Commonwealth v. Sylvia , 87 Mass. App. Ct. 340 ( 2015 )


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    14-P-364                                                Appeals Court
    COMMONWEALTH    vs.   MICHAEL SYLVIA.
    No. 14-P-364.
    Bristol.       January 9, 2015. - May 5, 2015.
    Present:    Katzmann, Sullivan, & Blake, JJ.
    Arrest. Resisting Arrest.      Practice, Criminal, Required
    finding.
    Indictment found and returned in the Superior Court
    Department on October 26, 2012.
    The case was tried before Robert J. Kane, J.
    Thomas C. Foley for the defendant.
    Corey T. Mastin, Assistant District Attorney, for the
    Commonwealth.
    KATZMANN, J.      Having been convicted by a Superior Court
    jury of resisting arrest, the defendant appeals.        He contends
    that the evidence was insufficient to support a conviction under
    the second prong of the resisting arrest statute, "using any
    other means which creates a substantial risk of causing bodily
    2
    injury to such police officer or another."   G. L. c. 268,
    § 32B(a)(2), inserted by St. 1995, c. 276.   We affirm.
    Background.    Under the familiar standard, on appeal the
    evidence is viewed in the light most favorable to the
    Commonwealth to determine whether "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) (citation omitted).
    Here, the analysis begins when Officer Kenneth Mendes
    advised the defendant that he was subject to arrest, and
    continues through the defendant's flight and physical resistance
    to the officer's efforts to place the defendant into physical
    custody.   The officer first made contact with the defendant, for
    whom he had an arrest warrant, when, while patrolling in a
    cruiser with his partner in a high crime area, he noticed the
    defendant walking on a New Bedford street shortly before 2 A.M.
    The officer exited the cruiser and told the defendant that he
    had lawful authority to place him under arrest.   The defendant,
    saying "no" and shaking his head in a manner understood by the
    officer to mean "no," fled on foot.   The officer observed the
    defendant continuously hold the waistband of his pants with one
    hand as he fled.   Seeking to immobilize the defendant, the
    3
    officer, while chasing him, deployed his "Taser"1 to no effect.
    Eventually, the officer was able to grab onto the defendant's
    shoulder and jacket, but the defendant was able to turn and
    shuck the jacket.      The foot pursuit continued, as the defendant
    maintained his hold on the waistband of his pants, through a
    parking lot and onto a public roadway under construction.      There
    was no asphalt on the roadway.      The conditions of the roadway
    included excavated dirt, steel plates, compacted dirt, and other
    construction site objects, such as barrels.      As the defendant
    ran across the public roadway, he threw a metal object onto the
    street.2      The defendant continued to flee but no longer held the
    waistband of his pants.      He ran onto the sidewalk, crossed the
    public roadway again, and went into the aforementioned parking
    lot.       The officer was able to catch the fatigued defendant and
    put him on the ground.      On the ground, the officer attempted to
    roll the defendant onto his stomach to apply handcuffs, but the
    defendant repeatedly pulled his arms away and moved his hands.
    As the "struggle" continued and the defendant continued pulling
    away, the officer successfully deployed his Taser to gain the
    1
    The term Taser is "used for a gun that fires electrified
    darts to stun and immobilize a person." Merriam-Webster's
    Collegiate Dictionary 1279 (11th ed. 2005).
    2
    A firearm was retrieved where the officer had observed the
    defendant throw a metallic object. It was tested for
    fingerprints but no usable prints were found. The defendant was
    acquitted by the jury of possession of a firearm without a
    firearm identification card.
    4
    defendant's compliance.   The officer was then able to place
    handcuffs on the defendant.
    Discussion.   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 bodily injury to such police officer or another."    G. L.
    c. 268, § 32B(a), inserted by St. 1995, c. 276.   The defendant
    concedes that his use of physical force would satisfy the
    elements of resisting arrest under G. L. c. 268, § 32B(a)(1).
    However, in his jury charge -- which did not draw objection from
    either the Commonwealth or the defendant -- the judge restricted
    the Commonwealth to proof of resistance "by using means which
    created a substantial risk of causing bodily injury to Officer
    Mendes."   As the Commonwealth acknowledges, its proof must have
    been sufficient to sustain a conviction on the theory of
    liability on which the case was submitted to the jury.    See
    Commonwealth v. Rodriguez, 
    58 Mass. App. Ct. 610
    , 621 (2003).
    We thus examine the sufficiency of the evidence under G. L.
    c. 268, § 32B(a)(2).
    The focus of prong two of the resisting arrest statute is
    on "criminalizing the 'creation' of the risk" (emphasis
    5
    supplied).   Commonwealth v. Montoya, 
    457 Mass. 102
    , 105 (2010).
    In assessing the sufficiency of the evidence, the analysis is
    not a static dissection of factors in isolation but an
    evaluation informed by the dynamic fullness of the totality of
    the circumstances.   Here, that totality encompasses the rapidly
    evolving, uncertain, and tense environment of foot pursuit.      To
    be sure, flight from arrest, alone, does not create a
    substantial risk of bodily injury to the arresting officer or
    another.   See 
    id. at 104
    & n.4.   However, the circumstances of
    flight from arrest can create such a risk.    
    Id. at 104-105.
    Here, the defendant had been told that he was going to be
    arrested, and his ensuing actions and flight were clearly in
    response to that communication.    Contrast Commonwealth v. Grant,
    
