NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-534
COMMONWEALTH
vs.
EVALIZ SOTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On February 29, 2024, following a jury-waived trial, a
Boston Municipal Court judge found the defendant guilty of
assault and battery with a dangerous weapon in violation of
G. L. c. 265, § 15A (b), and assault and battery on a family or
household member in violation of G. L. c. 265, § 13M (a).1 The
defendant appeals, contending that the judge erred by denying
her motions for required findings of not guilty for each charge
which were made both at the close of the Commonwealth's case and
renewed at the close of the defendant's case. We affirm.
1The defendant received one year of probation with conditions, namely that the defendant complete an anger management program within the first six months of her probation and submit to a mental health evaluation. Discussion. In reviewing the denial of motions for
required findings of not guilty we review for "whether the
evidence, in its light most favorable to the Commonwealth,
notwithstanding the contrary evidence presented by the
defendant, is sufficient . . . to permit the jury to infer the
existence of the essential elements of the crime charged"
(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). "[T]he evidence and the inferences permitted to
be drawn therefrom must be of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of [guilt]
beyond a reasonable doubt" (quotation and citation omitted).
Id. Because the Commonwealth's case did not deteriorate during
the presentation of the defendant's evidence, we need not
consider separately the defendant's renewed motions for required
findings of not guilty made at the close of all the evidence.
See Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976). See
also Commonwealth v. Dubois, 451 Mass. 20, 28 (2008), quoting
Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006)
("Deterioration only occurs where the Commonwealth's evidence of
necessary elements 'is later shown to be incredible or
conclusively incorrect'"). "A victim's testimony of facts
constituting an element of a charged offense is sufficient,
2 standing alone, if credited by the [fact finder]." Commonwealth
v. Tillson, 104 Mass. App. Ct. 180, 186 (2024).2
1. Assault and battery with dangerous weapon. To prove
that a defendant committed assault and battery with a dangerous
weapon, the Commonwealth must show that "(1) the defendant
intentionally touched the victim, however slightly; (2) the
touching was unjustified; and (3) the touching was done by means
of (i.e., with) a dangerous weapon." Commonwealth v. Raedy, 68
Mass. App. Ct. 440, 443 (2007). "[O]rdinarily innocuous items
can be considered dangerous weapons when used in an improper and
dangerous manner." Commonwealth v. Sexton, 425 Mass. 146, 149
(1997). Whether the defendant used an object in a dangerous
manner is a question for the fact finder. See id.
The defendant contends that the evidence was insufficient
to convict the defendant of assault and battery with a dangerous
weapon. She argues that (1) the weapon she used, an aluminum
Hydro Flask bottle half filled with water, is not capable of
producing serious bodily injury in the way she was alleged to
have used it because it did not cause serious bodily harm to the
victim, and (2) there was no objective evidence of the bottle
hitting the victim. We are not persuaded.
2 We also note that we have viewed a video recording of the entire incident that was entered in evidence.
3 To begin, there is no requirement that an object used in an
assault must cause an injury to be considered dangerous.3 See
Commonwealth v. Mattei, 455 Mass. 840, 846 (2010) ("The law need
not wait until the instrument actually does cause serious bodily
harm in order to classify the weapon as dangerous" [citation
omitted]). Even putting that aside, the victim here testified
that the Hydro Flask bottle hurt when it struck his head and
caused a "knot" on his head. He further testified that the
Hydro Flask was made of aluminum and was half full when it
struck his head. The Commonwealth also entered in evidence a
photograph of the Hydro Flask bottle that corresponded to the
victim's description of the item. Therefore, the evidence was
sufficient for the judge to conclude that the defendant threw a
half-full metal bottle at the victim which struck his head and,
accordingly, to find that she used the metal bottle in an
improper and dangerous manner. See Sexton, 425 Mass. at 149.
The defendant's argument that there was no objective
evidence that the bottle hit the victim is unavailing. Of
course, under the Latimore standard, we are not limited to
objective evidence but instead consider the evidence in the
light most favorable to the Commonwealth. See Latimore, 378
3 Indeed, if the weapon had caused serious bodily injury, the potential maximum sentence that the defendant faced would have been much greater. See G. L. c. 265, § 15A (c).
