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
23-P-785
COMMONWEALTH
vs.
FARIZA A. ELAWAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of assault and battery and resisting arrest.1 The
victim of the assault and battery was the defendant's twelve
year old daughter. At trial, there was no dispute that the
defendant struck her daughter in the face. The defendant
claimed however, that she was not criminally liable for her
conduct because she was exercising her parental privilege to
discipline her child. On appeal, the defendant argues that the
Commonwealth failed to present sufficient evidence to disprove
her defense of parental privilege beyond a reasonable doubt and
1The jury found the defendant not guilty of disorderly conduct. also failed to introduce sufficient evidence to support a
conviction of resisting arrest. We affirm.
Background. During the evening of February 4, 2019, three
police officers from the Stoughton police department went to the
defendant's home to conduct a well-being check on her daughter,
whom we shall call Sally. The officers spoke with the defendant
and Sally in the driveway. Sally appeared "sad and upset," and
was "borderline crying." According to one of the officers, as
Sally was talking to them, the defendant became "upset" and
"unhappy" about what Sally was telling them. Another officer
testified that the defendant became "enraged." All three
officers observed the defendant step toward Sally and strike her
in the face with a closed fist. The punch caused Sally to lose
her balance and she almost fell to the ground. One officer
testified that "she [the defendant] hit [Sally] probably as hard
as I've ever seen a woman hit another person," and the "hollow
sound" of the punch made him "cringe." All three officers were
taken aback by the defendant's conduct. Two officers testified
that they were in "shock" and the other said "I couldn't even
believe my eyes." The daughter weighed about 110 pounds and was
considerably smaller than the defendant, who weighed over 200
pounds.
2 The officers then informed the defendant that she was under
arrest and attempted to handcuff her. The defendant began
yelling and "screaming" that she was a good mother, could do
what she wanted to her daughter, and would do it again. The
defendant flailed her arms, pulled away, and then lowered
herself to the ground. The officers needed to use two sets of
handcuffs to restrain her.
As previously noted, the primary theory of the defense to
the assault and battery charge was that the defendant had a
right to discipline her daughter. The defendant asserted her
defense of parental privilege through cross-examination of the
officers, argument, and the testimony of her husband, who
explained that physical discipline was an accepted practice in
their home and within the family's religious and cultural
beliefs.
Discussion. At the close of the Commonwealth's case-in-
chief and at the close of all the evidence, the defendant filed
motions for required findings of not guilty, which were denied.
In evaluating the denial of a motion for a required finding of
not guilty at the close of the Commonwealth's evidence, we view
the evidence in the light most favorable to the Commonwealth to
determine whether any "rational trier of fact could have found
the essential elements the crime beyond a reasonable doubt"
3 (quotation and citation omitted). Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). In evaluating such a motion filed at
the close of all the evidence, "we consider the state of the
evidence . . . to determine whether the Commonwealth's position
as to proof deteriorated after it closed its case."
Commonwealth v. Semedo, 456 Mass. 1, 8 (2010), quoting
Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).
1. Parental privilege defense. In Commonwealth v. Dorvil,
472 Mass. 1, 10 (2015), the Supreme Judicial Court recognized
parents' rights to use reasonable limited physical force to
discipline their child. The privilege provides that no criminal
liability will attach to a parent's use of force against his or
her child as long as:
"(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."
Id. See Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 461
(2018). "[E]ach of the three prongs constitutes a question for
the trier of fact." Dorvil, supra at 13. As is the case with
other affirmative defenses, "the Commonwealth bears the burden
of disproving at least one prong of the defense beyond a
reasonable doubt." Id.
4 Viewed in the light most favorable to the Commonwealth, we
need go no further than evaluating the evidence regarding prong
one of the parental discipline defense to conclude that the
evidence adduced at trial was sufficient beyond a reasonable
doubt to meet the Commonwealth's burden. The officers'
testimony established that the defendant punched Sally with such
force that the daughter, who was smaller in stature than the
defendant, was nearly knocked over by the blow. The sound of
the impact made one officer "cringe." All three officers said
they were shocked by the incident. Based on this testimony, a
rational trier of fact could conclude beyond a reasonable doubt
that the force used was not reasonable.
Furthermore, nothing in the defendant's case caused the
Commonwealth's evidence to deteriorate. To the contrary, the
defendant's husband acknowledged during cross-examination that
hitting a child with a closed fist was not appropriate.
Next, the defendant claims that the Commonwealth did not
meet its burden of proving that the defendant resisted arrest
beyond a reasonable doubt. A conviction for resisting arrest
requires the Commonwealth to prove beyond a reasonable doubt
that the defendant:
"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
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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
23-P-785
COMMONWEALTH
vs.
FARIZA A. ELAWAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of assault and battery and resisting arrest.1 The
victim of the assault and battery was the defendant's twelve
year old daughter. At trial, there was no dispute that the
defendant struck her daughter in the face. The defendant
claimed however, that she was not criminally liable for her
conduct because she was exercising her parental privilege to
discipline her child. On appeal, the defendant argues that the
Commonwealth failed to present sufficient evidence to disprove
her defense of parental privilege beyond a reasonable doubt and
1The jury found the defendant not guilty of disorderly conduct. also failed to introduce sufficient evidence to support a
conviction of resisting arrest. We affirm.
