COMMONWEALTH v. ROMERO (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, the defendant, Aura Romero, was convicted of assault and battery on a family or household member. She appeals contending the evidence was insufficient.² We affirm.

In order to sustain a conviction for assault and battery on a family or household member, the Commonwealth must prove, beyond a reasonable doubt, that the defendant intentionally touched a member of her family with some amount of force or without justification. See G. L. c. 265, § 13M (a); Commonwealth v. Dustin, 476 Mass. 1003, 1004 (2016). Cf. Commonwealth v. Burke, 390 Mass. 480, 481-482 (1983) (where statute does not define term “assault and battery” “we presume that the Legislature intended to incorporate the common law definition”). Here the evidence more than sufficed. Viewing the evidence in the light most favorable to the Commonwealth, the judge, as fact finder, could have found the following. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). On February 2, 2019, at approximately 10 p.m., the defendant returned home where her husband, the victim, was in bed. The defendant had been drinking; the victim was concerned that the defendant would try to leave the home with their eight year old child. As the defendant's anger increased, the victim began recording with his cellular telephone. The video recording, which was introduced at the trial, shows the defendant slapping the victim in the face as she knocked the telephone out of his hands. The defendant also hit the victim after covering her fist with a towel. The video recording shows a mark on the victim's eye.

To the extent that the defendant complains that the judge erred in finding the victim to be more credible, this argument fails. It is the fact finder's job to assess the credibility of the evidence and determine the weight to give to that testimony.³ See Commonwealth v. Tavares, 484 Mass. 650, 656 (2020) (“it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province” [citation omitted]). The Commonwealth's case did not deteriorate where the defendant's evidence at trial -- her testimony and that of her adult daughter -- turned solely on the credibility of these witnesses. See Commonwealth v. Barbosa, 477 Mass. 658, 666 (2017) (to “the extent that conflicting inferences may be drawn from the evidence, it is for the [fact finder] to decide which version to credit” [citation omitted]). Moreover, the victim's testimony was corroborated by the video recording.

Judgment affirmed.

FOOTNOTES

2.   The defendant moved for a required finding of not guilty at the close of the Commonwealth's case, but not at the close of all evidence. See Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001) (we review claim of insufficient evidence for substantial risk of miscarriage of justice when defendant fails to move for required finding).

3.   Although the defendant includes in her brief details about interactions between the defendant and the victim subsequent to this incident, these allegations are not before us, and therefore we do not consider them.