Commonwealth v. Joseph D. Nascimento.

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

25-P-328

COMMONWEALTH

vs.

JOSEPH D. NASCIMENTO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of assault and battery on a police officer, in

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

violation of G. L. c. 268, § 32B. 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 July 23, 2023, the arresting officer, Eric

Boulay of the New Bedford police department, was on routine

patrol when he received a call to assist other officers who were
investigating a possible restraining order violation. Officer

Boulay was wearing a police uniform, including a vest marked

with the word "police" on the back. When he arrived at the

scene, Officer Boulay saw two other police officers approaching

the defendant. While Officer Boulay did not hear what the other

officers said to the defendant, he heard the defendant tell the

two police officers, "Fuck you, no," and saw the defendant run

away from the officers. Officer Boulay was aware that the

defendant had allegedly violated a restraining order and that he

had outstanding arrest warrants.

Officer Boulay pursued the defendant, grabbed hold of him,

and tackled him to the ground. The defendant immediately began

kicking, pushing, and punching, and he placed his hands in a

locked position underneath his chest. Officer Boulay grabbed

the defendant by the bicep, told him that he was under arrest

for the outstanding warrants, and attempted to grab his hands

and handcuff him. The defendant continued to fight Officer

Boulay's attempts to handcuff him. Additional uniformed police

officers arrived and attempted to pry the defendant's hands from

underneath his body. The defendant continued to struggle and

refused to release his arms, prompting Officer Boulay to warn

the defendant that if he did not cooperate, he would use his

taser and pepper spray. Officer Boulay administered the pepper

spray and the taser, but the defendant continued to resist,

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screaming profanities and telling the police officers that he

was going to kill them. Officer Boulay was able to take hold of

one of the defendant's hands and place a handcuff on him, but

when Officer Boulay attempted to grab the defendant's other

hand, the defendant bit Officer Boulay's left hand. To get his

hand out of the defendant's mouth, Officer Boulay struck the

defendant with a closed fist to the jaw area. The defendant was

then placed in handcuffs and arrested.

Discussion. The defendant challenges the denial of his

motions for required findings 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.'" Commonwealth v.

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

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

1. Resisting arrest. A defendant resists arrest when he

"knowingly prevents or attempts to prevent a police officer,

acting under color of his official authority, from effecting an

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arrest" by either (1) "using or threatening to use physical

force or violence against the police officer" or (2) "using any

other means which creates a substantial risk of causing bodily

injury" to the police officer. G. L. c. 268, § 32B (a),

inserted by St. 1995, c. 276.1 The crime of resisting arrest is

"committed, if at all, at the time of the 'effecting' of an

arrest." Commonwealth v. Grandison, 433 Mass. 135, 145 (2001),

quoting G. L. c. 268, § 32B. Recently, in Commonwealth v.

Manolo M., 496 Mass. 244 (2025), the Supreme Judicial Court

reiterated that an arrest "occurs where there is (1) 'an actual

or constructive seizure or detention of the person,'

(2) 'performed with the intention to effect an arrest' and (3)

'so understood by the person detained.'" Id. at 264, quoting

Grandison, supra at 145. As to the third element, "[t]he

standard for determining whether a defendant understood that he

1 For purposes of the statute,

"[i]t shall not be a defense to a prosecution under this
section that the police officer was attempting to make an
arrest which was unlawful, if he was acting under color of
his official authority, and in attempting to make the
arrest was not resorting to unreasonable or excessive force
giving rise to the right of self-defense. A police officer
acts under the color of his official authority when, in the
regular course of assigned duties, he is called upon to
make, and does make, a judgment in good faith based upon
the surrounding facts and circumstances that an arrest
should be made by him."

G. L. c. 268, § 32B (b).

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was being arrested is objective -- whether a reasonable person

in the defendant's circumstances would have so understood."

Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).2

The defendant contends that there was insufficient evidence

to establish that he knew he was being placed under arrest or

that his actions created a substantial risk of bodily injury.

