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14-P-364                                                Appeals Court

                COMMONWEALTH    vs.   MICHAEL SYLVIA.


                             No. 14-P-364.

           Bristol.       January 9, 2015. - May 5, 2015.

            Present:    Katzmann, Sullivan, & Blake, JJ.


Arrest. Resisting Arrest.      Practice, Criminal, Required
     finding.



     Indictment found and returned in the Superior Court
Department on October 26, 2012.

    The case was tried before Robert J. Kane, J.


     Thomas C. Foley for the defendant.
     Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.


    KATZMANN, J.      Having been convicted by a Superior Court

jury of resisting arrest, the defendant appeals.        He contends

that the evidence was insufficient to support a conviction under

the second prong of the resisting arrest statute, "using any

other means which creates a substantial risk of causing bodily
                                                                    2


injury to such police officer or another."   G. L. c. 268,

§ 32B(a)(2), inserted by St. 1995, c. 276.   We affirm.

    Background.    Under the familiar standard, on appeal the

evidence is viewed in the light most favorable to the

Commonwealth to determine whether "any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."   Commonwealth v. Latimore, 378 Mass. 671, 677

(1979) (citation omitted).

    Here, the analysis begins when Officer Kenneth Mendes

advised the defendant that he was subject to arrest, and

continues through the defendant's flight and physical resistance

to the officer's efforts to place the defendant into physical

custody.   The officer first made contact with the defendant, for

whom he had an arrest warrant, when, while patrolling in a

cruiser with his partner in a high crime area, he noticed the

defendant walking on a New Bedford street shortly before 2 A.M.

The officer exited the cruiser and told the defendant that he

had lawful authority to place him under arrest.   The defendant,

saying "no" and shaking his head in a manner understood by the

officer to mean "no," fled on foot.   The officer observed the

defendant continuously hold the waistband of his pants with one

hand as he fled.   Seeking to immobilize the defendant, the
                                                                       3


officer, while chasing him, deployed his "Taser"1 to no effect.

Eventually, the officer was able to grab onto the defendant's

shoulder and jacket, but the defendant was able to turn and

shuck the jacket.      The foot pursuit continued, as the defendant

maintained his hold on the waistband of his pants, through a

parking lot and onto a public roadway under construction.      There

was no asphalt on the roadway.      The conditions of the roadway

included excavated dirt, steel plates, compacted dirt, and other

construction site objects, such as barrels.      As the defendant

ran across the public roadway, he threw a metal object onto the

street.2      The defendant continued to flee but no longer held the

waistband of his pants.      He ran onto the sidewalk, crossed the

public roadway again, and went into the aforementioned parking

lot.       The officer was able to catch the fatigued defendant and

put him on the ground.      On the ground, the officer attempted to

roll the defendant onto his stomach to apply handcuffs, but the

defendant repeatedly pulled his arms away and moved his hands.

As the "struggle" continued and the defendant continued pulling

away, the officer successfully deployed his Taser to gain the

       1
       The term Taser is "used for a gun that fires electrified
darts to stun and immobilize a person." Merriam-Webster's
Collegiate Dictionary 1279 (11th ed. 2005).
       2
       A firearm was retrieved where the officer had observed the
defendant throw a metallic object. It was tested for
fingerprints but no usable prints were found. The defendant was
acquitted by the jury of possession of a firearm without a
firearm identification card.
                                                                   4


defendant's compliance.   The officer was then able to place

handcuffs on the defendant.

    Discussion.   A defendant resists arrest if "he 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 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."    G. L.

c. 268, § 32B(a), inserted by St. 1995, c. 276.   The defendant

concedes that his use of physical force would satisfy the

elements of resisting arrest under G. L. c. 268, § 32B(a)(1).

However, in his jury charge -- which did not draw objection from

either the Commonwealth or the defendant -- the judge restricted

the Commonwealth to proof of resistance "by using means which

created a substantial risk of causing bodily injury to Officer

Mendes."   As the Commonwealth acknowledges, its proof must have

been sufficient to sustain a conviction on the theory of

liability on which the case was submitted to the jury.    See

Commonwealth v. Rodriguez, 58 Mass. App. Ct. 610, 621 (2003).

