Commonwealth v. Nzamenya Rukebesha.

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-692

COMMONWEALTH

vs.

NZAMENYA RUKEBESHA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of two counts of assault and battery upon a police

officer, in violation of G. L. c. 265, § 13D; resisting arrest,

in violation of G. L. c. 268, § 32B; assault and battery upon a

person over sixty years of age with injury, in violation of

G. L. c. 265, § 13K (b); and assault and battery on a family or

household member, in violation of G. L. c. 265, § 13M (a). On

appeal, he argues the evidence was insufficient to support his

convictions. We affirm.

Background. We recite the facts the jury could have found,

viewing the evidence in the light most favorable to the

Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). On January 4, 2023, the defendant was at home with

his sixty-four year old wife (victim or wife), and their adult

son. The defendant, who had been drinking that night, asked his

wife to give him his shower sandals. She testified that she

told the defendant where the sandals were "instead of going to

get them, so he came and hit me." The defendant punched the

victim in the eye and on the forehead with his closed fist. The

victim's eye became swollen, and she instructed the son to call

911 so that she could go to the hospital.

Officers Nicholas Kydd and Roderick Wiggins were dispatched

to the family's apartment. Wiggins was driving a marked cruiser

and wearing a police carrier vest with a Lowell Police patch,

his badge and other "[police] gear" over his uniform. On

arrival, the officers spoke with the son and the victim, who was

holding her eye and crying. The son interpreted for the victim

because neither she nor the defendant spoke English. The

officers then made their way to a back room in the apartment,

where they located the defendant.

The officers, using the son as an interpreter, informed the

defendant that he was under arrest. Wiggins had his handcuffs

out during this exchange. The defendant did not cooperate and

retreated to another back room, where there was no light. The

officers then took the defendant down onto a mattress and urged

him to calm down, but the defendant continued resisting and

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wrestling them until all three men ended up on the ground.

During the altercation, the defendant headbutted both Wiggins

and Kydd. Eventually, the officers were able to place the

defendant in handcuffs and carried him to the kitchen to wait

for more police assistance to arrive.

At the close of the Commonwealth's case and the close of

all evidence, the defendant moved for a required finding of not

guilty. The trial judge denied both motions. The defendant

appealed, challenging the trial judge's conclusion that the

Commonwealth presented sufficient evidence to support his

convictions.

Discussion. On appeal the defendant challenges the denial

of his motions for a required finding of not guilty made at the

close of the Commonwealth's case and the close of all the

evidence.

In evaluating the denial of a motion for a required finding

of not guilty, we review the evidence in the light most

favorable to the Commonwealth to determine whether "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, 319 (1979). "The

inferences that support a conviction 'need only be reasonable

and possible; [they] need not be necessary or inescapable.'"

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Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016),

quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

"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).

1. Assault and battery upon the defendant's wife. The

defendant asserts that the Commonwealth's evidence was

insufficient to prove that he committed an assault and battery

on the victim because the Commonwealth did not prove that he

intended to make contact with the victim. See Commonwealth v.

Ford, 424 Mass. 709, 711 (1997) (conviction of assault and

battery requires proof that touching did not happen by

accident); Commonwealth v. Correia, 50 Mass. App. Ct. 455, 456

(2000) (assault and battery is defined as "intentional and

unjustified use of force upon the person of another, however

slight" [citation omitted]). We are not persuaded.

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Here, during the Commonwealth's case-in-chief, the victim

testified that she and the defendant were "at peace" before he

hit her. But after the victim did not get the defendant's

shower sandals for him, the defendant "punched" her twice with

his fists: once in the eye, then on the forehead. The

defendant argues that the victim's testimony claiming he hit her

is insufficient on its own to prove intent to make contact with

her. Not so. A reasonable jury could infer from the victim's

testimony that the defendant intentionally punched her when she

told him where the sandals were rather than get them for him.1

See Commonwealth v. Lahens, 100 Mass. App. Ct. 310, 318 (2021)

(defendant's intent may be established circumstantially). The

Commonwealth's evidence was sufficient to prove that the

defendant intended to make contact with the victim.

Nor did the defendant's evidence deteriorate the

Commonwealth's case. The defendant testified that he hit the

victim with his elbow, but that it was not intentional. The

jury were not required to credit the defendant's testimony, and

the additional evidence showing that the defendant was seventy

The verb "punch" carries with it a connotation of force
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delivered by a closed fist. See Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/punch
("punch" means "to strike with a forward thrust especially of
the fist" or "to drive or push forcibly by or as if by a
punch").

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years old and had suffered a disabling leg injury in 1990 would

not preclude a rational jury from inferring that the defendant

intended to punch the victim with his fist. See Kater v.

Commonwealth, 421 Mass. 17, 20 (1995) (deterioration occurs when

"evidence for the Commonwealth necessary to warrant submission

of the case to the jury is later shown to be incredible or

conclusively incorrect").

The defendant also argues that the victim's injuries did

not qualify as "bodily injury" under G. L. c. 265, § 13K. For

our purposes, "bodily injury" is defined as "substantial

impairment of the physical condition, including, but not limited

to, any burn, fracture of any bone, subdural hematoma, injury to

any internal organ, or any injury which occurs as the result of

repeated harm to any bodily function or organ, including human

skin." G. L. c. 265, § 13K (a). "A 'substantial impairment of

the physical condition' . . . occurs where an injury

considerably or significantly compromises the usual functioning

of any part of the victim's body." Commonwealth v. Robinson,

103 Mass. App. Ct. 361, 366 (2023), quoting Commonwealth v.

Ryan, 93 Mass. App. Ct. 486, 489–490 (2018).

