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-1371
COMMONWEALTH
vs.
GLENN W. TODD.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, Glenn W. Todd
(the defendant), was convicted of assault and battery on a
public employee, in violation of G. L. c. 265, § 13D. The
defendant's conviction arose from a physical altercation that
occurred when the defendant, who was in custody at the time,
refused to leave a court house lockup facility, resulting in
Court Officer Ross Elliot (Elliot) sustaining a knee injury.
The defendant now appeals, primarily asserting that the
Commonwealth presented insufficient evidence to support the
1As is our custom, we spell the defendant's name as it appears in the complaint. We note, however, that in the docket and several filings, including the defendant's brief, the defendant's first name is spelled "Glen." verdict. Because we conclude that the evidence at trial was
indeed insufficient to permit a rational trier of fact to find
that the defendant intentionally touched or used force against
Elliot, we reverse.
Background. We summarize the facts pertinent to our
analysis as the jury could have found them. On April 5, 2022,
the defendant was being held in a lockup area in the Haverhill
District Court House following a court proceeding. At
approximately 4 P.M., members of the Essex County Sheriff's
Department (Sheriff's Department) arrived to transport the
defendant back to the Essex County Correctional Facility
(correctional facility). At this time, the defendant, who was
agitated as a result of his court proceeding, was verbally
refusing to be transported back to the jail. When the transport
officers informed him that they were required to return him to
the correctional facility, the defendant then asserted that he
required medical treatment due to anxiety, stress, and asthma,
and requested to be taken to a hospital. As a result, Elliot,
who was trained in assessing vital signs, performed a medical
evaluation of the defendant and determined that he was not in
need of immediate medical attention and fit for transport back
to the jail.
When the defendant continued to refuse to comply, he was
informed by an officer that he was "going to the van back to
2 jail one way or another, that the choice was his, that he could
do it the easy way or he can do it the hard way." The defendant
continued to refuse to comply. At that point, two deputies from
the Sheriff's Department and Court Officer Michael Oliver
attempted to physically restrain the defendant.2 When the
officers approached the defendant to place him in handcuffs, the
defendant pulled his arms away and attempted to evade the
officers by sliding along the bench he was seated on into the
corner of the room. The three officers then "took him [the
defendant] down to the ground to try to control him and put the
cuffs on." When the defendant was on the ground, he was
"squirming" and was "taking his hands and pinning them to his
chest" to prevent the officers from handcuffing him.
Shortly thereafter, Elliot knelt behind the defendant to
assist the three officers with applying the restraints. After
Elliot was kneeling behind the defendant, one of the deputies
who was positioned in front of Elliot drove his shoulder into
the defendant's torso pushing the defendant into Elliot. While
Elliot was unable to pinpoint the exact moment that he sustained
the injury to his knee, he testified that he was injured
2 The entire confrontation was captured on surveillance footage, without sound, which was entered in evidence and shown to the jury.
3 "[r]ight around when that final push came through with the other
gentlemen, the other officers."
Discussion. When reviewing claims of insufficient evidence
presented at trial, "we assess the evidence in the light most
favorable to the Commonwealth 'to determine whether any rational
trier of fact could have found each element of the crime beyond
a reasonable doubt.'" Commonwealth v. Baez, 494 Mass. 396, 400
(2024), quoting Commonwealth v. Robinson, 493 Mass. 303, 307
(2024). "The evidence may be direct or circumstantial, and we
draw all reasonable inferences in favor of the Commonwealth"
(citation omitted). Baez, supra.
In accordance with the District Court's model jury
instruction for assault and battery on a public employee at the
time of trial, the judge instructed that the Commonwealth was
required to prove that the defendant "intended to touch Ross
Elliot in the sense that the defendant consciously and
deliberately intended the touching to occur, and that the
touching was not merely accidental or negligent." See
Instruction 6.210 of the Criminal Model Jury Instructions for
Use in the District Court (2022). "An intentional assault and
battery is the intentional and unjustified use of force upon the
person of another, however slight" (quotation and citation
4 omitted).3 Commonwealth v. Porro, 458 Mass. 526, 529 (2010).
