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-510
COMMONWEALTH
vs.
JEAN P. DURAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a District Court judge found the
defendant guilty of two counts of assault and battery by means
of a dangerous weapon causing serious bodily injury, in
violation of G. L. c. 265, § 15A (c) (1), notwithstanding the
Commonwealth's concession at trial that the evidence "compelled"
the judge to find that the defendant was not criminally
responsible. The defendant appeals, arguing that the evidence
was insufficient to sustain the convictions. We affirm.
Discussion. The evidence at trial, which included a video
recording of the assault on the victim, established that the
defendant committed the crimes of which he was convicted. In
his defense, the defendant presented expert testimony that at the time of the offenses he "was suffering psychotic symptoms as
a result of schizophrenia, as a result of which he was not able
to appreciate the wrongfulness of his behavior or to conform his
conduct to the requirements of the law." The defendant's
evidence permitted the finder of fact to have reasonable doubt
that the defendant was criminally responsible for the offenses.
Therefore, "the Commonwealth [had] the burden of proving beyond
a reasonable doubt that the defendant was criminally
responsible." Commonwealth v. Lawson, 475 Mass. 806, 811
(2016). The Commonwealth could carry its burden by
demonstrating that even though the defendant suffered from a
mental disease or defect, it did not cause him "to lack
substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law."
Id., quoting Commonwealth v. Keita, 429 Mass. 843, 849–850
(1999).
In assessing the sufficiency of the evidence, "we examine
the evidence in the light most favorable to the Commonwealth and
determine whether the evidence and the inferences that
reasonably could be drawn from it were of sufficient force to
permit a rational finder of fact to conclude that the defendant
was criminally responsible beyond a reasonable doubt"
(quotations and citation omitted). Commonwealth v. Griffin, 475
2 Mass. 848, 856 (2016). Proof of criminal responsibility may be
based on "inferences arising from the circumstances of the
offense," as well as "the defendant's words and conduct before,
during, and after the offense." Lawson, 475 Mass. at 816.
As an initial matter, the Commonwealth's concession at
trial that the evidence of criminal responsibility was
insufficient is irrelevant to our analysis. Whereas a factual
concession is binding, see Commonwealth v. Va Meng Joe, 425
Mass. 99, 102 (1997), a legal concession is not, see id. at 106
n.9. Because the sufficiency of the evidence is a question of
law, see Commonwealth v. Doucette, 408 Mass. 454, 456 (1990);
Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013), the
Commonwealth's concession "can legitimately be ignored on
appeal." Va Meng Joe, supra.
The evidence showed that on July 25, 2021, the defendant
was involuntarily committed to Lowell General Hospital under
G. L. c. 123, § 12, after his arrest for a criminal incident
that day in Chelmsford. His convictions stemmed from his attack
on a nurse in the hospital six days later. His expert forensic
psychologist, Shawn Channell, met with the defendant
approximately three years later. Channell reviewed numerous
documents to form his opinion; the most significant of these
generally are medical records contemporaneous with the crime.
3 In this regard, Channell reviewed the Lowell General Hospital
records, which were entered in evidence. The records indicated
that on the day he was admitted, the defendant was exhibiting
symptoms of schizophrenia. "He was noted to be very paranoid,
suspicious, irritable, edgy, and he had disorganized thinking."
During his interview with Channell, the defendant reported that
the nurse had told him that he deserved to be in jail, and that
other patients also had problems with the same nurse; the
defendant told the others that he would "take care of it."
Channell considered these comments to be evidence of delusional
thinking. After the assault at Lowell General Hospital, the
defendant was admitted to Bridgewater State Hospital, where his
symptoms persisted.
The Lowell General Hospital records, which the judge
reviewed and "which provided a great deal of insight for [him],"
included other notations that Channell did not mention in his
testimony. For example, when the defendant was first admitted,
he refused to answer questions about the July 25 incident,
saying he needed his lawyer to be present. On July 28, after
being hospitalized for three days, he was "calm" and
"cooperative." On July 29, although he remained "evasive and
guarded," he was still calm and cooperative with his caretakers.
