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Commonwealth v. Rosa

Appeals Court of Massachusetts, Hampshire

November 9, 2018


          Heard: June 4, 2018

         Complaint received and sworn to in the Northampton Division of the District Court Department on January 17, 2017.

         The case was heard by William J. O'Grady, J.

          Glynis Mac Veety for the defendant.

          Caleb Weiner, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Wendlandt, & Englander, JJ.

          WENDLANDT, J.

         In this 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.[1] 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.


         We 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.

         In any 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 father.

         After 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.

         The 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.

         The 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.

         The 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 brother.

         The CVS 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.

         At the 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.

         The 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.

         The 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 ...

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