Heard: June 4, 2018
received and sworn to in the Northampton Division of the
District Court Department on January 17, 2017.
case was heard by William J. O'Grady, J.
Mac Veety for the defendant.
Weiner, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Wendlandt, & Englander, JJ.
case, we apply the three-part framework for the parental
privilege defense as set forth in Commonwealth v.
Dorvil, 472 Mass. 1, 12-13 (2015) . Following a
jury-waived trial, the defendant, Michael C. Rosa, was
convicted of assault and battery by means of a dangerous
weapon (shod foot) against his five year old
daughter. On appeal, the defendant argues that the
Commonwealth presented insufficient evidence either to
disprove his parental privilege defense beyond a reasonable
doubt, or to prove that his shod foot qualified as a
dangerous weapon. We affirm.
recite the facts as the judge could have found them, drawing
all reasonable inferences in the light most favorable to the
Commonwealth. See Id. at 3. On the morning of
January 17, 2017, the defendant was walking with his five
year old daughter and two year old son in downtown
Northampton. As they headed to a local CVS store, according
to the defendant, his daughter ran ahead and entered the
store without him. According to a CVS employee, the defendant
entered the store with only one of his children, but it is
unclear from her testimony whether the other child entered
after the defendant or before.
event, the CVS employee testified that the first thing she
remembered upon their entry into the store was the children
running around the store and the defendant cursing and
yelling at his daughter. The defendant's daughter was
laughing and hiding from the defendant. While walking through
the store, the defendant continued to yell obscenities at his
daughter. Eventually, the defendant's daughter, laughing,
headed toward the store's front exit, where she
encountered a CVS employee who said, "Whoa, hold
on." The employee asked her what she was doing, and she
responded, still laughing, that she was hiding from her
approximately fifteen minutes in the store, the defendant
stopped at a refrigerated case and picked up a bottle of iced
coffee. While the defendant waited in line to pay, he saw his
daughter by the front doors, hiding near the metal detectors.
He did not pursue her, and she approached him. The subsequent
interaction between the defendant and his daughter was
captured by a video surveillance recording, and was also
described at trial by the CVS employee.
surveillance video footage and testimony of the CVS employee
demonstrate that the defendant's daughter approached him
and grabbed his legs. He shoved her in her chest with his
hand, causing her to take a step or two to regain her
balance. She then attempted to cling to his lower legs with
her arms, and he once again shoved her away, this time
causing her to step back two or three steps before falling
down onto her buttocks; she immediately got back up.
According to the CVS employee's testimony, the daughter
reacted to this pushing in a playful manner but showed signs
of becoming agitated.
defendant then approached the counter to pay for his coffee.
The CVS employee testified that, at this point, the defendant
warned his daughter to stay away from him, telling her,
"[G]et the fuck away from me. Trust me, you don't
want to fucking be near me right now." His daughter came
toward him again. In response, the defendant lifted his foot
and kicked his daughter in the chest, knocking her to the
ground and causing her and her brother to cry briefly.
surveillance video shows that in response to the kick, the
daughter stepped back, lost her balance, fell onto her bottom
again, and remained there for approximately two seconds.
After getting up, the daughter meandered around the area of
the cash register as the defendant finished his purchase, at
which point she left the store with the defendant and her
employee called the police to report the incident, and two
police officers stopped the defendant shortly thereafter.
During the stop, Northampton police officer Brent Dzialo
separated the defendant from his children and asked him why
he had kicked his daughter in the chest. The defendant
answered, "I don't raise pussies." The
defendant acknowledged that he had used his foot to make
contact with her chest and push her down but denied kicking
her. Dzialo described the defendant's footwear (which was
admitted in evidence) as "snow boot style
boots/shoes." Dzialo also testified that the
defendant's daughter did not have any red marks,
scratches, bruises, or other visible injuries, and therefore,
he did not seek medical attention for her.
time of the incident, the defendant was approximately five
feet, six inches tall, and weighed three hundred pounds. His
daughter was approximately three feet tall, and weighed less
than fifty pounds.
defense at trial was that the defendant's conduct was
protected by the parental privilege defense. The defendant
denied kicking his daughter, claiming that he only
"nudged" her. He stated that he was concerned about
his "daughter getting kidnapped, missing." On
cross-examination, he asserted that he had "tried to use
other methods that didn't work," and that he
"realized that the only way to get my daughter to stay
by my side was to use a little reverse psychology."
Later, however, he admitted that by the time he kicked her,
he "wasn't in fear that she was going to be
kidnapped," and he did not even "want her close by
[to him]." Finally, he claimed that his comment to
Dzialo -- that he kicked his daughter because "I
don't raise pussies" -- was meant to convey that he
did not want to raise his children to be victims of bullying.
judge found the defendant guilty of assault and battery by
means of a dangerous weapon, expressly crediting the CVS
employee's testimony that the defendant "kicked
[his] child in the chest," and rejecting the