NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

13-P-928                                                Appeals Court

              COMMONWEALTH   vs.   CHRISTINE M. PACKER.


                             No. 13-P-928.

           Hampden.     May 6, 2014. - October 27, 2015.

             Present:   Berry, Milkey, & Maldonado, JJ.

Assault and Battery. Parent and Child, Discipline. Child
     Abuse. Practice, Criminal, Affirmative defense, Request
     for jury instructions, Instructions to jury, Presumptions
     and burden of proof.


     Complaint received and sworn to in the Westfield Division
of the District Court Department on April 1, 2011.

    The case was tried before Philip A. Contant, J.


     Jessica L. LaClair for the defendant.
     Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.    Following a jury trial in the District Court,

the defendant, Christine M. Packer, was convicted of assault and

battery of her fourteen year old stepdaughter (daughter),

pursuant to G. L. c. 265, § 13(A)(a).        The daughter's father was

likewise charged, and there was a joint trial.        Both defendants

requested a jury instruction on the affirmative defense of
                                                                     2


parental discipline.    At the conclusion of the evidence, the

judge instructed the jury that they could consider excusing the

father's actions as reasonable parental discipline, but that

they could not do so with regard to the defendant.       The jury

found the defendant guilty, while acquitting the father.       On

appeal, the defendant argues that this differential treatment

constituted reversible error.     Under the particular

circumstances presented, we agree.

     Background.    The family.   At the time of the incident, the

daughter lived with her father, the defendant, and the

daughter's eight year old half-sister (born of the father and

the defendant).    The father and the defendant were married, and

the jury reasonably could have inferred that the couple had been

together for at least eight years (the age of the half-sister).1

The father was never married to the daughter's biological

mother, and the daughter never lived with her.     In fact, there

was no evidence whatsoever that the daughter's biological mother

had any ongoing parenting role in her life.

     With the biological mother playing no apparent role in the

daughter's life, the daughter viewed the defendant as her

"mother" or "mom" (as she repeatedly referred to the defendant


     1
       In assessing whether the requested instruction was
warranted, we view the relevant trial evidence in the light most
favorable to the defendant. See Commonwealth v. Randolph, 438
Mass. 290, 299 (2002).
                                                                    3


in her trial testimony).    Despite this, or perhaps because of

it, the adolescent daughter's relationship with the defendant

was somewhat volatile.     The daughter testified that she

simultaneously loved and could not "stand" the defendant.    When

the father's counsel tried to get her to acknowledge that she

did not consider the defendant as her "mother," the daughter

denied this.

     The daughter fought with both her father and the defendant

from time to time.   She acknowledged that at least some of that

conflict was over whether she "lied to them or told the truth."

She also acknowledged multiple instances of her lying to the

defendant or others.2    The events that gave rise to the assault

and battery charges arose in this context.

     The incident.   On March 30, 2011, the daughter went into

the family's kitchen at approximately 5:30 A.M. to eat breakfast

before school.   The defendant was already there, where she was

     2
       In her testimony, the daughter admitted to lying to the
defendant, school officials (Q.: "You lied to the school
officials, correct?"; A.: "Yes."), and the police (Q.: "And
it's fair to say you didn't tell [the investigating officer] the
truth, correct?"; A.: "Yes."). In fact, she "admitted to at
least being inaccurate on a minimum of five occasions" in the
testimony she had given at trial. The daughter also admitted
that in February of 2012 (that is, some ten months after the
incident), she wrote the father a letter in which she stated,
"When this is all resolved, I hope you'll be able to believe and
trust me." The jury could have inferred from such a statement
that the daughter was acknowledging that she had given her
parents reason not "to believe and trust" her. There was ample
evidence on which reasonable jurors could conclude that the
daughter lied on a persistent basis.
                                                                    4


making the daughter a boxed lunch for school.    The two had a

conversation in which the defendant "very nicely" offered the

daughter some fruit that she was cutting up.    At one point, the

defendant noticed that some cheese she had expected to find in

the refrigerator was missing, and she asked the daughter whether

she had eaten it.   The daughter initially denied that she had

done so.   However, after being challenged by the defendant about

the truthfulness of that denial, the daughter admitted to having

eaten the cheese.

    According to the daughter's testimony, the defendant

proceeded to strike the daughter's right ear with her hand

causing it to bleed.   In addition, the defendant threw the

daughter's cellular telephone across the room.    After the

daughter went to her bedroom, the defendant entered the bedroom

and grabbed and pulled the daughter's hair.    The defendant and

the father then spoke privately.   Although there was no direct

testimony about what the two said to each other, the daughter

testified that the defendant went to get the father to "settle

the dispute."   The father proceeded to the daughter's bedroom

where -- according to the daughter's testimony -- he twice

pretended to punch her in the face and then actually did so.

    Later that day, the daughter reported the incident to her

ninth grade adjustment counselor at a regularly scheduled

meeting.   The counselor did not notice any physical marks on the
                                                                   5


daughter when she first arrived.   However, after the daughter

reported the incident, the counselor carefully examined the

daughter's head and was able to observe a swollen lip and cut

gum (in the area where the father allegedly "punched" her), and

a "red like scratch mark" on the daughter's right ear (where the

defendant allegedly struck her).   An investigation and these

charges ensued.