We thus examine the sufficiency of the evidence under G. L.

c. 268, § 32B(a)(2).

    The focus of prong two of the resisting arrest statute is

on "criminalizing the 'creation' of the risk" (emphasis
                                                                      5


supplied).   Commonwealth v. Montoya, 457 Mass. 102, 105 (2010).

In assessing the sufficiency of the evidence, the analysis is

not a static dissection of factors in isolation but an

evaluation informed by the dynamic fullness of the totality of

the circumstances.   Here, that totality encompasses the rapidly

evolving, uncertain, and tense environment of foot pursuit.      To

be sure, flight from arrest, alone, does not create a

substantial risk of bodily injury to the arresting officer or

another.   See id. at 104 & n.4.   However, the circumstances of

flight from arrest can create such a risk.    Id. at 104-105.

Here, the defendant had been told that he was going to be

arrested, and his ensuing actions and flight were clearly in

response to that communication.    Contrast Commonwealth v. Grant,

71 Mass. App. Ct. 205, 209 (2008) ("During the defendant's

flight from the police, there was no evidence to prove that he

understood that the officers were effecting an arrest.   He was

simply running away from them").   The defendant twice led the

pursuing officer in the late night darkness onto a dug-up,

public roadway under construction with various terrain and

object obstacles that posed a substantial risk of injury.3

Moreover, motor vehicles could have been traveling on that


     3
       Indeed, when the officer's partner sought to drive the
cruiser to cut off the fleeing defendant's pathway, the cruiser
slid on the gravel and steel plates on the dug-up road, hitting
the brick facade of a café.
                                                                   6


roadway, to the danger of the officer in hot pursuit.    That no

pedestrians or vehicles were observed at 2 A.M. does not mean

that there was no substantial risk of bodily injury from

potential traffic on a street that is ordinarily busy during

daytime and nighttime hours.   See Commonwealth v. Montoya, supra

at 105-106 (even where pursuing officers chose not to scale a

fence and jump twenty feet into shallow water, that they did not

actively subject themselves to risk did not defeat a finding of

"substantial risk of bodily injury").

    Furthermore, "conduct . . . [that] represents an active,

physical refusal to submit to the authority of the arresting

officers, and opposition to their efforts to effect the arrest,"

constitutes circumstances that can create a substantial risk of

injury to the arresting officer.   Commonwealth v. Maylott, 65

Mass. App. Ct. 466, 469-470 (2006).     "While the defendant's

exertion of force in an attempt to prevent his arrest may not

have overcome the police officers, the circumstances . . .

presented a substantial risk of injury to them."     Ibid.   In

Commonwealth v. Grandison, 433 Mass. 135, 144-145 (2001), the

defendant stiffened and pulled his arms free as the officers

were attempting to handcuff him.   The defendant's action in

Grandison, "especially at the moment he freed his arm," was

sufficient for a rational trier of fact to conclude that the

defendant by "any other means . . . created a substantial risk
                                                                       7


of causing bodily injury to the police officers."    Id. at 145

(quotations omitted).    See Commonwealth v. Lender, 66 Mass. App.

Ct. 303, 306 (2006) ("The defendant's resistance to being

handcuffed and placed in the cruiser is sufficient resistance to

amount to . . . a means creating a substantial risk of causing

bodily injury to the arresting officer" [quotations omitted]).

Here, the first time the officer caught up with the defendant,

the officer grabbed onto the jacket worn by the defendant and a

"scuffle" ensued, during which the defendant evaded the

officer's effort to effect an arrest, as the defendant turned

and "wiggled out" of the jacket.    The second time the officer

caught up with the defendant, they were on the ground and there

was a "struggle" to gain control of the defendant's arms as he

"kept pulling away" from the officer.    Here, as in Commonwealth

v. Grandison, supra at 144-145, the officer's "characterization

of the defendant's behavior as 'resisting' or 'struggling'" is

not mere opinion but grounded in the evidentiary narrative.       It

was only after the officer deployed the Taser that he was able

to overcome the defendant's "resistance" and place handcuffs on

him.

       We conclude that a rational trier of fact could have found

the defendant's conduct presented a substantial risk of bodily

injury to the officer.

                                     Judgment affirmed.
