Assault and Battery. Words, "Substantive dating
Michael A. Waryasz for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Bauer, for Tyrone Stampley, amicus curiae, submitted a brief.
jury trial, the defendant, Donald Dustin, was convicted in
the Marlborough Division of the District Court Department of
assault and battery on a family or household member, in
violation of G. L. c. 265, § 13M (a.) - We granted the
defendant's application for direct appellate review to
consider the "substantive dating relationship"
element of § 13M (a.) . We affirm.
Timing of the defendant's motion.
defendant did not make a timely motion at the close of the
Commonwealth's case for a required finding of not guilty
with respect to the assault and battery charge. See Mass. R.
Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995). See also
Commonwealth v. Brown, 449 Mass. 747, 762 (2007).
Had he done so, we would have considered only the evidence
admitted during the Commonwealth's case-in-chief to
decide "whether the Commonwealth presented sufficient
evidence of the defendant's guilt to submit the case to
the jury." Commonwealth v. Piatt, 440 Mass.
396, 400 (2003) . See Brown, supra;
Commonwealth v. Berry, 431 Mass. 326, 331-332
(2000). Cf. Commonwealth v. Hurley, 455 Mass. 53, 69
n.15 (2009) (motion for required finding filed "after
the Commonwealth has rested and before the defense was
invited to present evidence" must be ruled on at that
time). Instead, we consider whether the evidence during the
entire trial, including the evidence presented during the
defendant's case, was sufficient to sustain the
detailed description of the events of August 28, 2014, which
gave rise to the criminal charges, is unnecessary to this
appeal. It suffices to say that in the light most favorable
to the Commonwealth, see Commonwealth v. Latimore,
378 Mass. 671, 677-678 (1979), there was evidence at trial
that the defendant and Stacey D. Rock were in a parked
vehicle when a witness observed an altercation between the
two of them. After they were confronted by the witness, the
defendant drove off at a high rate of speed and he was
stopped a short time later for various motor vehicle
infractions. A police officer testified that when he asked
the defendant why he had been driving "that way, "
the defendant replied, "something to the nature of that
he was pissed off because he had just got in a fight with his
girlfriend and that he knew he was driving like an
idiot." The defendant indicated to the officer that Rock
was his girl friend. This was the state of the evidence when
the Commonwealth rested its case.
defendant testified in his own defense, and Rock testified as
well. Rock said that she had met the defendant several months
before the incident. They developed a friendship; the
relationship evolved as "boyfriend-girlfriend"; and
they began dating. Although they were exclusive to one
another, they did not live together. Rock testified that they
"got along beautifully. Great friends." The
defendant agreed that they had a "[f]riendship at first
and then boyfriend-girlfriend, " and he described the
relationship as "awesome, " "great, " and
"probably the best." Rock acknowledged that their
dating ("boyfriend-girlfriend") relationship did
not end immediately after the incident.
also was other evidence about the defendant's
relationship with Rock. The defendant had cared for Rock
while she was recovering from a medical issue; he
"nursed her back" to health. He also drove her
motor vehicle. On the day in question, they spent "a
good part of the day" together, first at her home, and
then doing errands. The altercation for which the defendant
was charged was, according to the defendant, brought on by
Rock accidentally calling him by her former boy friend's
name. Rock also insisted, both to the witness and to the
police officer, that there was no problem between her and the
defendant, and "beg[ged] them" not to arrest the
defendant claims that the evidence was insufficient to
support a conviction under G. L. c. 265, § 13M.
Subsection (a.) of the statute provides:
"Whoever commits an assault or assault and battery on a
family or household member shall be ...