We are not persuaded. The defendant was seized once Officer

Boulay tackled him to the ground and told him he was under

arrest. Officer Boulay testified that he was aware that the

defendant had outstanding warrants and intended to place him

under arrest. Finally, and contrary to the defendant's claim

that there was no clear communication that he was under arrest,

Officer Boulay, who was wearing a police uniform, testified that

he grabbed the defendant by the bicep and told the defendant

that he was placing him under arrest for the outstanding

warrants. Thus, all three elements of an arrest were present --

the defendant's seizure, Officer Boulay's intent to effect an

arrest, and "an understanding by a reasonable defendant that he

was under arrest." Grant, 71 Mass. App. Ct. at 210. In Grant,

the Supreme Judicial Court held that the evidence was

insufficient to support a conviction for resisting arrest where

2 In fact, "it is not necessary that officers use the word
'arrest.'" Commonwealth v. Portee, 82 Mass. App. Ct. 829, 833
(2012).

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the defendant initially fled from police but discontinued his

flight and "offered no physical resistance" once police cornered

him and told him to get on the ground. Id. Here, unlike Grant,

the defendant's continued resistance and attempts to fight with

officers after Officer Boulay clearly communicated that he was

under arrest for outstanding warrants were sufficient to support

a conviction.

The fact that the defendant was later acquitted of the

charge of violation of a restraining order is of no moment,

especially here where the defendant had outstanding arrest

warrants. The relevant inquiry is not whether the defendant

could succeed on a motion to suppress or be found not guilty at

trial. "Rather, the proper focus is whether, at the time of the

interaction, the officer, acting under color of authority,

arrested the defendant, and whether the defendant resisted that

arrest with force or violence or a means creating a substantial

risk of causing bodily injury to the officer."3 Commonwealth v.

Lender, 66 Mass. App. Ct. 303, 352-353 (2006).

3 Because we have found that the evidence supports the
inference that the defendant used physical force in resisting
arrest, we need not address his claim that his actions of
running away from the police did not create a substantial risk
of causing bodily injury to the officers. While case law
supports the defendant's contention that running away from the
police does not amount to resisting arrest, the defendant did
more than simply run after it was clear he was under arrest. He
stiffened his arms under his body to prevent the officers from

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2. Assault and battery on a police officer. The defendant

further contends that the Commonwealth's evidence was

insufficient to prove that he committed an assault and battery

on a police officer because he contends the police used

excessive force in placing him under arrest and he was therefore

entitled to defend himself with reasonable force. Assault and

battery is the "intentional and unjustified use of force upon

the person of another, however slight, or the intentional

commission of a wanton or reckless act (something more than

gross negligence) causing physical or bodily injury to another"

(quotation and citation omitted). Commonwealth v. Correia, 50

Mass. App. Ct. 455, 456 (2000). To establish assault and

battery on a police officer, the Commonwealth must also prove

that the officer was "engaged in the performance of his duties

at the time [of such assault and battery] and the defendant

[knew] that the victim was an officer engaged in the performance

of his duties." Commonwealth v. Tyson, 104 Mass. App. Ct. 739,

742 (2024), quoting Commonwealth v. Moore, 36 Mass. App. Ct.

455, 461 (1994).

There was sufficient evidence to establish that the

defendant, intentionally and without justification, bit Officer

Boulay's hand while he was attempting to place him under arrest.

handcuffing him. He also pushed, punched, and kicked Officer
Boulay, and bit his hand.

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Viewing the evidence in the light most favorable to the

Commonwealth, Officer Boulay clearly was engaged in the

performance of his duties, which the defendant undoubtedly knew

since the defendant was told that he was under arrest and was

surrounded by numerous uniformed police officers. The testimony

of Officer Boulay was sufficient for a jury to conclude that the

defendant committed an assault and battery on a police officer.

Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 6 (2021)

(victim's testimony alone suffices to support conviction).

The defendant's contention that he acted in self-defense

and that the judge erred in denying his motion for a required

finding of not guilty is unavailing. At trial, the defendant

raised the affirmative defense of self-defense, and the judge

properly instructed the jury on the elements of self-defense.

The questions of whether the police used excessive force in

placing the defendant under arrest and whether the defendant's

use of force in defending himself was reasonable were questions

of fact to be resolved by the jury. See Commonwealth v.

Moreira, 388 Mass. 596, 602 (1983). There was ample evidence,

when viewed in the light most favorable to the Commonwealth, to

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support the judge's denial of the motion for a required finding

of not guilty based on self-defense.

Judgments affirmed.

By the Court (Walsh, Toone &
Tan, JJ.4),

Clerk

Entered: February 2, 2026.

4 The panelists are listed in order of seniority.

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