Background. During the evening of February 4, 2019, three
police officers from the Stoughton police department went to the
defendant's home to conduct a well-being check on her daughter,
whom we shall call Sally. The officers spoke with the defendant
and Sally in the driveway. Sally appeared "sad and upset," and
was "borderline crying." According to one of the officers, as
Sally was talking to them, the defendant became "upset" and
"unhappy" about what Sally was telling them. Another officer
testified that the defendant became "enraged." All three
officers observed the defendant step toward Sally and strike her
in the face with a closed fist. The punch caused Sally to lose
her balance and she almost fell to the ground. One officer
testified that "she [the defendant] hit [Sally] probably as hard
as I've ever seen a woman hit another person," and the "hollow
sound" of the punch made him "cringe." All three officers were
taken aback by the defendant's conduct. Two officers testified
that they were in "shock" and the other said "I couldn't even
believe my eyes." The daughter weighed about 110 pounds and was
considerably smaller than the defendant, who weighed over 200
pounds.
2 The officers then informed the defendant that she was under
arrest and attempted to handcuff her. The defendant began
yelling and "screaming" that she was a good mother, could do
what she wanted to her daughter, and would do it again. The
defendant flailed her arms, pulled away, and then lowered
herself to the ground. The officers needed to use two sets of
handcuffs to restrain her.
As previously noted, the primary theory of the defense to
the assault and battery charge was that the defendant had a
right to discipline her daughter. The defendant asserted her
defense of parental privilege through cross-examination of the
officers, argument, and the testimony of her husband, who
explained that physical discipline was an accepted practice in
their home and within the family's religious and cultural
beliefs.
Discussion. At the close of the Commonwealth's case-in-
chief and at the close of all the evidence, the defendant filed
motions for required findings of not guilty, which were denied.
In evaluating the denial of a motion for a required finding of
not guilty at the close of the Commonwealth's evidence, we view
the evidence in the light most favorable to the Commonwealth to
determine whether any "rational trier of fact could have found
the essential elements the crime beyond a reasonable doubt"
3 (quotation and citation omitted). Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). In evaluating such a motion filed at
the close of all the evidence, "we consider the state of the
evidence . . . to determine whether the Commonwealth's position
as to proof deteriorated after it closed its case."
Commonwealth v. Semedo, 456 Mass. 1, 8 (2010), quoting
Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).
1. Parental privilege defense. In Commonwealth v. Dorvil,
472 Mass. 1, 10 (2015), the Supreme Judicial Court recognized
parents' rights to use reasonable limited physical force to
discipline their child. The privilege provides that no criminal
liability will attach to a parent's use of force against his or
her child as long as:
"(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."
Id. See Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 461
(2018). "[E]ach of the three prongs constitutes a question for
the trier of fact." Dorvil, supra at 13. As is the case with
other affirmative defenses, "the Commonwealth bears the burden
of disproving at least one prong of the defense beyond a
reasonable doubt." Id.
4 Viewed in the light most favorable to the Commonwealth, we
need go no further than evaluating the evidence regarding prong
one of the parental discipline defense to conclude that the
evidence adduced at trial was sufficient beyond a reasonable
doubt to meet the Commonwealth's burden. The officers'
testimony established that the defendant punched Sally with such
force that the daughter, who was smaller in stature than the
defendant, was nearly knocked over by the blow. The sound of
the impact made one officer "cringe." All three officers said
they were shocked by the incident. Based on this testimony, a
rational trier of fact could conclude beyond a reasonable doubt
that the force used was not reasonable.
Furthermore, nothing in the defendant's case caused the
Commonwealth's evidence to deteriorate. To the contrary, the
defendant's husband acknowledged during cross-examination that
hitting a child with a closed fist was not appropriate.
Next, the defendant claims that the Commonwealth did not
meet its burden of proving that the defendant resisted arrest
beyond a reasonable doubt. A conviction for resisting arrest
requires the Commonwealth to prove beyond a reasonable doubt
that the defendant:
"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
5 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. Grandison, 433 Mass. 135, 144 n.18 (2001),
quoting G. L. c. 268, § 32B. "The test to determine whether a
person understood that they were being arrested is an objective
one; i.e., 'what a reasonable man, innocent of any crime, would
have thought had he been in the defendant's shoes.'"
Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012), quoting
Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 127 (2008).
The defendant claims that a reasonable person in her
position would not have known that she was under arrest and that
the mere act of flailing her arms and pulling away from the
officers did not create a substantial risk of bodily harm. This
argument ignores the requirement that the evidence must be
viewed in the light most favorable to the Commonwealth. There
was testimony from three police officers, all of whom were in
uniform, that the defendant was informed that they were placing
her under arrest. And, while none of the officers suffered any
injury, the defendant's reaction to their attempt to handcuff
her posed a potential danger of physical harm. The defendant
used physical force to resist: she flailed her arms, pulled
away, and leveraged her body weight to force herself to the
ground. She continued to yell and scream that her actions were
6 justified and never complied with the officers' requests. She
instead resisted to the point where two sets of handcuffs were
required to restrain her. These facts were sufficient to
establish the elements of resisting arrest beyond a reasonable
doubt.
Judgments affirmed.
By the Court (Vuono, Meade & Hand, JJ.2),
Clerk
Entered: January 6, 2025.
2 The panelists are listed in order of seniority.