Commonwealth v. Clayden Chance.

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-950

COMMONWEALTH

vs.

CLAYDEN CHANCE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the District Court, the

defendant was convicted of assault and battery on a correctional

facility employee (assault and battery), G. L. c. 127,

§ 38B (b).1 He appeals, claiming that the evidence was

insufficient to support his conviction and that his trial

counsel was ineffective for not requesting an instruction on

self-defense. We affirm.

Background. "Because the defendant challenges the

sufficiency of the evidence presented, we summarize the facts

the [judge] could have found in the light most favorable to the

1The defendant was found not guilty of assault and battery
with a dangerous weapon, G. L. c. 265, § 15A (b).
Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431

(2015). In April 2021, the defendant was an inmate at the

Barnstable house of correction. He was placed in the quarantine

unit where, to mitigate exposure to COVID-19, the correction

officers were instructed to allow only one inmate out of their

cell at a time.

On the morning of the incident, the defendant requested a

plunger from a correction officer because the toilet in his cell

had overflowed. Because there was another inmate out of his

cell, the correction officer told the defendant that he would

open his cell door and give him a plunger when the other inmate

returned to his respective cell. The defendant became unhappy

and agitated and said, "Fuck you, bitch," to the correction

officer.

Sometime later, the canteen clerk delivered food to the

defendant by placing a bag on a metal table outside of the

defendant's cell. The defendant was instructed to retrieve his

food items from the metal table and then return to his cell

"without wandering anywhere else." When the clerk opened the

defendant's cell door, instead of going to the table to get his

food, the defendant went over to a sink some distance away,

which was in the opposite direction of the table. The defendant

walked at a fast pace with his head down while carrying an empty

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shampoo bottle. The correction officer instructed the defendant

that it was not time for him to do anything other than retrieve

his food and return to his cell. The defendant ignored the

correction officer's instructions multiple times. Once at the

sink, the defendant began filling up the shampoo bottle with hot

water from the instant hot water tap. The instant tap "produces

hot water that is at a higher temperature than the normal sink";

it is "typically used for cooking, such as ramen noodles, soups,

rice and making coffee."

The correction officer ordered the defendant to put the

bottle down and to return to his cell. In response, the

defendant said, "I've got something special for you." The

correction officer perceived the statement as a threat and

thought "that [he] was maybe in jeopardy of being assaulted with

the hot water." The correction officer again ordered the

defendant to put the bottle down; the defendant again ignored

the command. Consequently, the correction officer "felt it was

necessary to go hands on to try and disarm [the defendant] of

that weapon." The correction officer proceeded to push the

defendant against the table and tried to knock the bottle out of

his hands. In response, the defendant turned toward the

correction officer, swung his right arm up, and splashed the hot

water on the side of the correction officer's head. The hot

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water caused minor blistering to the correction officer's head

and neck.

The entire encounter between the defendant and the

correction officer is on videotape and was viewed by the trial

judge. The canteen clerk also saw the altercation and testified

at trial.

Discussion. 1. Sufficiency of the evidence. The

defendant asserts there was insufficient evidence to support the

conviction of intentional assault and battery. The canteen

clerk's testimony that he saw the defendant throw the hot water

at the correction officer, if credited, plainly was sufficient

to establish the elements of assault and battery on a correction

officer. See Commonwealth v. Porro, 458 Mass. 526, 529-530

(2010) (setting forth elements of assault and battery).2

"[M]aking judgments about witness credibility and the weight of

witness testimony is the function of the [fact finder]."

Commonwealth v. Celester, 473 Mass. 553, 562 (2016), abrogated

on other grounds by Commonwealth v. Wardsworth, 482 Mass. 454,

464 n.18 (2019). The trial judge also had the benefit of

watching the video footage of the encounter. Lastly, the

2 On appeal, the defendant only challenges the
Commonwealth's evidence that there was an intentional touching
sufficient to support a conviction of assault and battery on a
correction officer.

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defendant's comment, "I've got something special for you,"

permits an inference that the defendant's action of throwing hot

water on the correction officer was intentional. Viewing the

evidence in the light most favorable to the Commonwealth, we

conclude that the judge could find, beyond a reasonable doubt,

that the Commonwealth proved the elements of assault and battery

on a correction officer. See Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979).

2. Ineffective assistance of counsel. The defendant also

claims that his counsel was ineffective for failing to ask for

an instruction on self-defense. "Under the familiar Saferian

test, a defendant is denied constitutionally effective

assistance of counsel if the representation fell 'measurably

below that which might be expected from an ordinary fallible

lawyer,' and that the performance inadequacy 'likely deprived

the defendant of an otherwise available, substantial ground of

defence.'" Commonwealth v. Kolenovic, 471 Mass. 664, 673

(2015), S.C., 478 Mass. 189 (2017), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). In other words, "the

defendant must demonstrate that better work might have

accomplished something material for the defense" (quotation and

citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442

(2006).

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We see no deficiency in trial counsel's performance for two

reasons. First, "[i]n a jury-waived or nonjury case, the judge

need not expressly instruct [themself]. This is because we

presume that the judge 'correctly instructed [themself]' on the

law of evidence" (citations omitted). Commonwealth v. Sepheus,

468 Mass. 160, 170 (2014). Defense counsel's theory at trial

was that the correction officer initiated the physical

altercation with the defendant. The trial judge specifically

acknowledged during closing arguments that the defendant's

actions "could be a defensive move or reaction" when he threw

the hot water on the correction officer. Therefore, we assume

that the judge appropriately applied the law to the facts on the

issue of self-defense.

Secondly, because the victim is a correction officer, the

defendant has a right to self-defense only if the officer uses

excessive or unnecessary force. See Commonwealth v. Francis, 24

Mass. App. Ct. 576, 579 (1987). The testimony and video footage

make clear that the correction officer pushed the defendant and

in response, the defendant turned directly toward the officer

and raised his right arm, throwing the hot water at the officer.

The correction officer's actions were directly related to the

defendant refusing to comply with the repeated instructions to

drop the bottle and return to his cell and thus, were not

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excessive or unnecessary. Even in a light most favorable to the

defendant, he had no valid right to use self-defense against the

correction officer at the time he threw the hot water. See

Commonwealth v. Gomez, 450 Mass. 704, 708 (2008) ("We view

evidence pertaining to self-defense in the light most favorable

to the defendant").

Judgment affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.3),

Clerk

Entered: February 14, 2025.

3 The panelists are listed in order of seniority.

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