On the morning of July 30, he was cooperative and "[m]aintaining
4 control." Near midnight he woke up "extremely agitated" and
paranoid; however, he was "able to de-escalate [him]self."
On the day he attacked the nurse, he was "maintaining
control," polite, and cooperative. The hospital records also
state that, just before the attack, he told other patients to
"watch this." The video of the incident shows him calmly
walking over to the nurse's station before grabbing a fire
extinguisher and suddenly attacking her. He approached quickly
and quietly from behind so that she did not notice she was about
to be attacked.
In reviewing the sufficiency of the evidence, we "must view
the evidence in the light most favorable to the Commonwealth and
must disregard contrary evidence presented by the defendant,
including the testimony of a defense expert, unless the contrary
evidence demonstrates that the Commonwealth's evidence, or any
inference drawn from such evidence, is 'conclusively
incorrect.'" Lawson, 475 Mass. at 817, quoting Commonwealth v.
O'Laughlin, 446 Mass. 188, 204 (2006). Based on the evidence,
the judge could have rationally concluded that even if the
defendant was not criminally responsible on July 25, and even if
he had a mental illness, after six days of hospitalization he
was in control of his actions and emotions such that he
understood the wrongfulness of attacking the nurse, had the
5 ability to comport his conduct with the law, or both. "There
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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-510
COMMONWEALTH
vs.
JEAN P. DURAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a District Court judge found the
defendant guilty of two counts of assault and battery by means
of a dangerous weapon causing serious bodily injury, in
violation of G. L. c. 265, § 15A (c) (1), notwithstanding the
Commonwealth's concession at trial that the evidence "compelled"
the judge to find that the defendant was not criminally
responsible. The defendant appeals, arguing that the evidence
was insufficient to sustain the convictions. We affirm.
Discussion. The evidence at trial, which included a video
recording of the assault on the victim, established that the
defendant committed the crimes of which he was convicted. In
his defense, the defendant presented expert testimony that at the time of the offenses he "was suffering psychotic symptoms as
a result of schizophrenia, as a result of which he was not able
to appreciate the wrongfulness of his behavior or to conform his
conduct to the requirements of the law." The defendant's
evidence permitted the finder of fact to have reasonable doubt
that the defendant was criminally responsible for the offenses.
Therefore, "the Commonwealth [had] the burden of proving beyond
a reasonable doubt that the defendant was criminally
responsible." Commonwealth v. Lawson, 475 Mass. 806, 811
(2016). The Commonwealth could carry its burden by
demonstrating that even though the defendant suffered from a
mental disease or defect, it did not cause him "to lack
substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law."
Id., quoting Commonwealth v. Keita, 429 Mass. 843, 849–850
(1999).
In assessing the sufficiency of the evidence, "we examine
the evidence in the light most favorable to the Commonwealth and
determine whether the evidence and the inferences that
reasonably could be drawn from it were of sufficient force to
permit a rational finder of fact to conclude that the defendant
was criminally responsible beyond a reasonable doubt"
(quotations and citation omitted). Commonwealth v. Griffin, 475
2 Mass. 848, 856 (2016). Proof of criminal responsibility may be
based on "inferences arising from the circumstances of the
offense," as well as "the defendant's words and conduct before,
during, and after the offense." Lawson, 475 Mass. at 816.
As an initial matter, the Commonwealth's concession at
trial that the evidence of criminal responsibility was
insufficient is irrelevant to our analysis. Whereas a factual
concession is binding, see Commonwealth v. Va Meng Joe, 425
Mass. 99, 102 (1997), a legal concession is not, see id. at 106
n.9. Because the sufficiency of the evidence is a question of
law, see Commonwealth v. Doucette, 408 Mass. 454, 456 (1990);
Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013), the
Commonwealth's concession "can legitimately be ignored on
appeal." Va Meng Joe, supra.
The evidence showed that on July 25, 2021, the defendant
was involuntarily committed to Lowell General Hospital under
G. L. c. 123, § 12, after his arrest for a criminal incident
that day in Chelmsford. His convictions stemmed from his attack
on a nurse in the hospital six days later. His expert forensic
psychologist, Shawn Channell, met with the defendant
approximately three years later. Channell reviewed numerous
documents to form his opinion; the most significant of these
generally are medical records contemporaneous with the crime.