4 Mass. at 676-677. The victim testified that the bottle hit him
hard enough that his head hit the window of the car. This was
sufficient for the judge to conclude that the bottle hit the
victim and that the defendant committed the offense as charged.
See Tillson, 104 Mass. App. Ct. at 186.
2. Assault and battery on family or household member. The
defendant contends that the evidence was likewise insufficient
to convict the defendant of assault and battery on a family or
household member where there was "scant evidence" presented at
trial that the defendant committed an assault and battery on the
victim.4 However, just as the victim's testimony was sufficient
to establish that the Hydro Flask water bottle hit him, the
victim's testimony was likewise sufficient to establish that the
defendant grabbed the "hoodie" he was wearing and that the
touching was nonconsensual. See Tillson, 104 Mass. App. Ct. at
186.
The defendant also claims, for the first time on appeal,
that the judge should have found that she acted in self-defense
based on a photograph of bruises on her arms taken after the
incident and her contention that the video recording of the
incident shows her struggling to leave the victim's car. The
The defendant concedes the victim fits the definition of a 4
family member pursuant to G. L. c. 265, § 13M, because the defendant and the victim have a child in common.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-534
COMMONWEALTH
vs.
EVALIZ SOTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On February 29, 2024, following a jury-waived trial, a
Boston Municipal Court judge found the defendant guilty of
assault and battery with a dangerous weapon in violation of
G. L. c. 265, § 15A (b), and assault and battery on a family or
household member in violation of G. L. c. 265, § 13M (a).1 The
defendant appeals, contending that the judge erred by denying
her motions for required findings of not guilty for each charge
which were made both at the close of the Commonwealth's case and
renewed at the close of the defendant's case. We affirm.
1The defendant received one year of probation with conditions, namely that the defendant complete an anger management program within the first six months of her probation and submit to a mental health evaluation. Discussion. In reviewing the denial of motions for
required findings of not guilty we review for "whether the
evidence, in its light most favorable to the Commonwealth,
notwithstanding the contrary evidence presented by the
defendant, is sufficient . . . to permit the jury to infer the
existence of the essential elements of the crime charged"
(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). "[T]he evidence and the inferences permitted to
be drawn therefrom must be of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of [guilt]
beyond a reasonable doubt" (quotation and citation omitted).
Id. Because the Commonwealth's case did not deteriorate during
the presentation of the defendant's evidence, we need not
consider separately the defendant's renewed motions for required
findings of not guilty made at the close of all the evidence.
See Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976). See
also Commonwealth v. Dubois, 451 Mass. 20, 28 (2008), quoting
Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006)
("Deterioration only occurs where the Commonwealth's evidence of
necessary elements 'is later shown to be incredible or
conclusively incorrect'"). "A victim's testimony of facts
constituting an element of a charged offense is sufficient,
2 standing alone, if credited by the [fact finder]." Commonwealth
v. Tillson, 104 Mass. App. Ct. 180, 186 (2024).2
1. Assault and battery with dangerous weapon. To prove
that a defendant committed assault and battery with a dangerous
weapon, the Commonwealth must show that "(1) the defendant
intentionally touched the victim, however slightly; (2) the
touching was unjustified; and (3) the touching was done by means
of (i.e., with) a dangerous weapon." Commonwealth v. Raedy, 68
Mass. App. Ct. 440, 443 (2007). "[O]rdinarily innocuous items
can be considered dangerous weapons when used in an improper and
dangerous manner." Commonwealth v. Sexton, 425 Mass. 146, 149
(1997). Whether the defendant used an object in a dangerous
manner is a question for the fact finder. See id.
The defendant contends that the evidence was insufficient
to convict the defendant of assault and battery with a dangerous
weapon. She argues that (1) the weapon she used, an aluminum
Hydro Flask bottle half filled with water, is not capable of
producing serious bodily injury in the way she was alleged to
have used it because it did not cause serious bodily harm to the
victim, and (2) there was no objective evidence of the bottle
hitting the victim. We are not persuaded.
