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Appeals Court of Massachusetts.



Decided: April 29, 2021

By the Court (Wolohojian, Englander & Hand, JJ.1)


After a jury-waived trial in the District Court, the defendant was convicted of one count of assault and battery on a family or household member, G. L. c. 265, § 13M (a). Concluding that the judge acted within his discretion in limiting the defendant's ability to cross-examine the victim about her mental health, and that the evidence was sufficient to establish that the victim was a “family or household member” for the purposes of G. L. c. 265, § 13M (a), we affirm.

Discussion. 1. Evidence of victim's mental health symptoms. As was his right, the defendant did not put on any evidence at the trial, relying instead on his cross-examination of the two prosecution witnesses. Questioning the victim, defense counsel asked her whether she suffered from “bipolar” or “any mental health issues”; the judge sustained the Commonwealth's objection to each question. To the extent that we can discern the basis of the judge's ruling from the transcript in the record,2 it appears to have been his conclusion that even if the victim had been diagnosed with bipolar disorder, expert testimony would have been required to establish that any such diagnosis resulted in impairment to the victim's ability to “see, perceive[,] and remember.” We agree, and conclude that in sustaining the Commonwealth's objection to this line of questioning, the judge did not abuse his “broad discretion to determine the scope and extent of cross-examination.”3 Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). Neither the symptoms of bipolar disorder nor the circumstances, if any, under which such a diagnosis would affect the sufferer's competence as a witness are the subject of common knowledge. See Commonwealth v. White, 329 Mass. 51, 53 (1952). In the absence of expert testimony on those points, the defendant failed to demonstrate that the victim's diagnosis with a mental health condition would have been relevant. See Mass. G. Evid. § 401 (2021).

2. Sufficiency of the evidence of “family or household member.” For the purposes of G. L. c. 265, § 13M, the term “ ‘family or household member’ shall mean persons who (i) are or were married to one another, (ii) have a child in common regardless of whether they have ever married or lived together or (iii) are or have been in a substantive dating or engagement relationship.” G. L. c. 265, § 13M (c). In assessing whether a given relationship is “substantive,” “the trier of fact shall ․ [consider] the following factors: the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship.”4 G. L. c. 265, § 13M (c) (iii).

While a close question, we conclude that under the generous standard established in Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), the evidence here was sufficient to establish that the defendant and the victim were in a “substantive dating relationship” at the time of the defendant's attack. At the time of the events at issue here, the defendant and the victim had been dating for seven or eight months. See Commonwealth v. Dustin, 476 Mass. 1003, 1005-1006 (2016) (victim's relationship of “several months” with defendant some evidence of “substantive dating relationship,” although defendant and victim not living together). At trial, the victim conceded that later in the evening on the day of the attack, she went with the defendant to a club, had “a normal night out,” and then went back to her home where the defendant spent the night and the remainder of the weekend. From this evidence, the judge could have inferred that the victim and the defendant routinely saw one another and spent nights together.5 Based on the defendant's statement that he thought that “[the victim] was mad because [the defendant] was f'ing somebody else,” and that her “forgiv[ing] him” would allow “[the defendant and the victim to] make it through anything,” the judge could have concluded that the victim and the defendant were in what was an intimate and, for the victim, at least, an exclusive relationship. See Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184-185 (1994) (evidence of defendant's intimate relationship with victim and of “emotional relationship which entailed substantially more than a few casual dates” supported existence of “substantive dating relationship”). Additionally, although there were indications that the relationship had involved temporary breakups and reconciliations before the June 29, 2018, incident at issue in this case, the victim and the defendant were still engaged in their months-long relationship as of that date.

Finally, the victim testified that after this incident, she obtained “a restraining order.” Given that the § 13M (c) (iii) “factors are essentially identical to the factors set forth in G. L. c. 209A to determine whether a ‘substantive dating relationship’ exists[,]” Dustin, 476 Mass. at 1005, the judge could have considered the issuance of the order as some evidence of the parties' relationship here. See Commonwealth v. Robertson, 408 Mass. 747, 751 (1990) (evidence of prior bad acts admissible to portray full nature of relationship between defendant and victim).

In its totality, this evidence was sufficient under Latimore, 378 Mass. at 677-678, to establish that the victim and the defendant were “in a substantive dating ․ relationship” that satisfied the statutory definition of “family or household member.”

Judgment affirmed.


2.   We note that our assessment of the defendant's argument is made more difficult by the fact that we lack a clear transcript of critical parts of the sidebar discussion concerning the admissibility of the evidence at issue. Although parts of the recording were “indiscernible” to the transcriptionist, it does not appear that the defendant has made any attempt to reconstruct the record. See Mass. R. A. P. 8 (e) (3), as appearing in 481 Mass. 1611 (2019).

3.   On this record, the question to the victim about her diagnoses was also objectionable as lacking proper foundation and on hearsay grounds. As we conclude that the alternative basis on which the judge appears to have relied was valid, however, we do not address the other possible grounds on which the objections could properly have been sustained.

4.   These factors “are not themselves elements of the offense. There does not need to be evidence as to each factor, let alone proof beyond a reasonable doubt as to any one or more of them.” Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7 (2016). “It is enough that the evidence on these factors, taken as a whole, warrants a finding of a substantive dating relationship beyond a reasonable doubt.” Id.

5.   In reaching this conclusion, we do not overlook the evidence suggesting that in this instance, the defendant's staying at the victim's house was part of an effort to control her ability to report his earlier conduct.

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