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Commonwealth v. Dustin

Supreme Judicial Court of Massachusetts

November 23, 2016

COMMONWEALTH
v.
DONALD DUSTIN.

          Assault and Battery. Words, "Substantive dating relationship."

          Michael A. Waryasz for the defendant.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Max Bauer, for Tyrone Stampley, amicus curiae, submitted a brief.

         After a 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.) -[1] We granted the defendant's application for direct appellate review to consider the "substantive dating relationship" element of § 13M (a.) .[2] We affirm.

          1. Timing of the defendant's motion.

          The 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.[3] 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."[4] 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 conviction.

         2. Factual background.

         A 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.

         The 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.

         There 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.

         3. Discussion.

         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 ...

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