Commonwealth v. Carlos Mora-Acevedo.

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
22-P-636
COMMONWEALTH
vs.
CARLOS MORA-ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
one count of resisting arrest pursuant to G. L. c. 268, § 32B.
On appeal, the defendant contends that (1) there was
insufficient evidence to establish two of the elements of
resisting arrest, and (2) the judge erred by convicting him on
less than proof beyond a reasonable doubt. We affirm.
Discussion. 1. Sufficiency of the evidence. The
defendant claims that there was insufficient evidence to support
his conviction of resisting arrest. In analyzing the
sufficiency of the evidence to support a conviction, the
"question is whether after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319
(1979).
The defendant first asserts that the Commonwealth failed to
adequately prove that he knew the officers intended to arrest
him. We disagree. To sustain a resisting arrest conviction,
the Commonwealth must prove that the defendant "knowingly
prevents or attempts to prevent a police officer, acting under
color of his official authority, from effecting an arrest."
G. L. c. 268, § 32B (a). An arrest is effected when there is
(1) "an actual or constructive seizure or detention of the
person," (2) "performed with the intention to effect an arrest,"
and (3) "so understood by the person detained." Commonwealth v.
Grandison, 433 Mass. 135, 145 (2001). "The 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), citing
Commonwealth v. Cook, 419 Mass. 192, 199 (1994).
Here, two uniformed police officers pulled up beside the
defendant in a marked police cruiser. The officers informed the
defendant that he was the subject of an active arrest warrant.
After the officers ordered him several times to keep his hands
out of his pockets, the defendant fled. The officers pursued
him, repeatedly ordering him to stop and to show his hands, and
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eventually warning him at least twice that he would be tased.
We are satisfied that in these circumstances, a reasonable
person would have understood that he was being arrested. See
Grant, 71 Mass. App. Ct. at 208. The defendant's reliance on
Commonwealth v. Grant is misplaced: in that case, we held that
the evidence of the defendant's understanding was insufficient
because the officers did not speak to him before he fled and did
not tell him during their pursuit that he was being arrested.
See id. at 209-210. Here, the officers immediately informed the
defendant of the warrant for his arrest and repeatedly ordered
him to stop running. See Commonwealth v. Soun, 82 Mass. App.
Ct. 32, 36 (2012) ("police do not need to use the word 'arrest'
in order for there to be an arrest. Other phrases and
situations commonly associated with arrest can create the
required level of understanding" [quotation and citation
omitted]).
The defendant further claims that there was insufficient
evidence that he created a substantial risk of bodily injury to
the arresting officers. Again, we are not persuaded. The
defendant fled at night on a main street with at least some
traffic passing by. At an intersection, he ran into the street
and turned sharply around a parked car into a side street. At
least one car stopped abruptly on the main street as the
defendant ran off the sidewalk. The side street was quiet, but
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the defendant continued running in the middle of it, causing the
officers to do the same. The resisting arrest statute requires
proof that the defendant prevented or attempted to prevent an
arrest by either using or threatening force or violence, or
"using any other means which creates a substantial risk of
causing bodily injury to [the arresting] officer or another."
G. L. c. 268, § 32B (a) (1)-(2). The defendant here did not use
force or violence, so his conviction rested on proof that he
created a substantial risk of bodily injury to the officers or
another person. The defendant argues that his behavior could
not have caused a substantial risk of injury to the officers
because the chase lasted less than one minute and occurred on
the sidewalk and on a quiet side street.
However, the Supreme Judicial Court has emphasized that the
resisting arrest statute "criminaliz[es] the 'creation' of the
risk" (emphasis added). Commonwealth v. Montoya, 457 Mass. 102,
105 (2010). As a result, the officers need not be "actively
subject to the risk," so long as the circumstances expose them
to a substantial danger. See id. Here, the defendant's flight
obliged the arresting officers to pursue him at night, along a
sidewalk, past an intersection where traffic was passing, and
into the middle of a side street. The officers may not have
been in imminent danger, but their pursuit of the defendant
exposed them to the risk of being hit by a car or otherwise
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injured. 1 Indeed, we have previously observed that a substantial
risk of bodily injury existed from potential traffic even where
no pedestrians or vehicles were on the street at the time of a
police pursuit. See Commonwealth v. Sylvia, 87 Mass. App. Ct.
