victim was "very clear in regards

to –- and I believe it was Exhibit No. 3. There was a mark on

the back of his neck. He stated that was from being hit with a

sandal." The defendant did not object, and so we review for a

substantial risk of a miscarriage of justice. See Commonwealth

v. Martinez, 67 Mass. App. Ct. 788, 796 (2006).

As discussed above, the victim did not testify that the

defendant used the sandal to cause any injury depicted in the

photographic exhibits. But even if the prosecutor erred in

making that argument, there was no substantial risk of a

miscarriage of justice, because we have ordered that so much of

the conviction must be vacated as alleged that the defendant

used the sandal as a dangerous weapon. Moreover, when a judge

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is the fact finder at trial, "it is presumed that the

judge . . . applies correct legal principles" (quotation and

citation omitted). Commonwealth v. Daley, 66 Mass. App. Ct.

254, 257 (2006). As this trial was jury-waived, we assume, as

we must, that the judge correctly applied the law and relied on

his own memory of the evidence. In those circumstances, we

discern no substantial risk of a miscarriage of justice.

Conclusion. The judgment of conviction on the complaint

charging the defendant with assault and battery by means of a

dangerous weapon, G. L. c. 265, § 15A (b), is vacated, and the

finding is set aside. A new judgment of conviction shall enter

on so much of the complaint as alleges the lesser included

offense of assault and battery, G. L. c. 265, § 13A (a). The

matter is remanded for resentencing.

So ordered.

By the Court (Shin, Grant &
Smyth, JJ.3),

Clerk

Entered: September 27, 2024.

3 The panelists are listed in order of seniority.

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