Commonwealth v. Cheri M. Dobson.

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

24-P-400

COMMONWEALTH

vs.

CHERI M. DOBSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant, Cheri M. Dobson, was found guilty of assault and

battery, G. L. c. 265, § 13A (a), and the common-law crime of

affray. 1 The assault at issue occurred just outside and within

sight of the MBTA bus stop at Nubian Square, in the Roxbury

section of Boston, and was captured by video cameras. On

appeal, the defendant argues that the judge erred in denying her

motion for a required finding of not guilty because (1) as to

affray, the Commonwealth failed to present sufficient evidence

that the fighting at issue caused a person present in the public

1The defendant was found not guilty of assault and battery
by means of a dangerous weapon, G. L. c. 265, § 15A (b).
place to be put in fear, and (2) as to both affray and assault

and battery, that the Commonwealth failed to present sufficient

evidence that the defendant used unreasonable force in defending

her property. The defendant also argues that double jeopardy

principles prohibit convictions of both affray and assault and

battery. For the reasons set forth below, we affirm.

Background. We summarize the evidence presented at trial

in the light most favorable to the Commonwealth. See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On

August 4, 2020, at approximately 7 P.M., the victim was pushing

a cart down Ziegler Street in Roxbury, approximately one hundred

feet from the Nubian Square bus station. At the same time, the

defendant, who was standing on a nearby sidewalk with a friend,

dropped an item, which fluttered away from her in the wind.

Approximately fifteen seconds later, the victim bent down to

pick up an item off the ground.

The defendant approached the victim from behind, punched

her in the face with a closed fist, and yelled twice, "where's

my F-ing money." The defendant then grabbed the victim, and the

defendant's friend began to assist in the fight. The defendant

and her friend pushed the victim down, and punched and kicked

her while she was on the ground. Boston police Officer Oscar

Henriquez observed the altercation, and rendered assistance in

separating the parties.

2
In total, the fight took place over the course of

approximately thirty seconds to one minute. During this time,

several other persons were present in the area. On the video in

evidence, one can see a motor vehicle driver, and multiple

pedestrians, stop what they are doing and watch the altercation

unfold. One pedestrian observed the fight, then crossed the

road to the side away from it.

After a trial in March of 2023, the jury found the

defendant guilty of assault and battery and affray. This appeal

followed.

Discussion. 1. Affray. "[A]ffray [is] a common-law

crime, but with a definitional overlay" supplied by G. L.

c. 277, § 39. 2 Commonwealth v. Nee, 83 Mass. App. Ct. 441, 444-

445 (2013). An "affray is an offense against the public, an

aggravated disturbance of the public peace that arises when two

or more people fight in public and cause terror[3] to those

2 General Laws c. 277, § 39, defines "affray" as "[f]ighting
together of two or more persons in a public place to the terror
of the persons lawfully there."

3 We construe the term "terror," as used in G. L. c. 277,
§ 39, to mean "fear," in line with its definition at common law.
See Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011),
quoting Commonwealth v. Stokes, 440 Mass. 741, 747 (2004)
("Where the Legislature does not define a term, we presume that
its intent is to incorporate the common-law definition of that
term, 'unless the intent to alter it is clearly expressed'");
Nee, 83 Mass. App. Ct. at 444, quoting 3 Coke, Institutes *158
("An Affray is a publick offense to the terror of the King[']s
subjects, and . . . so called, because it affrighteth and maketh

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present." Id. at 444. The essential elements of the crime are:

(1) fighting by or between two or more persons; (2) in a public

place; and (3) causing fear in persons lawfully there. 4 See id.

The defendant argues that the Commonwealth failed to

present sufficient evidence of the third element 5 -- that is,

that a person lawfully present was placed in fear as a result of

the fighting. Specifically, the defendant contends that "[t]he

evidence at trial showed that the only person put in fear as a

result of the [fight] was [the victim]," and that because

"[affray] is a crime against the public, a party to [the fight]

cannot also be the person who was put in fear as a result of the

[fight]." We disagree with both the factual and legal premises

of the defendant's argument.

