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SJC-12036

               COMMONWEALTH   vs.   DONALD DUSTIN.


                        November 23, 2016.


Assault and Battery.   Words, "Substantive dating relationship."


     After a jury trial, the defendant, Donald Dustin, was
convicted in the Marlborough Division of the District Court
Department of assault and battery on a family or household
member, in violation of G. L. c. 265, § 13M (a).1 We granted the
defendant's application for direct appellate review to consider
the "substantive dating relationship" element of § 13M (a).2 We
affirm.



    1
       The defendant also was convicted of reckless operation of
a motor vehicle, in violation of G. L. c. 90, § 24. He makes no
argument with respect to this conviction, and we do not consider
it. The jury returned a verdict of not guilty of a charge of
strangulation, in violation of G. L. c. 265, § 15D (b).
    2
       We acknowledge the amicus brief submitted by Tyrone
Stampley. We decline, however, to address the argument put
forth in the amicus brief that G. L. c. 265, § 13M, is
unconstitutionally vague. "An amicus may not argue issues not
raised by the parties." Robinson v. State Ballot Law Comm'n,
432 Mass. 145, 147 n.4 (2000). See generally C.O. v. M.M., 442
Mass. 648, 650 (2004) (considering same statutory language in
context of G. L. c. 209A; "[b]ecause [G. L. c. 209A] enumerates
four factors to be considered in determining the existence of a
'substantive dating relationship,' there is sufficient language
in the statute to enable [fact finders] to make informed and
consistent determinations").
                                                                   2


     1. Timing of the defendant's motion. The defendant did
not make a timely motion at the close of the Commonwealth's case
for a required finding of not guilty with respect to the assault
and battery charge.3 See Mass. R. Crim. P. 25 (a), as amended,
420 Mass. 1502 (1995). See also Commonwealth v. Brown, 449
Mass. 747, 762 (2007). Had he done so, we would have considered
only the evidence admitted during the Commonwealth's case-in-
chief to decide "whether the Commonwealth presented sufficient
evidence of the defendant's guilt to submit the case to the
jury."4 Commonwealth v. Platt, 440 Mass. 396, 400 (2003). See
Brown, supra; Commonwealth v. Berry, 431 Mass. 326, 331-332
(2000). Cf. Commonwealth v. Hurley, 455 Mass. 53, 69 n.15
(2009) (motion for required finding filed "after the
Commonwealth has rested and before the defense was invited to
present evidence" must be ruled on at that time). Instead, we
consider whether the evidence during the entire trial, including
the evidence presented during the defendant's case, was
sufficient to sustain the conviction.

     2. Factual background. A detailed description of the
events of August 28, 2014, which gave rise to the criminal
charges, is unnecessary to this appeal. It suffices to say that

    3
       The defendant's challenge to the sufficiency of the
evidence of a "substantive dating relationship" was first made
after the Commonwealth had rested and after the defendant had
called his first witness, the witness had completed his
testimony, and he had been excused. Unless a defendant moves
for a required finding after the Commonwealth rests its case and
before he begins his own, his rights are not fixed at that point
for purposes of evaluating the sufficiency of the evidence under
Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995).
The defendant has not raised, in this direct appeal from his
conviction, any claim of ineffectiveness of his counsel at
trial.
    4
       The point is of substantial significance here, because
both the defendant and Stacey Rock testified about the nature of
their relationship, essentially filling any gap in the
                         5
Commonwealth's case.       General Laws c. 209A, § 1 (e),
instructs courts to consider the following factors when
determining whether a "substantive dating" relationship exists
for purposes of c. 209A: "(1) the length of time of the
relationship; (2) the type of relationship; (3) the frequency of
interaction between the parties; and (4) if the relationship has
been terminated by either person, the length of time elapsed
since the termination of the relationship."
                                                                  3


in the light most favorable to the Commonwealth, see
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), there
was evidence at trial that the defendant and Stacey D. Rock
were in a parked vehicle when a witness observed an altercation
between the two of them. After they were confronted by the
witness, the defendant drove off at a high rate of speed and he
was stopped a short time later for various motor vehicle
infractions. A police officer testified that when he asked the
defendant why he had been driving "that way," the defendant
replied, "something to the nature of that he was pissed off
because he had just got in a fight with his girlfriend and that
he knew he was driving like an idiot." The defendant indicated
to the officer that Rock was his girl friend. This was the
state of the evidence when the Commonwealth rested its case.