    71 Mass. App. Ct. 205
    , 209 (2008) ("During the defendant's
    flight from the police, there was no evidence to prove that he
    understood that the officers were effecting an arrest.   He was
    simply running away from them").   The defendant twice led the
    pursuing officer in the late night darkness onto a dug-up,
    public roadway under construction with various terrain and
    object obstacles that posed a substantial risk of injury.3
    Moreover, motor vehicles could have been traveling on that
    3
    Indeed, when the officer's partner sought to drive the
    cruiser to cut off the fleeing defendant's pathway, the cruiser
    slid on the gravel and steel plates on the dug-up road, hitting
    the brick facade of a café.
    6
    roadway, to the danger of the officer in hot pursuit.    That no
    pedestrians or vehicles were observed at 2 A.M. does not mean
    that there was no substantial risk of bodily injury from
    potential traffic on a street that is ordinarily busy during
    daytime and nighttime hours.   See Commonwealth v. Montoya, supra
    at 105-106 (even where pursuing officers chose not to scale a
    fence and jump twenty feet into shallow water, that they did not
    actively subject themselves to risk did not defeat a finding of
    "substantial risk of bodily injury").
    Furthermore, "conduct . . . [that] represents an active,
    physical refusal to submit to the authority of the arresting
    officers, and opposition to their efforts to effect the arrest,"
    constitutes circumstances that can create a substantial risk of
    injury to the arresting officer.   Commonwealth v. Maylott, 
    65 Mass. App. Ct. 466
    , 469-470 (2006).     "While the defendant's
    exertion of force in an attempt to prevent his arrest may not
    have overcome the police officers, the circumstances . . .
    presented a substantial risk of injury to them."     
    Ibid. In Commonwealth v.
    Grandison, 
    433 Mass. 135
    , 144-145 (2001), the
    defendant stiffened and pulled his arms free as the officers
    were attempting to handcuff him.   The defendant's action in
    Grandison, "especially at the moment he freed his arm," was
    sufficient for a rational trier of fact to conclude that the
    defendant by "any other means . . . created a substantial risk
    7
    of causing bodily injury to the police officers."    
    Id. at 145
    (quotations omitted).    See Commonwealth v. Lender, 66 Mass. App.
    Ct. 303, 306 (2006) ("The defendant's resistance to being
    handcuffed and placed in the cruiser is sufficient resistance to
    amount to . . . a means creating a substantial risk of causing
    bodily injury to the arresting officer" [quotations omitted]).
    Here, the first time the officer caught up with the defendant,
    the officer grabbed onto the jacket worn by the defendant and a
    "scuffle" ensued, during which the defendant evaded the
    officer's effort to effect an arrest, as the defendant turned
    and "wiggled out" of the jacket.    The second time the officer
    caught up with the defendant, they were on the ground and there
    was a "struggle" to gain control of the defendant's arms as he
    "kept pulling away" from the officer.    Here, as in Commonwealth
    v. Grandison, supra at 144-145, the officer's "characterization
    of the defendant's behavior as 'resisting' or 'struggling'" is
    not mere opinion but grounded in the evidentiary narrative.       It
    was only after the officer deployed the Taser that he was able
    to overcome the defendant's "resistance" and place handcuffs on
    him.
    We conclude that a rational trier of fact could have found
    the defendant's conduct presented a substantial risk of bodily
    injury to the officer.
    Judgment affirmed.
    

Document Info

Docket Number: AC 14-P-364

Citation Numbers: 87 Mass. App. Ct. 340

Filed Date: 5/5/2015

Precedential Status: Precedential

Modified Date: 1/12/2023