Commonwealth v. Fotios Efthimiadis. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1136
COMMONWEALTH
vs.
FOTIOS EFTHIMIADIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Fotios Efthimiadis, appeals from his
convictions, after a jury-waived trial in the District Court, of
resisting arrest, G. L. c. 268, § 32B, and threatening to commit
a crime, G. L. c. 275, § 2. 1 Concluding that there was
sufficient evidence to support both convictions, we affirm.
1. Standard of review. "When reviewing the denial of a
motion for a required finding of not guilty, 'we consider the
evidence introduced at trial in the light most favorable to the
Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
1The judge acquitted the defendant of assault and battery
by means of a dangerous weapon and assault by means of a
dangerous weapon.
reasonable doubt.'" Commonwealth v. Quinones, 95 Mass. App. Ct.
156, 162 (2019), quoting Commonwealth v. Faherty, 93 Mass. App.
Ct. 129, 133 (2018). "[T]he evidence relied on to establish a
defendant's guilt may be entirely circumstantial," Commonwealth
v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227(2019), and "[t]he inferences that support a conviction 'need
only be reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Wheeler, 102 Mass. App. Ct. 411,
413 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377,
378 (2017).
2. Resisting arrest. "A defendant resists arrest if 'he
knowingly prevents or attempts to prevent a police officer,
acting under color of his official authority, from effecting an
arrest of the actor or another, by (1) using or threatening to
use physical force or violence against the police officer or
another; or (2) using any other means which creates a
substantial risk of causing serious bodily injury to such police
officer or another.'" Commonwealth v. Sylvia, 87 Mass. App. Ct.
340, 341-342 (2015), quoting G. L. c. 268, § 32B (a). Here, the
police officer testified that, after he tackled the defendant
and tried to place him in handcuffs, the defendant "was violent,
hostile" and "was just thrashing." "He continually dropped his
weight when we were in the stairwell . . . trying to knock us
off balance, thrash around, refuse to go into the cruiser."
2
Based on this evidence, the judge could rationally find both
that the defendant used physical force against the officers and
created a substantial risk of serious bodily injury by trying to
knock the officers off balance on a stairwell. See Commonwealth
v. Manolo M., 103 Mass. App. Ct. 614, 625 (2023) (sufficient
evidence of physical force where defendant pulled away while
officer was trying to handcuff her); Commonwealth v. Sylvia, 87
Mass. App. Ct. 340, 343 (2015) (sufficient evidence of risk of
serious bodily injury where defendant engaged in "scuffle" and
"struggle" with officers).
Similarly, the judge could rationally find that the
defendant understood he was under arrest. In this regard,
"[t]he standard for determining whether a defendant understood
that he was being arrested is objective -- whether a reasonable
person in the defendant's circumstances would have so
understood." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208
(2008). "It is not necessary that officers use the word
'arrest.'" Commonwealth v. Portee, 82 Mass. App. Ct. 829, 833
(2012). Here, the defendant's acts of resistance began after
the police officer had tackled him and was trying to place him
in handcuffs and continued while the officer was trying to bring
him to the cruiser. The judge could rationally find that a
reasonable person in those circumstances would understand he was
being arrested. See Commonwealth v. Soun, 82 Mass. App. Ct. 32,
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37 (2012). Contrast Grant, supra at 209 (no evidence defendant
understood he was under arrest where police merely chased him
and "neither their words nor their actions had objectively
communicated that intention"). Even if the defendant's
intoxication is relevant to this objective determination,
testimony that the defendant "appeared" drunk did not require
the judge to find that the defendant was so drunk that he could
not understand that being tackled, handcuffed, and transported
to a police cruiser meant that he was being arrested. 2 Cf.
Commonwealth v. Lennon, 463 Mass. 520, 523 (2012) ("A jury
instruction on voluntary intoxication is required only where
there is evidence of 'debilitating intoxication' that could
support a reasonable doubt as to the defendant's ability to form
the requisite criminal intent").
It is, of course, true that a person is privileged to use
force to resist an arrest where the arresting officer uses
excessive force. See Commonwealth v. Graham, 62 Mass. App. Ct.
642, 652 (2004). The Commonwealth may disprove this defense by,
among other things, proving "that the arresting officer did not
use excessive or unnecessary force in making the arrest."
2 Contrary to the defendant's suggestion, the judge did not
find that booking was delayed until the next morning because of
the defendant's intoxication. The judge merely noted that the
defendant was drunk. Furthermore, the officer testified that he
did not make the decision to delay booking but that he thought
the delay was because of several factors.
4
Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012),
quoting Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 452
(2005). Here, the officer testified that he tackled a fleeing
suspect and did not describe the use of any further force other
than the force necessary to handcuff the defendant and transport
him. The judge could rationally find that the officer did not
use excessive force.
3. Threats. To constitute a criminal threat, the
statement must be "an expression of intention to inflict a crime
on another and an ability to do so in circumstances that would
justify apprehension on the part of the recipient of the
threat." Commonwealth v. Melton, 77 Mass. App. Ct. 552, 557-558
(2010), quoting Commonwealth v. Kerns, 449 Mass. 641, 653
(2007). Here, the officer testified that the defendant told the
officer "he's going to get me" and that the officer would not
"see it coming." Additionally, the defendant "alluded to the
police chief in Randolph dying and how somehow he was involved
in that and that he's going to do the same to [the officer] and
[his] family." The mere fact that the defendant was under
arrest did not eliminate the reasonableness of fearing that the
defendant would follow through on these threats once released.
See Commonwealth v. Milo M., 433 Mass. 149, 156 (2001), quoting
Commonwealth v. Sholley, 48 Mass. App. Ct. 495, 499, S.C., 432
Mass. 721 (2000), cert. denied, 532 U.S. 980 (2001) ("although
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there is no evidence that the juvenile possessed an immediate
ability to carry out the threat at the time he communicated the
drawing to Mrs. F, this does 'not mean that [the juvenile] could
not have carried out his threat at a later time'").
Furthermore, as explored above, the testimony that the defendant
"appeared" drunk and the equivocal testimony about booking did
not require the judge to conclude that the defendant was so
drunk that his threats had to be disregarded. The judge
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rationally found that the defendant committed the crime of
threatening to commit a crime. 3
Judgments affirmed.
By the Court (Shin, Ditkoff &
Brennan, JJ. 4),
Clerk
Entered: October 16, 2024.
3 To the extent that the defendant did not withdraw his
criminal responsibility argument in his reply brief, such a
defense is supposed to be raised well prior to trial, not for
the first time on appeal. See Mass. R. Crim. P. 14 (b) (2) (A),
as appearing in 463 Mass. 1501 (2012). In any event, the
defense of lack of criminal responsibility is unavailable to a
defendant "if the lack of substantial capacity did not result
from a mental disease or defect but derived solely from another
source, such as voluntary intoxication." Commonwealth v.
Dunphe, 485 Mass. 871, 879 (2020).
4 The panelists are listed in order of seniority.
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