     The defendant testified in his own defense, and Rock
testified as well. Rock said that she had met the defendant
several months before the incident. They developed a
friendship; the relationship evolved as "boyfriend-girlfriend";
and they began dating. Although they were exclusive to one
another, they did not live together. Rock testified that they
"got along beautifully. Great friends." The defendant agreed
that they had a "[f]riendship at first and then boyfriend-
girlfriend," and he described the relationship as "awesome,"
"great," and "probably the best." Rock acknowledged that their
dating ("boyfriend-girlfriend") relationship did not end
immediately after the incident.

     There also was other evidence about the defendant's
relationship with Rock. The defendant had cared for Rock while
she was recovering from a medical issue; he "nursed her back" to
health. He also drove her motor vehicle. On the day in
question, they spent "a good part of the day" together, first at
her home, and then doing errands. The altercation for which the
defendant was charged was, according to the defendant, brought
on by Rock accidentally calling him by her former boy friend's
name. Rock also insisted, both to the witness and to the police
officer, that there was no problem between her and the
defendant, and "beg[ged] them" not to arrest the defendant.

     3. Discussion. The defendant claims that the evidence was
insufficient to support a conviction under G. L. c. 265, § 13M.
Subsection (a) of the statute provides:

    "Whoever commits an assault or assault and battery on a
    family or household member shall be punished . . . ."
                                                                  4


Subsection (c) of § 13M provides:

    "'family or household member' shall mean persons who (i)
    are or were married to one another, (ii) have a child in
    common regardless of whether they have ever married or
    lived together or (iii) are or have been in a substantive
    dating or engagement relationship."

Only the last definition is at issue in this case.

     Because the defendant did not make a timely motion for a
required finding at the close of the Commonwealth's case, we
consider whether the evidence during the entire trial:

    "viewed in a light most favorable to the Commonwealth, is
    sufficient so that the [fact finder] 'might properly draw
    inferences, not too remote in the ordinary course of
    events, or forbidden by any rule of law, and conclude upon
    all the established circumstances and warranted inferences
    that the guilt of the defendant was proved beyond a
    reasonable doubt.'"

Commonwealth v. McGovern, 397 Mass. 863, 868 (1986), quoting
Commonwealth v. Chappee, 397 Mass. 508, 519 (1986). The only
issue on appeal is whether the evidence is sufficient to permit
an inference that Rock was a "family or household member," on
the ground that she and the defendant "are or have been in a
substantive dating . . . relationship." G. L. c. 265, § 13M (c)
(iii). The statute further instructs that:

    "the trier of fact shall determine whether a relationship
    is substantive by considering the following factors: the
    length of time of the relationship; the type of
    relationship; the frequency of interaction between the
    parties; whether the relationship was terminated by either
    person; and the length of time elapsed since the
    termination of the relationship."

Id. These factors are essentially identical to the factors set
forth in G. L. c. 209A to determine whether a "substantive
dating relationship" exists for purposes of that statute, which
authorizes a person involved in a "substantive dating
relationship" to obtain a civil abuse prevention order. See
G. L. c. 209A, § 1.5 See also E.C.O. v. Compton, 464 Mass. 558,

    5
       General Laws c. 209A, § 1 (e), instructs courts to
consider the following factors when determining whether a
                                                                  5


564 (2013); Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 142
(2006) ("conduct proscribed as abuse 'closely approximates the
common-law description of assault'" [citation omitted]). In
determining the sufficiency of the evidence of a "substantive
dating relationship" under G. L. c. 265, § 13M (c), and in
otherwise interpreting and applying that statue, we therefore
are guided by cases arising under c. 209A.