2 We also note that we have viewed a video recording of the entire incident that was entered in evidence.
3 To begin, there is no requirement that an object used in an
assault must cause an injury to be considered dangerous.3 See
Commonwealth v. Mattei, 455 Mass. 840, 846 (2010) ("The law need
not wait until the instrument actually does cause serious bodily
harm in order to classify the weapon as dangerous" [citation
omitted]). Even putting that aside, the victim here testified
that the Hydro Flask bottle hurt when it struck his head and
caused a "knot" on his head. He further testified that the
Hydro Flask was made of aluminum and was half full when it
struck his head. The Commonwealth also entered in evidence a
photograph of the Hydro Flask bottle that corresponded to the
victim's description of the item. Therefore, the evidence was
sufficient for the judge to conclude that the defendant threw a
half-full metal bottle at the victim which struck his head and,
accordingly, to find that she used the metal bottle in an
improper and dangerous manner. See Sexton, 425 Mass. at 149.
The defendant's argument that there was no objective
evidence that the bottle hit the victim is unavailing. Of
course, under the Latimore standard, we are not limited to
objective evidence but instead consider the evidence in the
light most favorable to the Commonwealth. See Latimore, 378
3 Indeed, if the weapon had caused serious bodily injury, the potential maximum sentence that the defendant faced would have been much greater. See G. L. c. 265, § 15A (c).
4 Mass. at 676-677. The victim testified that the bottle hit him
hard enough that his head hit the window of the car. This was
sufficient for the judge to conclude that the bottle hit the
victim and that the defendant committed the offense as charged.
See Tillson, 104 Mass. App. Ct. at 186.
2. Assault and battery on family or household member. The
defendant contends that the evidence was likewise insufficient
to convict the defendant of assault and battery on a family or
household member where there was "scant evidence" presented at
trial that the defendant committed an assault and battery on the
victim.4 However, just as the victim's testimony was sufficient
to establish that the Hydro Flask water bottle hit him, the
victim's testimony was likewise sufficient to establish that the
defendant grabbed the "hoodie" he was wearing and that the
touching was nonconsensual. See Tillson, 104 Mass. App. Ct. at
186.
The defendant also claims, for the first time on appeal,
that the judge should have found that she acted in self-defense
based on a photograph of bruises on her arms taken after the
incident and her contention that the video recording of the
incident shows her struggling to leave the victim's car. The
The defendant concedes the victim fits the definition of a 4
family member pursuant to G. L. c. 265, § 13M, because the defendant and the victim have a child in common.
5 claim is meritless and, more importantly, waived. As such we
review for a miscarriage of justice. See Commonwealth v.
Randolph, 438 Mass. 290, 297 (2002) (unpreserved claims in
appeals from criminal cases reviewed for substantial risk of
miscarriage of justice). Here, a reasonable fact finder viewing
the video recording of the incident entered in evidence could
conclude that the video shows the defendant reenter the victim's
car repeatedly throughout the altercation. The video recording
also shows that the victim did not pursue the defendant out of
the car either time he pushed the defendant out of his car.
While the defendant at one point braces her right leg against
the car door, it is not obvious that this shows (as the
defendant claims) the defendant struggling to get out of the
car. The judge therefore had ample ground to reject a self-
defense theory based on the fact that the defendant did not use
all reasonable means to avoid physical combat. See Commonwealth
v. King, 460 Mass. 80, 83 (2011) (self-defense instruction
warranted if evidence, viewed in light most favorable to
6 defendant, shows, among other things, that defendant "used all
reasonable means to avoid physical combat").5
Judgments affirmed.
By the Court (Desmond, D'Angelo & Smyth, JJ.6),
Clerk
Entered: May 14, 2026.
5 It is of no moment that the judge did not state that he had considered a self-defense claim, because "[a] trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself" on the law applicable (citation omitted). Commonwealth v. Adkinson, 442 Mass. 410, 421 (2004). The judge either could have considered and rejected a self-defense claim or could have declined to consider a self- defense claim. See King, 460 Mass. at 83.
6 The panelists are listed in order of seniority.