COMMONWEALTH v. CARDOSO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, the defendant, Octavio Cardoso, was convicted of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M (a). He appeals, arguing there was insufficient evidence to support his conviction. We affirm.

1. Background. The judge heard the following evidence. The defendant and the victim were married and they had two children; the defendant had full custody of the children pursuant to an order of the Probate and Family Court.³ Approximately one month before the incident in question, the defendant had filed for divorce and obtained a restraining order against the victim, ordering her to vacate the marital home. See G. L. c. 209A. That order lapsed as of August 24, 2017.

On that day, the victim and the defendant were in Probate and Family Court for divorce proceedings. The victim sought an order that would permit her to return to the marital home; the judge agreed and the victim returned home. When she arrived, she was met by local police officers, who served her with another order the defendant had secured in the District Court. The victim testified that her order had issued “within an hour” of the District Court order and she showed her earlier order to the officers.

The police officers called an emergency “on-call judge,” and the on-call judge “went with [the victim's] order, seeing it was the previous order, and they threw out [the defendant's] restraining order.” This permitted the victim to return to the marital home. The defendant was asked to stay away from the residence; however there was no order directing him to do so.

The victim left the premises for a period of time, and returned at 11:30 p.m. to find the defendant in his truck, in the driveway.⁴ The two began a verbal argument, with both parties in their respective vehicles; however, they both got out of the vehicles at one point. Thereafter, the defendant approached the victim, grabbed her by the left arm, threw her up against the car, and yelled in her face. The two wrestled briefly; the victim testified that the defendant “was trying to make it so I couldn't get into my car.” Eventually, the victim was able to break the defendant's grip, get back into her car, and drive away.

The victim returned to the house five to ten minutes after this incident; she got out of her car, believing the defendant had left. She was mistaken. The defendant was in the driveway “and he was screaming at her.” She tried to get back into her car, but the defendant blocked her. This time, he did not “physically push [her] or anything. He was just blocking [her] from getting into the car.”

When the victim finally got back into her car, she locked the door, and called 911. She also tried to back her car out of the driveway, and the defendant drove his car towards her several times. She testified, “[H]e kept putting his car in reverse pulling forward really fast going towards my car like he was going to hit me, slamming on the brake, backing up.” He did that several times. The police arrived at the residence shortly thereafter, and the defendant was arrested.

At trial, the defendant testified in his own defense, denying that he had hit or touched the victim. The judge, however, credited the victim's testimony and found the defendant guilty, sentencing him to probation for one year and imposing a condition that he complete a batterer's intervention program.

2. Discussion. Sufficiency of the evidence. The defendant argues that the evidence in the record is insufficient to sustain a conviction for assault and battery on a family, or household, member. At trial, he did not move for a required finding of not guilty. “However, findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). Accordingly, we consider “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” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Here, the evidence was sufficient to prove beyond a reasonable doubt that the defendant assaulted and battered a family or household member. A “household or family member” is defined by the statute as, inter alia, “persons who (i) are or were married to one another.” G. L. c. 265, § 13M (c). Although the parties were in the process of getting a divorce, they were married. The victim appropriately was characterized as a “household or family member” under the statute, and the defendant does not contend to the contrary.

The defendant argues that the evidence was insufficient for the trial judge to find that the defendant committed an assault and battery; we disagree. The judge credited the victim's testimony that “[the defendant] grabbed [her] arm. Threw [her] up against the car. Was yelling in [her] face.” See Commonwealth v. Dorvil, 472 Mass. 1, 6 (2015), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931) (“An assault and battery is the intentional and unjustified use of force upon the person of another, however slight”). The victim's testimony, even uncorroborated, was sufficient to support the conviction, and, as noted, the judge credited that testimony, saying he found it to be “fairly detailed” and without “embellish[ment].” He concluded that the victim's testimony was more credible than that of the defendant.

The defendant challenges the judge's credibility determinations, but we will not “substitute our judgment for that of the judge on credibility questions.” Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012). We are therefore satisfied that there was sufficient evidence from which a rational trier of fact could conclude the defendant committed an assault and battery on the victim. Latimore, 378 Mass. at 677.

Judgment affirmed.

FOOTNOTES

3.   One of the children was not the defendant's biological child; however, the court had awarded him guardianship of her.

4.   The driveway was perhaps a quarter of a mile long, a dirt road leading to two double gates. The victim could not see when she started down the road that the defendant was beyond the gates.