340, 342 (2015). Consequently, in the circumstances of this
case, the Commonwealth's evidence was sufficient to prove the
second element of resisting arrest beyond a reasonable doubt.
Compare Montoya, 457 Mass. at 106 (defendant created substantial
risk that officers could trip or fall when he climbed fence and
jumped into canal); Grandison, 433 Mass. at 144-145 (defendant
created substantial risk that officers could be struck or
injured when he stiffened his arms and pulled his hands away
from handcuffs).
2. Guilty finding. The defendant claims that the judge
improperly considered his criminal record in reaching her
decision to find him guilty. Because the defendant did not
object when the judge announced her findings, we review to
determine whether there was error, and if so, whether that error
created a substantial risk of a miscarriage of justice. See
1 The defendant's flight also caused a car to stop abruptly at
the intersection, suggesting a potential risk to the car's
occupants or other drivers. See G. L. c. 268, § 32B (a) (2)
(defendant resists arrest by creating substantial risk of bodily
injury to officers or "another").
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Commonwealth v. Desiderio, 491 Mass. 809, 815 (2023). We
conclude that there was no error.
The defendant was charged with resisting arrest, G. L.
c. 268, § 32B, and disorderly conduct, G. L. c. 272, § 53. At
trial, at the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty. After hearing
arguments from both the Commonwealth and the defense, the judge
stated that she found "sufficient facts on the resisting." The
judge then heard arguments on the disorderly conduct charge and
announced that she did not find sufficient facts relative to
that charge. The judge also stated again that she found
"sufficient facts on the resisting." When both sides asked if
that meant she found the defendant guilty, the judge asked to
see the defendant's criminal record, explaining that she wanted
to decide whether to find him guilty or continue the case
without a finding. Immediately thereafter, the judge entered a
guilty finding.
The defendant claims that the judge convicted him on less
than proof beyond a reasonable doubt because she reviewed his
criminal record before announcing that she found him guilty.
This claim is unpersuasive. When the judge asked to see the
defendant's record, she did so with a view to potentially
continuing the case without a finding. See G. L. c. 278, § 18.
That disposition was not in fact available to the judge after
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the trial. See Commonwealth v. Norrell, 423 Mass. 725, 727
(1996) ("Mass. R. Crim. P. 28 (a) makes no provision after a
bench trial for disposition by means of a continuance without a
finding, calling instead for a finding of guilty or not
guilty"). Before that point, however, the judge had already
announced her ruling on the disorderly conduct charge, and she
had stated twice that she found sufficient facts relative to the
resisting arrest charge. We can infer that by saying that she
found sufficient facts, the judge meant sufficient facts to find
the defendant guilty of resisting arrest. The judge indicated
that she was deciding between two dispositions: a finding of
guilt or a continuance without a finding. For purposes of a
continuance without a finding, "[a]n admission to sufficient
facts means an admission to facts sufficient to warrant a
finding of guilty" (quotation omitted). See Tirado v. Board of
Appeal on Motor Vehicle Liability Policies & Bonds, 472 Mass.
333, 338 (2015). Therefore, for either disposition, the judge
needed to find that the facts established at trial were
sufficient to prove guilt beyond a reasonable doubt. 2 By stating
twice that she found sufficient facts, the judge indicated that
she had determined the factual issues and decided to find the
2 During the discussion on sentencing, the judge also stated
specifically that she found the defendant guilty beyond a
reasonable doubt.
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defendant guilty before seeing his criminal history. It was
entirely appropriate to consider the defendant's criminal record
for sentencing purposes. See Commonwealth v. Beverly, 485 Mass.
1, 13 (2020).
Judgment affirmed.
By the Court (Wolohojian,
Singh & Hand, JJ. 3),
Clerk
Entered: August 28, 2023.
3 The panelists are listed in order of seniority.
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