"The standard for evaluating a motion for a required

finding of not guilty is 'whether, after viewing the evidence in

men afraid . . ."); Dashiell v. State, 214 Md. App. 684, 690-691
(2013) (using the terms "fear" and "terror" interchangeably);
Matter of May, 357 N.C. 423, 428 (2003) ("actual fear
experienced by members of the public satisfies the terror
element").

4 In conformance with this definition, as well as
Instruction 6.100 of the Criminal Model Jury Instructions for
Use in the District Court (2014), the judge instructed the jury
that the Commonwealth was required to prove that "at least one
person who was lawfully present in the public place was put in
fear as a result of the fighting that occurred."

5 The defendant does not challenge the sufficiency of the
evidence for the first two elements, i.e., that two or more
persons fought in a public place.

4
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. James, 424 Mass.

770, 784 (1997), quoting Latimore, 378 Mass. at 677. "[W]e keep

in mind that the evidence relied on to establish a defendant's

guilt may be entirely circumstantial, and that the inferences a

jury may draw from the evidence 'need only be reasonable and

possible and need not be necessary or inescapable'" (citation

omitted). Commonwealth v. Linton, 456 Mass. 534, 544 (2010),

S.C., 483 Mass. 227 (2019). "Whether an inference is warranted

or is impermissibly remote must be determined, not by hard and

fast rules of law, but by experience and common sense" (citation

omitted). Commonwealth v. Lao, 443 Mass. 770, 779 (2005). "To

the extent that conflicting inferences may be drawn from the

evidence, it is for the jury to decide which version to credit."

Commonwealth v. Buttimer, 482 Mass. 754, 761 (2019), quoting

Commonwealth v. Webster, 480 Mass. 161, 167 (2018). "Because

the defendant moved for required findings at the close of the

Commonwealth's case and again at the close of all the evidence,"

Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006), we also

must "determine whether the Commonwealth's position as to proof

deteriorated after it closed its case," id., quoting

Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).

5
To begin, we do not agree with the factual premise of the

defendant's argument, which is that "the only person put in fear

as a result of the [fight] was [the victim]." Having reviewed

the video surveillance footage depicting the altercation and

surrounding area, we are satisfied that the jury could

reasonably have inferred that third-party bystanders were

present and placed in fear as a result of the assault. See

Linton, 456 Mass. at 544.

Several bystanders can be seen in the vicinity of the

assault as it is occurring, many of whom appear to be aware of

it. One such individual can be seen initially walking in the

direction of the fight, but then diverting his path away from it

and crossing the street, while looking over his shoulder in the

direction of the fight multiple times. A jury reviewing these

events could reasonably infer that this individual was placed in

fear of continuing on his initial path and therefore decided to

move to a safer location. See Lao, 443 Mass. at 779. In Nee we

suggested that putting a person in actual fear may not be

required, because "injury to public peace arises not so much

from [the] terror actually produced as [the] likelihood of

fighting in [a] public place to produce it." Nee, 83 Mass. App.

Ct. at 446, citing Carwile v. State, 35 Ala. 392, 394 (1860).

In this case, however, actual fear in at least this one third-

6
party bystander is reasonably inferable from the evidence. 6 For

this reason, the judge did not err in denying the defendant's

motion for a required finding of not guilty.

We also disagree with the defendant's legal argument that

in order to satisfy the "fear" element in the circumstances of

this case, the Commonwealth must show that the defendant caused

fear in persons other than the victims involved in the fight.

In support of her argument, the defendant cites purported

authority from English common law, court decisions of other

States, and legislative history in the Commonwealth.

We are not persuaded, as none of the authorities the

defendant cites stand for a proposition as broad as the

defendant asks us to accept. Affray requires that the fight

occur in a public place; it also requires that a member of the

public lawfully present reasonably be put in fear. But it does

not necessarily require that the person put in fear be someone

other than a victim.