     As we said in C.O. v. M.M. 442 Mass. 648, 650-651 (2004),
with respect to c. 209A:

    "[b]ecause the statute enumerates four factors to be
    considered in determining the existence of a 'substantive
    dating relationship,' there is sufficient language in the
    statute to enable judges to make informed and consistent
    determinations. We need not add to this language by
    interpretation."

That is no less true under c. 265, § 13M, even though the
Commonwealth must prove the existence of such a relationship
beyond a reasonable doubt under that statute.6 Both statutes
identify the prohibited conduct and require the fact finder "to
adjudge the existence of substantive relationships by
considering [the enumerated] factors." E.C.O., 464 Mass. at
564. These factors provide "explicit standards" both to
ascertain culpability and to allow a person to conform his or
her conduct accordingly (citation omitted). See Commonwealth v.
Hendricks, 452 Mass. 97, 102 (2008). See also C.O., 442 Mass.
at 654-656 (vacating abuse prevention order where judge failed
to consider statutory factors and improperly relied on other
considerations); Brossard v. West Roxbury Div. of the Dist.
Court Dep't, 417 Mass. 183, 184-185 (1994) (sufficient evidence


"substantive dating" relationship exists for purposes of
c. 209A: "(1) the length of time of the relationship; (2) the
type of relationship; (3) the frequency of interaction between
the parties; and (4) if the relationship has been terminated by
either person, the length of time elapsed since the termination
of the relationship."
    6
       The statutes share a similar legislative purpose. "The
Legislature enacted G. L. c. 209A in 1978 to address the problem
of domestic violence." C.O., 442 Mass. at 651, citing St. 1978,
c. 447, § 2. Similarly, G. L. c. 265, § 13M, was enacted "to
establish a specific penalty for perpetrators of domestic
abuse." St. 2008, c. 534 (preamble).
                                                                   6


of "substantive dating relationship" for purposes of G. L.
c. 209A, where defendant referenced victim as his "former girl
friend" in other c. 209A proceedings, and alleged that he saw
her two or three times per week, even though she was living with
another man).7

     In this case, the evidence was sufficient to permit the
jury to find that Rock and the defendant were involved in a
"substantive dating relationship" on August 28, 2014. Both
testified that they had been involved in the relationship for
several months, and that it had developed into an exclusive
"boyfriend-girlfriend" relationship. They described their
relationship as "good" or "great." Among other things, the
defendant took care of Rock when she had a medical condition;
she allowed him to drive her vehicle; and they participated in
daily activities together, such as running errands. The
defendant had recently given Rock a "friendship ring." See
Brossard, 417 Mass. at 184-185 (sufficient evidence to establish
"substantive dating relationship where defendant referred to
victim as his "former girlfriend"; saw her "two to three times a
week"; and correspondence "reveal[ed] an emotional relationship
which entailed substantially more than a few casual dates").8

     Conclusion. The evidence warranted a finding beyond a
reasonable doubt that the defendant was involved in a
"substantive dating relationship" with the person he was charged
with assaulting, in violation of G. L. c. 265, § 13M (c), and
therefore that conviction is affirmed.

                                     So ordered.

    7
       The factors enumerated in the proviso of G. L. c. 265,
§ 13M (c), are not themselves elements of the offense. There
does not need to be evidence as to each factor, let alone proof
beyond a reasonable doubt as to any one or more of them. They
are simply the legislative criteria that the fact finder must
consider in determining whether the "substantive dating
relationship" element has been proved. It is enough that the
evidence on these factors, taken as a whole, warrants a finding
of a substantive dating relationship beyond a reasonable doubt.
    8
       The fact that   there was less evidence on the "frequency of
interaction" between   the defendant and Rock, and more evidence
as to "the length of   time of [their] relationship" and "the type
of relationship," is   not dispositive. See note 7, supra. The
evidence, taken as a   whole, was sufficient to warrant the
requisite finding of   a substantive dating relationship.
                                                                  7




     Michael A. Waryasz for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
     Max Bauer, for Tyrone Stampley, amicus curiae, submitted a
brief.