3 In this regard, Channell reviewed the Lowell General Hospital
records, which were entered in evidence. The records indicated
that on the day he was admitted, the defendant was exhibiting
symptoms of schizophrenia. "He was noted to be very paranoid,
suspicious, irritable, edgy, and he had disorganized thinking."
During his interview with Channell, the defendant reported that
the nurse had told him that he deserved to be in jail, and that
other patients also had problems with the same nurse; the
defendant told the others that he would "take care of it."
Channell considered these comments to be evidence of delusional
thinking. After the assault at Lowell General Hospital, the
defendant was admitted to Bridgewater State Hospital, where his
symptoms persisted.
The Lowell General Hospital records, which the judge
reviewed and "which provided a great deal of insight for [him],"
included other notations that Channell did not mention in his
testimony. For example, when the defendant was first admitted,
he refused to answer questions about the July 25 incident,
saying he needed his lawyer to be present. On July 28, after
being hospitalized for three days, he was "calm" and
"cooperative." On July 29, although he remained "evasive and
guarded," he was still calm and cooperative with his caretakers.
On the morning of July 30, he was cooperative and "[m]aintaining
4 control." Near midnight he woke up "extremely agitated" and
paranoid; however, he was "able to de-escalate [him]self."
On the day he attacked the nurse, he was "maintaining
control," polite, and cooperative. The hospital records also
state that, just before the attack, he told other patients to
"watch this." The video of the incident shows him calmly
walking over to the nurse's station before grabbing a fire
extinguisher and suddenly attacking her. He approached quickly
and quietly from behind so that she did not notice she was about
to be attacked.
In reviewing the sufficiency of the evidence, we "must view
the evidence in the light most favorable to the Commonwealth and
must disregard contrary evidence presented by the defendant,
including the testimony of a defense expert, unless the contrary
evidence demonstrates that the Commonwealth's evidence, or any
inference drawn from such evidence, is 'conclusively
incorrect.'" Lawson, 475 Mass. at 817, quoting Commonwealth v.
O'Laughlin, 446 Mass. 188, 204 (2006). Based on the evidence,
the judge could have rationally concluded that even if the
defendant was not criminally responsible on July 25, and even if
he had a mental illness, after six days of hospitalization he
was in control of his actions and emotions such that he
understood the wrongfulness of attacking the nurse, had the
5 ability to comport his conduct with the law, or both. "There
was evidence that the defendant appeared to be acting normally
in the days leading up to the [crime]." Griffin, 475 Mass. at
856. Given his guarded and generally calm behavior during his
stay at Lowell General Hospital and his words and conduct
immediately before the attack, the judge was not "conclusively
incorrect," O'Laughlin, supra, in finding that the evidence
supported a finding of criminal responsibility. "It will be the
rare case where the totality of the evidence regarding the
defendant's conduct and the circumstances surrounding the
offense will not be sufficient to defeat a defendant's motion
for a required finding of not guilty by reason of lack of
criminal responsibility." Lawson, supra.
Finally, we are not persuaded by the defendant's argument
that the judge applied the wrong legal standard and found him
guilty only "so that he could be monitored by the probation
department." The judge's remark during sentencing that it was
"important . . . to keep [the defendant] on probationary terms
so that we know that he continues on the [positive] path that
he's directed towards now," was a response to the defendant's
request that the suspended sentence be stayed pending appeal,
not a comment on the evidence or the verdict. We presume that a
judge sitting as the trier of fact applies the correct legal
6 standards. See Commonwealth v. Graziano, 96 Mass. App. Ct. 601,
608 (2019); Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308
(1992). The judge's comment while imposing the sentence is not
"a showing sufficient to overcome that presumption." Graziano,
supra.
Judgments affirmed.
By the Court (Massing, Neyman & Smyth, JJ.1),
Clerk
Entered: March 13, 2026.
1 The panelists are listed in order of seniority.