Indeed, the above principles are evident from our prior

decision in Nee, where the persons put in fear were also the

victims. In Nee, the defendant, along with ten to fifteen other

individuals, set upon a victim, Monaco, in a public park. Nee,

83 Mass. App. Ct. at 443. Two of Monaco's friends, Pitt and

6 This evidence did not deteriorate after the Commonwealth
closed its case. See O'Laughlin, 446 Mass. at 198.

7
Marks, came to his aid, and became involved in the fighting.

Id. at 446. In concluding that the fighting caused fear to the

persons lawfully present in the park, the court explained,

"[t]hat the defendant and his group caused terror to Monaco,

Pitt, and Marks by surrounding and attacking them is reasonably

inferable from the evidence." Id. Implicit in this reasoning

is that the individuals involved in the fight may also be the

members of the public placed in fear. In Nee, there was no

evidence that there was anyone else in the park aside from the

defendants and the victims. See id. at 443.

The defendant contends that the aforementioned language

from Nee is merely dictum, as it was "unnecessary" and "passed

upon an issue not really presented" in the case. See

Commonwealth v. Rahim, 441 Mass. 273, 284 (2004). We do not

think the language is dicta, but in addition, Nee restated the

point when it later addressed the argument that the crime of

affray was unconstitutionally vague as applied:

"In the terms 'fighting together of two or more persons,'
'public place,' 'terror,' and 'persons lawfully present,' a
person of common intelligence would have little difficulty
understanding that one who was part of a group that engaged
in a coordinated and sustained physical attack upon
individuals lawfully present in a public park and caused
them terror committed affray" (emphasis added).

Nee, 83 Mass. App. Ct. at 449-450. In other words, the "persons

lawfully present," for purposes of the "fear" element, may

include individuals set upon in a public place. See id.

8
Therefore, the defendant's blanket argument that the individuals

involved in a fight cannot also be the members of the public

placed in fear is, at the least, overstated. 7

2. Defense of property. Next, the defendant claims that

the judge erred in denying her motion for a required finding of

not guilty as to the charges of affray and assault and battery

because the Commonwealth failed to present sufficient evidence

to demonstrate that the defendant's actions did not constitute

the use of reasonable force in defense of her property.

"A person 'may defend or regain [her] momentarily

interrupted possession [of personal property] by the use of

reasonable force, short of wounding or the employment of a

dangerous weapon.'" Commonwealth v. Ogarro, 95 Mass. App. Ct.

662, 666 (2019), quoting Commonwealth v. Donahue, 148 Mass. 529,

531 (1889). The use of force in defense of property is

justified when "(1) the defendant used only nondeadly force, and

7 It does not follow, however, that every fight in a public
place will amount to an affray. We highlight one limitation on
the offense as an example: the acts of the fighters, together
with the surrounding circumstances, must produce a reasonable
likelihood of placing in fear those lawfully present in the
public place. See Nee, 83 Mass. App. Ct. at 446, citing
Carwile, 35 Ala. at 394; Nottingham v. State, 227 Md. App. 592,
603 (2016). Evidence that the fight was mutual combat, or
planned by both parties, may bear on this issue. Thus, although
evidence that a fight occurred in a public place, under some
circumstances, "may be sufficient to establish, ipso facto, that
the fight resulted in 'terror to [those lawfully present]'"
(citation omitted), Nottingham, supra, the inference may not be
reasonable under other facts.

9
(2) the force used was 'appropriate in kind and suitable in

degree, to accomplish the purpose.'" Commonwealth v. Haddock,

46 Mass. App. Ct. 246, 248-249 (1999), quoting Commonwealth v.

Goodwin, 3 Cush. 154, 158 (1849).

"Where there is credible evidence to raise [the affirmative

defense of defense of property], the burden is on the

Commonwealth to prove beyond a reasonable doubt that the

defendant acted with force that was excessive in kind or

degree." Haddock, 46 Mass. App. Ct. at 248.