Here, the victim's testimony was sufficient to prove she

suffered a bodily injury under the statute. She testified that

the defendant's first punch caused her eye to become so swollen

that she could not see out of it for a week, and that she had to

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stay in a hospital overnight. She also testified that she still

experienced pain and vision difficulties at the time of trial,

five months later. This testimony demonstrates that the

victim's injury compromised the usual functioning of her eye.

See Ryan, 93 Mass. App. Ct. at 491 (sufficient evidence of

bodily injury where victim's hip injury was "severe enough to

cause him pain and hamper his mobility for several weeks").

Contrast Commonwealth v. Sudler, 94 Mass. App. Ct. 150, 155

(2018) (insufficient evidence of bodily injury where there was

no testimony "that use of the victim's fingers was hampered for

any period of time" and "no evidence of treatment, continued

medical care, or any recovery period" was introduced).

Where the defendant's case did not include evidence

challenging this aspect of the victim's testimony, we are

satisfied that the Commonwealth's case had not deteriorated by

the close of all evidence. See O'Laughlin, 446 Mass. at 198.

2. Assault and battery upon a police officer (Kydd). The

defendant asserts that the Commonwealth's evidence was

insufficient to prove that, as to Kydd, he committed an assault

and battery on a police officer.2 He argues that the

Commonwealth proved neither that he intentionally made contact

2 The defendant does not challenge his conviction of assault
and battery on a police officer pertaining to Wiggins.

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with Kydd nor that he was aware that Kydd was a police officer

engaged in his duties.

The crime of assault and battery on a police officer

requires that "the officer must be engaged in the performance of

his duties at the time and the defendant must know that the

victim was an officer engaged in the performance of his duties."

Commonwealth v. Moore, 36 Mass. App. Ct. 455, 461 (1994).

Here, Wiggins' testimony about the defendant's physical

resistance to the officers was sufficient circumstantial

evidence to demonstrate that the defendant intended to make

contact with them. See Lahens, 100 Mass. App. Ct. at 318.

Wiggins testified that the defendant wrestled and headbutted

both officers, and that he pushed and shoved their arms away

while they tried to restrain him. The defendant's contention

that intent cannot be inferred in this case because there was no

light in the bedroom and the situation was confusing is

unavailing. That was an issue for the jury. Further, the

defendant presented no evidence contradicting Wiggins' testimony

at trial, so the sufficiency of the Commonwealth's evidence did

not deteriorate at the close of all evidence. In the light most

favorable to the Commonwealth, the jury's inference that the

defendant intended to make contact with Kydd -- even amidst the

darkness and confusion -- was "reasonable and possible."

Waller, 90 Mass. App. Ct. at 303.

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The defendant's argument that there was insufficient

evidence to prove that the defendant knew Kydd was a police

officer similarly fails. The defendant correctly points out

that, at the close of its case, the Commonwealth had presented

no direct evidence that Kydd was in uniform. However, Wiggins

testified that he was in uniform, driving a marked cruiser, and

was dispatched to assist Kydd in the area Kydd was responsible

for patrolling. Given Wiggins' testimony, it was "wholly within

[the jury's] province" to conclude that Kydd was in uniform,

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), and that the

defendant knew that Kydd was a police officer.

The only evidence the defendant offered to support his

argument on this point is that he is "not native to [the United

States]." The Commonwealth's case did not deteriorate because,

in the light most favorable to the Commonwealth, the

introduction of this evidence would not prevent any rational

juror from concluding that the defendant knew Kydd was a police

officer. See Latimore, 378 Mass. at 677.

3. Resisting arrest. The defendant argues that the

Commonwealth's evidence was insufficient to prove that the

defendant understood he was being arrested, which he correctly

identifies as a required element of resisting arrest. See

Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).

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"The standard for determining whether a defendant

understood that he was being arrested is objective -- whether a

reasonable person in the defendant's circumstances would have so

understood." Grant, 71 Mass. App. Ct. at 208. "It is not

necessary that officers use the word 'arrest' . . . ."

Commonwealth v. Portee, 82 Mass. App. Ct. 829, 833 (2012).

Here, Wiggins, in uniform after arriving in a marked police

cruiser, displayed a pair of handcuffs to the defendant.

Although the defendant could not speak English, the defendant's

son acted as an interpreter for the officers as they attempted

to inform the defendant that he was under arrest. Wiggins also

testified that, once in the bedroom, he and Kydd worked together

and tried to grab the defendant's arms. On this evidence, the

jury could have reasonably inferred that the uniformed police

officers' words and actions objectively communicated to the

defendant, even though he did not speak English, that he was

under arrest." Commonwealth v. Soun, 82 Mass. App. Ct. 32, 35

(2012) (situations commonly associated with arrest create

required level of understanding); Grant, 71 Mass. App. Ct. at

209. In response, the defendant began swearing at them and

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pushing and headbutting them away, from which the jury could

reasonably infer that the defendant resisted arrest.

Judgments affirmed.

By the Court (Henry, Hand &
Brennan, JJ.3),

Clerk

Entered: September 30, 2025.

3 The panelists are listed in order of seniority.

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