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15-P-411                                               Appeals Court

               COMMONWEALTH   vs.   MELVIN LARK, JR.


                No. 15-P-411.       July 13, 2016.


Assault and Battery. Parent and Child, Discipline.        Practice,
     Criminal, Instructions to jury.


     Following a jury trial in the District Court, the
defendant, Melvin Lark, Jr., was convicted of assault and
battery. The victim was his fiancée's eight year old son. On
appeal, the defendant contends that the Commonwealth presented
insufficient evidence to disprove his parental privilege defense
and, in the alternative, that the judge's instruction on
parental privilege was erroneous.1 We affirm.

     1. Background. A school counsellor at the victim's school
informed the victim's mother that he needed a ride home because
he had been involved in an altercation with another student.
The mother, in turn, asked the defendant to pick up the victim
from the school. Upon the defendant's arrival, the victim
refused to leave the school and then protested getting into the
defendant's Jeep. A passerby noticed the defendant yelling at
the victim. She watched as he got into the back seat and the
defendant got into the driver's seat. Through the tinted
windows, the passerby saw the defendant reach into the back seat
and strike the victim several times. The victim had his hands
up as the Jeep was "rocking." In addition, the school
counsellor saw the commotion in the Jeep from a school window.
She ran outside, where she saw the defendant hitting the victim

     1
       Neither party contends that the defendant did not stand in
loco parentis to the victim. See Commonwealth v. Torres, 442
Mass. 554, 568 (2004), citing G. L. c. 265, § 13J(a). See also
Commonwealth v. Packer, 88 Mass. App. Ct. 585, 590-592 (2015).
                                                                   2


as he moved around in the back seat. The victim eventually
jumped out of the Jeep and ran back to the school as the
defendant drove away. At some point later, a friend of the
victim's mother came to collect him and noticed that he had a
scratch over his eye.

     2. Parental privilege defense. Following the defendant's
conviction, the Supreme Judicial Court issued Commonwealth v.
Dorvil, 472 Mass. 1 (2015), which refined the common-law
parental privilege affirmative defense to a charge of assault
and battery. The Dorvil framework provides that "a parent or
guardian may not be subjected to criminal liability for the use
of force against a minor child . . . provided that (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. at 12. "[E]ach of the three
prongs constitutes a question for the trier of fact," and the
burden is on the Commonwealth to disprove at least one prong
beyond a reasonable doubt. Id. at 13.

     3. Sufficiency of the evidence. Citing the framework set
forth in Dorvil, the defendant argues on appeal that the judge
should have allowed his motion for a required finding of not
guilty because the Commonwealth presented insufficient evidence
to disprove each prong of the parental privilege framework. We
disagree. Viewing the facts presented in the light most
favorable to the Commonwealth, Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), a reasonable juror could have found
that repeatedly striking the victim with sufficient force to
rock a Jeep back and forth was unreasonable, and not for the
purpose of safeguarding or promoting the child's welfare. "As
with other affirmative defenses, . . . the Commonwealth bears
the burden of disproving at least one prong of the defense
beyond a reasonable doubt." Dorvil, supra. Having presented
sufficient evidence to disprove at least two of the Dorvil
prongs, the judge properly denied the defendant's motion.

     4. Parental privilege instruction. At trial, the
defendant requested an instruction on the defense of parental
privilege, which the judge allowed. The instruction tracked the
language of instruction 5.11 of the Massachusetts Superior Court
Criminal Practice Jury Instruction (2013), and the language of
Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990), an earlier
                                                                  3


case in which the court makes reference to the defense.   The
instruction given here provided as follows:

    "A person acting in the position of a parent and who has
    assumed the responsibility of a parent may use reasonable
    force to discipline his minor child for the purposes of
    safeguarding or promoting the child's welfare. When I talk
    about disciplining, I'm talking about those actions that
    are taken by a person or one acting in the position of a
    parent to control a child or to conform the child's
    behavior to a set of rules or pattern[s]. . . , this parent
    -- this person acting in the parent's position may not of
    course use excessive force as a means of discipline or
    chastising and it is up to the Commonwealth to prove beyond
    a reasonable doubt that the defendant was not so acting."

     On appeal, the defendant argues that a new trial is
required because the instruction did not precisely match the
language in Dorvil. In particular, he challenges the omission
of the phrase "including the prevention or punishment of the
minor's misconduct" following the instruction on safeguarding or
promoting the child's welfare, Dorvil, supra at 12, as well as
the addition of the phrase, not in Dorvil, that the action must
be to "conform the child's behavior to a set of rules or
pattern[s]." These deviations, the defendant argues, eliminated
the possibility that he could be lawfully using physical force
to punish the victim as well as to control him. The defendant
further challenges the judge's failure to capture the "core
concept" of Dorvil, i.e., the Commonwealth's burden to disprove,
beyond a reasonable doubt, at least one prong of the three-prong
framework. Because there was no objection to the instruction as
given, we review any error for a substantial risk of a
miscarriage of justice, and find no such risk.

     The judge's instruction incorporated the first two prongs
of the Dorvil framework: that reasonable or not excessive force
may be used, and that the force must be applied for the purpose
of safeguarding or promoting the child's welfare, including
controlling the child or conforming the child's behavior to a
set of rules. The omission of the concept of "punishment" is
inconsequential given the judge's choice of words. Physical
discipline, by its very nature, is a type of punishment for
misconduct. Whether it is privileged is a matter of degree
concerning the force applied. That concept is captured in the
instruction given. As for the Commonwealth's burden, while we
agree that the judge's language could have been more artful, the
jurors were fairly informed that the Commonwealth was required
                                                                   4


to disprove, beyond a reasonable doubt, that the defendant was
acting within the bounds of the privilege. Finally, as for the
omission of the third prong of the framework, we conclude that
it had no material effect on the verdict where the Commonwealth
presented ample evidence to disprove that the force used was
reasonable, or for the purpose of safeguarding or promoting the
child's welfare. See Commonwealth v. Randolph, 438 Mass. 290,
297 (2002).2

                                   Judgment affirmed.


     Rachel T. Rose for the defendant.
     Catherine P. Sullivan, Assistant District Attorney, for the
Commonwealth.




    2
       In light of the new framework on the parental privilege
defense set forth in Dorvil, we recommend that the District
Court Committee on Criminal Proceedings draft new model jury
instructions consistent with the language of that case. See
Commonwealth v. Packer, 88 Mass. App. Ct. 585, 593 n.11 (2015).
