Opinion
18-P-1686
01-29-2020
COMMONWEALTH v. Gabrielle SIMMONS-GOMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant, Gabrielle Simmons-Gomes, was convicted of disturbing the peace and assault and battery. See G. L. c. 272, § 53 ; G. L. c. 265, § 13A. On appeal, the defendant contends that the judge erred when he denied her motions for a required finding of not guilty. We affirm.
Background. We state the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) ; Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 404 (2009). On July 7, 2016, Boston Police Officers Sean Daniely and Edwin Lopez were patrolling the downtown Boston area on foot when they witnessed a man trespassing at 10 Winter Place shortly before 5 P . M . The man fled when the officers approached. About fifteen minutes later, the officers saw him near 151 Tremont Street. They approached the man and arrested him.
Officer Daniely testified that when they began to make the arrest, the defendant began yelling, flailing her arms, and telling them, "Leave him alone. He didn't do anything." She continued to yell for about three to five minutes. During this time, people on the sidewalk and in a nearby pizza shop stopped and stared at the defendant. The officers told the defendant to stop, but she became progressively louder.
The officers arrested the defendant for disturbing the peace. Once the defendant was in handcuffs, Officer Daniely began to make a video recording of the interaction. He testified that just before he began to record the arrest, the defendant claimed that she was going to say that the officers had raped her.
The defendant gave a radically different version of events. She testified that the officers made disparaging comments to the effect that she had "three baby daddies" and was on welfare in the moments before the recording began, and that she engaged in no wrongdoing. It was for the finder of fact to resolve these issues of credibility. See Commonwealth v. Norris, 483 Mass. 681, 685-686 (2019).
Officer Lopez testified that, while the defendant was in handcuffs, she began to pull away from him, at which point he had to pull her close and take control of her forearm to prevent her from fleeing. Officer Lopez then stated that the defendant reached back and grabbed his groin and applied enough pressure to cause him pain. Officer Daniely saw him react.
Discussion. In reviewing the denial of the defendant's motions for required finding, we determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to permit a rational trier of fact to find the existence of the elements of each offense beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. at 676-677.
1. Disturbing the peace. A two-part test is used to determine whether a defendant's conduct constitutes the common-law offense of disturbing the peace. See Commonwealth v. Orlando, 371 Mass. 732, 734-735 (1977). The Commonwealth must show that the defendant engaged in "activities which, first, most people would find to be unreasonably disruptive, and second, did in fact infringe someone's right to be undisturbed." Id. at 735.
A rational fact finder could find that flailing and shouting for an extended period of time at 5 P . M . in a heavily trafficked commercial area was an "unreasonable disruption." Hokanson, 74 Mass. App. Ct. at 405-406 (average bystander would have found defendant's "flailing" and "shouting" in area with heavy foot traffic "unreasonably disruptive"). Bystanders stopped and the officers saw people in a nearby pizza shop "with their jaws down to the ground, down to the floor, just staring at what was going on right outside the window." See Commonwealth v. Federico, 70 Mass. App. Ct. 711, 714-715 (2007) (discussing relevance of time and place in assessing sufficiency of evidence). The evidence was sufficient.
2. Assault and battery. The defendant also contends that there was insufficient evidence of assault and battery, that is, "the intentional and unjustified use of force upon the person of another, however slight." Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931). Although the defendant testified that she had not grabbed the officer and that any touching was accidental, and urges us to so conclude on appeal, we review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Chonga, 94 Mass. App. Ct. 385, 385 (2018). So viewed, the defendant grabbed and squeezed the officer's groin hard enough to caused him pain. The evidence was sufficient to support the conviction. Id. at 388 (evidence that husband grabbed wife's arm sufficient to support conviction of assault and battery).
Although a portion of the encounter was captured on the video recording, the angle at which the video was taken did not provide a clear view of what occurred. The judge could have found that there was nothing in the recording that contradicted the officer's testimony regarding the assault and battery.
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Judgments affirmed.