The touching "may be direct, as by striking another, or it may
be indirect, as by setting in motion some force or
instrumentality with the intent to cause injury." Commonwealth
v. Dixon, 34 Mass. App. Ct. 653, 654 (1993). "Where the
touching is physically harmful, consent is immaterial, but a
nonharmful touching is a battery only if there is no consent"
(quotations and citation omitted). Porro, supra. To prove
assault and battery under G. L. c. 265, § 13D, the Commonwealth
must also prove that the offense was "committed on a public
employee who was engaged in the performance of his duty at the
time of the assault and battery"4 (quotation omitted).
Commonwealth v. Correia, 50 Mass. App. Ct. 455, 457 (2000),
citing G. L. c. 265, § 13D (1990).
Here, the evidence even when viewed in the light most
favorable to the Commonwealth reveals that the defendant did not
3 The Commonwealth did not seek an instruction on reckless assault and battery, which "is committed when an individual engages in reckless conduct that results in a touching producing physical injury to another person; an unconsented touching is not sufficient" (citations omitted). Porro, 458 Mass. at 529- 530. See Commonwealth v. Correia, 50 Mass. App. Ct. 455, 455- 457 (2000) (on similar facts, judge properly instructed on both reckless and intentional theories). We do not reach the question whether the evidence would have been sufficient to convict on a theory of reckless assault and battery.
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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-1371
COMMONWEALTH
vs.
GLENN W. TODD.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, Glenn W. Todd
(the defendant), was convicted of assault and battery on a
public employee, in violation of G. L. c. 265, § 13D. The
defendant's conviction arose from a physical altercation that
occurred when the defendant, who was in custody at the time,
refused to leave a court house lockup facility, resulting in
Court Officer Ross Elliot (Elliot) sustaining a knee injury.
The defendant now appeals, primarily asserting that the
Commonwealth presented insufficient evidence to support the
1As is our custom, we spell the defendant's name as it appears in the complaint. We note, however, that in the docket and several filings, including the defendant's brief, the defendant's first name is spelled "Glen." verdict. Because we conclude that the evidence at trial was
indeed insufficient to permit a rational trier of fact to find
that the defendant intentionally touched or used force against
Elliot, we reverse.
Background. We summarize the facts pertinent to our
analysis as the jury could have found them. On April 5, 2022,
the defendant was being held in a lockup area in the Haverhill
District Court House following a court proceeding. At
approximately 4 P.M., members of the Essex County Sheriff's
Department (Sheriff's Department) arrived to transport the
defendant back to the Essex County Correctional Facility
(correctional facility). At this time, the defendant, who was
agitated as a result of his court proceeding, was verbally
refusing to be transported back to the jail. When the transport
officers informed him that they were required to return him to
the correctional facility, the defendant then asserted that he
required medical treatment due to anxiety, stress, and asthma,
and requested to be taken to a hospital. As a result, Elliot,
who was trained in assessing vital signs, performed a medical
evaluation of the defendant and determined that he was not in
need of immediate medical attention and fit for transport back
to the jail.
When the defendant continued to refuse to comply, he was
informed by an officer that he was "going to the van back to
2 jail one way or another, that the choice was his, that he could
do it the easy way or he can do it the hard way." The defendant
continued to refuse to comply. At that point, two deputies from
the Sheriff's Department and Court Officer Michael Oliver
attempted to physically restrain the defendant.2 When the
officers approached the defendant to place him in handcuffs, the
defendant pulled his arms away and attempted to evade the
officers by sliding along the bench he was seated on into the
corner of the room. The three officers then "took him [the
defendant] down to the ground to try to control him and put the
cuffs on." When the defendant was on the ground, he was
"squirming" and was "taking his hands and pinning them to his
chest" to prevent the officers from handcuffing him.
Shortly thereafter, Elliot knelt behind the defendant to
assist the three officers with applying the restraints. After
Elliot was kneeling behind the defendant, one of the deputies
who was positioned in front of Elliot drove his shoulder into
the defendant's torso pushing the defendant into Elliot. While
Elliot was unable to pinpoint the exact moment that he sustained
the injury to his knee, he testified that he was injured
2 The entire confrontation was captured on surveillance footage, without sound, which was entered in evidence and shown to the jury.
