Opinion
11-P-2131
12-13-2012
COMMONWEALTH v. JOSE ECHAVARRIA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of resisting arrest in violation of G. L. c. 268, § 32B. On appeal, he claims that the evidence was insufficient to support his conviction. We affirm.
The defendant was acquitted of assault and battery on a police officer. Charges of malicious destruction of property, disorderly conduct, and trespass were dismissed for failure to prosecute.
In the light most favorable to the Commonwealth, the evidence showed the defendant fleeing from the scene where property had been damaged. A uniformed officer gave chase, and was soon joined by two plainclothes officers wearing visible neck badges. During the chase, the officers yelled, 'Police,' numerous times while the defendant continued to flee. At one point during the chase, one of the plainclothes officers attempted to grab the defendant, but failed when the defendant struck the officer and caused the officer to fall to the ground. When the defendant slipped, the uniformed officer tackled him to the ground. While he was on the ground, the defendant struggled with the uniformed and plainclothes officers as they attempted to place him under arrest. The defendant would not submit, but rather, kept pushing, shoving and striking the officers. At one point, the defendant threw one of the officers to the ground. After approximately ninety seconds of physically resisting the attempts to handcuff him, the defendant was placed under arrest. '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." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting from G. L. c. 268, § 32B(a), inserted by St. 1995, c. 276. The defendant claims that because the first officer did not originally intend to arrest the defendant, but only wanted to inquire about the damaged property, and it was not reasonable for the defendant to have known he was under arrest, the evidence was insufficient to support his conviction. We disagree.
Here, although the officer originally intended to merely question the defendant, that intent changed when the defendant began his assaults on the officers, causing them to fall or be thrown to the ground, and when he struggled with four officers for ninety seconds while they attempted to handcuff him. In these circumstances, it was a reasonable inference for the jury to conclude there was an intent to arrest the defendant. See Commonwealth v. Limone, 460 Mass. 834, 839 (2011) ('[I]t is not required that the officer use the word 'arrest' to communicate his intent,' so long as the officer gives 'some indication that the interaction has advanced from a mere investigation into an arrest'). Furthermore, based on the totality of the facts unfolding and introduced as evidence at trial, a reasonable person in the defendant's circumstances would have understood that the officer intended to place the defendant under arrest and that the defendant clearly was resisting arrest. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 34-37 (2012).
To the extent the defendant claims that the evidence of self-defense rendered the evidence of resisting arrest insufficient, he is mistaken. The jury were not required to credit any of the evidence, including the defendant's testimony, that supported his claim that he acted in self-defense. See Commonwealth v. Gomez, 450 Mass. 704, 710-711 (2008) (the 'weight and credibility of the evidence is the province of the jury').
--------
Judgment affirmed.
By the Court (Meade, Sikora & Carhart, JJ.),