T. Rose for the defendant.
Catherine P. Sullivan, Assistant District Attorney, for the
a jury trial in the District Court, the defendant, Melvin
Lark, Jr., was convicted of assault and battery. The victim
was his fiancee's eight year old son. On appeal, the
defendant contends that the Commonwealth presented
insufficient evidence to disprove his parental privilege
defense and, in the alternative, that the judge's
instruction on parental privilege was
erroneous. We affirm.
school counsellor at the victim's school informed the
victim's mother that he needed a ride home because he had
been involved in an altercation with another student. The
mother, in turn, asked the defendant to pick up the victim
from the school. Upon the defendant's arrival, the victim
refused to leave the school and then protested getting into
the defendant's Jeep. A passerby noticed the defendant
yelling at the victim. She watched as he got into the back
seat and the defendant got into the driver's seat.
Through the tinted windows, the passerby saw the defendant
reach into the back seat and strike the victim several times.
The victim had his hands up as the Jeep was
"rocking." In addition, the school counsellor saw
the commotion in the Jeep from a school window. She ran
outside, where she saw the defendant hitting the victim as he
moved around in the back seat. The victim eventually jumped
out of the Jeep and ran back to the school as the defendant
drove away. At some point later, a friend of the victim's
mother came to collect him and noticed that he had a scratch
over his eye.
Parental privilege defense.
the defendant's conviction, the Supreme Judicial Court
issued Commonwealth v. Dorvil, 472 Mass. 1 (2015),
which refined the common-law parental privilege affirmative
defense to a charge of assault and battery. The
Dorvil framework provides that "a parent or
guardian may not be subjected to criminal liability for the
use of force against a minor child . . . provided that (1)
the force used against the minor child is reasonable; (2) the
force is reasonably related to the purpose of safeguarding or
promoting the welfare of the minor, including the prevention
or punishment of the minor's misconduct; and (3) the
force used neither causes, nor creates a substantial risk of
causing, physical harm (beyond fleeting pain or minor,
transient marks), gross degradation, or severe mental
distress." Id. at 12. "[E]ach of the three
prongs constitutes a question for the trier of fact, "
and the burden is on the Commonwealth to disprove at least
one prong beyond a reasonable doubt. Id. at 13.
Sufficiency of the evidence.
the framework set forth in Dorvil, the defendant
argues on appeal that the judge should have allowed his
motion for a required finding of not guilty because the
Commonwealth presented insufficient evidence to disprove each
prong of the parental privilege framework. We disagree.
Viewing the facts presented in the light most favorable to
the Commonwealth, Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), a reasonable juror could have
found that repeatedly striking the victim with sufficient
force to rock a Jeep back and forth was unreasonable, and not
for the purpose of safeguarding or promoting the child's
welfare. "As with other affirmative defenses, . . . the
Commonwealth bears the burden of disproving at least one
prong of the defense beyond a reasonable doubt."
Dorvil, supra. Having presented sufficient
evidence to disprove at least two of the Dorvil
prongs, the judge properly denied the defendant's motion.
Parental privilege instruction. At trial, the
defendant requested an instruction on the defense of parental
privilege, which the judge allowed. The instruction tracked
the language of instruction 5.11 of the Massachusetts
Superior Court Criminal Practice Jury Instruction (2013), and
the language of Commonwealth v. 0'Connor, 407
Mass. 663, 667 (1990), an earlier case in which the court
makes reference to the defense. The instruction given here
provided as follows:
"A person acting in the position of a parent and who has
assumed the responsibility of a parent may use reasonable
force to discipline his minor child for the purposes of
safeguarding or promoting the child's welfare. When I
talk about disciplining, I'm talking about those actions
that are taken by a person or one acting in the position of a
parent to control a child or to conform the child's
behavior to a set of rules or pattern[s]. . ., this parent --
this person acting in the parent's position may not of
course use excessive force as a means of discipline or
chastising and it is up to the Commonwealth to prove beyond a
reasonable doubt that the defendant was not so acting."
appeal, the defendant argues that a new trial is required
because the instruction did not precisely match the language
in Dorvil. In particular, he challenges the omission
of the phrase "including the prevention or punishment of
the minor's misconduct" following the instruction on
safeguarding or promoting the child's welfare,
Dorvil, supra at 12, as well as the
addition of the phrase, not in Dorvil, that the
action must be to "conform the child's behavior to a
set of rules or pattern[s]." These deviations, the
defendant argues, eliminated the possibility that he could be
lawfully using physical force to punish the victim as well as
to control him. The defendant further challenges the
judge's failure to capture the "core concept"
of Dorvil, i.e., the Commonwealth's burden to
disprove, beyond a reasonable doubt, at least one prong of
the three-prong framework. Because there was no objection to
the instruction as given, we review any error for a
substantial risk of a miscarriage of justice, and find no
judge's instruction incorporated the first two prongs of
the Dorvil framework: that reasonable or not
excessive force may be used, and that the force must be
applied for the purpose of safeguarding or promoting the
child's welfare, including controlling the child or
conforming the child's behavior to a set of rules. The
omission of the concept of "punishment" is
inconsequential given the judge's choice of words.
Physical discipline, by its very nature, is a type of
punishment for misconduct. Whether it is privileged is a
matter of degree concerning the force applied. That concept
is captured in the instruction given. As for the
Commonwealth's burden, while we agree that the
judge's language could have been more artful, the jurors
were fairly informed that the Commonwealth was required to
disprove, beyond a reasonable doubt, that the defendant was
acting within the bounds of the privilege. Finally, as for
the omission of the third prong of the framework, we conclude
that it had no material effect on the verdict where the
Commonwealth presented ample evidence to disprove that the
force used was reasonable, or for the purpose of safeguarding
or promoting the child's welfare. See Commonwealth v.
Randolph, 438 Mass. 290, 297 (2002) .