"[W]hen error is claimed with respect to a denial of a
[motion for a required finding of not guilty], this court
is obliged to consider the evidence in its light most
favorable to the Commonwealth. The sole question raised is
whether the evidence, considered in that light, is
sufficient to permit the jury to infer the essential
elements of the crime charged."

Commonwealth v. Fluker, 377 Mass. 123, 128 (1979).

Here, viewing the evidence in the light most favorable to

the Commonwealth, a reasonable jury could have found that the

defendant used excessive force against the victim. Officer

Henriquez testified that he witnessed the defendant, prior to

making a demand for the money, approach the victim from behind

and punch her in the face with a closed fist. Moreover, the

video surveillance showed the defendant striking the victim near

her head, forcefully throwing her to the ground, and continuing

to strike her while on the ground. The judge therefore did not

err in denying the defendant's motion.

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3. Double jeopardy. Finally, the defendant claims that

her convictions of affray and assault and battery are

duplicative and therefore violate the prohibition against double

jeopardy in the Fifth Amendment to the United States

Constitution and at Massachusetts common law. See Commonwealth

v. Rollins, 470 Mass. 66, 70 (2014). Specifically, the

defendant contends that assault and battery is a lesser included

offense of affray.

"The traditional rule in Massachusetts, as embodied in

Morey v. Commonwealth, 108 Mass. 433, 434 (1871) . . . , and its

progeny, is that 'a defendant may properly be punished for two

crimes arising out of the same course of conduct provided that

each crime requires proof of an element that the other does

not.'" Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting

Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). "As long

as each offense requires proof of an additional element that the

other does not, 'neither crime is a lesser-included offense of

the other, and convictions on both are deemed to have been

authorized by the Legislature and hence not [duplicative].'"

Vick, supra, quoting Commonwealth v. Jones, 382 Mass. 387, 393

(1981). "With respect to the application of this well-

established rule, we have stated that [t]he actual criminal acts

alleged are wholly irrelevant . . . rather, the elements of the

crimes charged are considered objectively, abstracted from the

11
facts [of any particular case]" (quotation and citation

omitted). Vick, supra.

Contrary to the defendant's assertion, assault and battery

is not a lesser included offense of affray, as each offense

contains an element that the other does not. See Vick, 454

Mass. at 431. Affray, unlike assault and battery, requires that

fighting occur in a public place. See Nee, 83 Mass. App. Ct. at

444. Assault and battery, unlike affray, requires the "use of

force upon the person of another" or an act that causes

"physical or bodily injury to another." Commonwealth v. Burno,

396 Mass. 622, 625 (1986). Affray does not require an actual

battery, as a threat to use physical force that is "objectively

possible of immediate execution" will suffice. See Nee, supra

at 446, quoting Commonwealth v. Sinai, 47 Mass. App. Ct. 544,

548 (1999) (affray requires "fighting," which involves either

"the use of physical force or violence or any threat to use such

force or violence if that threat is objectively possible of

immediate execution"). Principles of double jeopardy therefore

do not bar either of the defendant's convictions. 8

The defendant also asserts that Massachusetts "common law
8

may sometimes provide greater protection against double jeopardy
than does the United States Constitution," Commonwealth v.
Carlino, 449 Mass. 71, 79 n. 20 (2007), and contends that, even
if we "were to find that assault and battery and affray are not
cognate offenses, it was not the legislative intent that a
defendant should be punished for both where, as here, the victim
of the assault and battery is also the only member of the public

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Judgments affirmed.

By the Court (Massing,
Englander & D'Angelo, JJ. 9),

Clerk

Entered: August 4, 2025.

put in fear as a result of the [fighting]." As discussed,
supra, we disagree with the factual premise that the victim was
the only member of the public put in fear. Moreover, we
disagree with the defendant's assessment of the Legislature's
intent, particularly where "affray is an offense against the
public," Nee, 83 Mass. App. Ct. at 444, and assault and battery
is an offense against the person, see, e.g., Burno, 396 Mass. at
625.

9 The panelists are listed in order of seniority.

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