3 "[r]ight around when that final push came through with the other
gentlemen, the other officers."
Discussion. When reviewing claims of insufficient evidence
presented at trial, "we assess the evidence in the light most
favorable to the Commonwealth 'to determine whether any rational
trier of fact could have found each element of the crime beyond
a reasonable doubt.'" Commonwealth v. Baez, 494 Mass. 396, 400
(2024), quoting Commonwealth v. Robinson, 493 Mass. 303, 307
(2024). "The evidence may be direct or circumstantial, and we
draw all reasonable inferences in favor of the Commonwealth"
(citation omitted). Baez, supra.
In accordance with the District Court's model jury
instruction for assault and battery on a public employee at the
time of trial, the judge instructed that the Commonwealth was
required to prove that the defendant "intended to touch Ross
Elliot in the sense that the defendant consciously and
deliberately intended the touching to occur, and that the
touching was not merely accidental or negligent." See
Instruction 6.210 of the Criminal Model Jury Instructions for
Use in the District Court (2022). "An intentional assault and
battery is the intentional and unjustified use of force upon the
person of another, however slight" (quotation and citation
4 omitted).3 Commonwealth v. Porro, 458 Mass. 526, 529 (2010).
The touching "may be direct, as by striking another, or it may
be indirect, as by setting in motion some force or
instrumentality with the intent to cause injury." Commonwealth
v. Dixon, 34 Mass. App. Ct. 653, 654 (1993). "Where the
touching is physically harmful, consent is immaterial, but a
nonharmful touching is a battery only if there is no consent"
(quotations and citation omitted). Porro, supra. To prove
assault and battery under G. L. c. 265, § 13D, the Commonwealth
must also prove that the offense was "committed on a public
employee who was engaged in the performance of his duty at the
time of the assault and battery"4 (quotation omitted).
Commonwealth v. Correia, 50 Mass. App. Ct. 455, 457 (2000),
citing G. L. c. 265, § 13D (1990).
Here, the evidence even when viewed in the light most
favorable to the Commonwealth reveals that the defendant did not
3 The Commonwealth did not seek an instruction on reckless assault and battery, which "is committed when an individual engages in reckless conduct that results in a touching producing physical injury to another person; an unconsented touching is not sufficient" (citations omitted). Porro, 458 Mass. at 529- 530. See Commonwealth v. Correia, 50 Mass. App. Ct. 455, 455- 457 (2000) (on similar facts, judge properly instructed on both reckless and intentional theories). We do not reach the question whether the evidence would have been sufficient to convict on a theory of reckless assault and battery.
4 The defendant does not dispute that Elliot was a public employee engaged in the performance of his duty at the time that the altercation occurred.
5 intentionally touch or use force against Elliot. See Baez, 494
Mass. at 400. The surveillance footage depicts the defendant
resisting restraint and evading the officers by moving to the
corner of the room, clutching his arms to his chest, and
squirming while he is on the ground. After Elliot knelt behind
the defendant, during the time the alleged assault and battery
occurred, the surveillance footage fails to show that the
defendant intentionally touched or used force against Elliot, or
any other officer for that matter, in any way.5 Furthermore,
Elliot did not testify that the defendant engaged in any conduct
against him amounting to intentional assault and battery.
Conclusion. Accordingly, the defendant's judgment of
conviction for assault and battery on a public employee is
5 In fact, it appears from the surveillance footage that the only time the defendant contacted Elliot, rather than Elliot contacting the defendant, was when the defendant was pushed into Elliot by the deputy.
6 reversed, the verdict is set aside, and judgment shall enter for
the defendant.6
So ordered.
By the Court (Desmond, Grant & Hodgens, JJ.7),
Clerk
Entered: May 13, 2025.
6 Because we reverse the defendant's conviction on sufficiency grounds, we need not address the defendant's additional arguments.
7 The panelists are listed in order of seniority.