     The jury instruction.   When the defendant and the father

requested a parental discipline instruction, the Commonwealth

argued that neither one was entitled to such an instruction.

Specifically, the Commonwealth argued that no reasonable jury

could conclude either that the defendant and the father were

engaged in disciplining the daughter, or -- even if their

actions did amount to discipline -- that they employed only

"reasonable" force.   The judge ultimately rejected that

argument, and he therefore decided to give a parental discipline

instruction for the father, the daughter's legal parent.    He

instructed the jury that "[a] parent may use reasonable force to

discipline his minor child . . . [but] may not use excessive

force as a means of discipline or chastisement."3


     3
       The judge appears to have relied on instruction 3.15 of
the Massachusetts Superior Court Criminal Practice Jury
Instructions (Mass. Cont. Legal Educ. 1st Supp. 2003), which
reads in full as follows:

     "PARENTAL DISCIPLINE
                                                                     6


     Notably, in opposing a parental discipline instruction for

both the defendant and the father, the Commonwealth did not

differentiate between the two.   Indeed, the prosecutor himself

earlier in the trial referred to the defendant as "the mother"

and used the term "their . . . daughter" in reference to the

defendant and the father.4   Nevertheless, the judge sua sponte

decided to treat the defendant differently from the father.     He

not only denied the defendant's request for the same

instruction, but also instructed the jury that "you may consider

this principle [of parental discipline] only in the case against

[the codefendant father], not in the case against [the

defendant]."   As discussed infra, the judge read Commonwealth v.

O'Connor, 407 Mass. 663 (1990) (O'Connor), as commanding this

result.   The defendant timely objected to this differential

treatment.




     "A parent, or one acting in the position of a parent and
     who has assumed the responsibilities of a parent, may use
     reasonable force to discipline (his/her) minor child.
     However, a parent may not use excessive force as a means of
     discipline or chastisement."

We note that in 2013, although the language did not change, this
instruction became instruction 5.11.
     4
       To the extent that anyone at trial emphasized the
defendant's status as a mere stepparent, it was the father's
counsel. Relying in part on an allusion to Cinderella, the
father's counsel suggested to the jury that the daughter so
wanted to escape living with the defendant that she lied about
the assaults.
                                                                      7


    Discussion.    In Commonwealth v. Dorvil, 472 Mass. 1, 2, 12

(2015) (Dorvil), the Supreme Judicial Court expressly recognized

a common-law parental privilege to use reasonable force to

discipline a minor child.    The court laid out the contours of

such a defense as follows:

    "[A] parent or guardian may not be subjected to criminal
    liability for the use of force against a minor child under
    the care and supervision of the parent or guardian,
    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.   Moreover, "[a]s with other affirmative defenses,

where the parental privilege defense is properly before the

trier of fact, the Commonwealth bears the burden of disproving

at least one prong of the defense beyond a reasonable doubt."

Id. at 13.   On the trial record established in Dorvil, which

included evidence that the defendant there administered a

"smack" to the clothed bottom of a two year old, the court

determined the evidence insufficient as a matter of law to

support the defendant's conviction of assault and battery.      Id.

at 13-15.

    In the case before us, the defendant's principal claim is

that the judge erred by instructing the jury that they could
                                                                   8


consider a parental discipline defense only as to the father.5

The judge denied the defendant the requested instruction solely

because she was not the daughter's legal parent and -- in the

judge's view -- had not sufficiently demonstrated that she was

acting in loco parentis.   See O'Connor, 407 Mass. at 668 (a

nonparent seeking to secure a parental discipline instruction

bears the burden of showing "that he or she stands in loco

parentis to the child . . . [and this in turn requires a showing

that the] person . . . assume[s] all the duties and obligations

of a parent toward the child").

     Commenting on O'Connor, the judge stated that being a

stepparent by itself is insufficient to establish that one is

acting in loco parentis and that instead "you'd almost have to

take over for the actual parent."   The judge then highlighted

that here, "the actual parent [presumably, the father] lived in

the same household."   The judge added that "there's no evidence

or basis on which a jury could decide that [the defendant] stood

in local parentus [sic] for this child."

     As an initial matter, we consider whether Dorvil left open

the possibility that one acting in loco parentis may raise a

     5
       There is no merit to the defendant's separate argument
that the evidence of an assault and battery was insufficient as
a matter of law. Viewing the trial evidence in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), there was ample basis upon which
jurors could have concluded that the defendant's hitting the
daughter did not constitute reasonable parental discipline.
                                                                      9


parental discipline defense.    The Commonwealth accurately

observes that Dorvil states that such a defense is available to

a "parent or guardian."     472 Mass. at 12.   However, Dorvil

involved a defendant who was the child's legal parent, and it

therefore unsurprisingly did not address the rights of someone

acting in loco parentis.     To be sure, at the time the Supreme

Judicial Court resolved O'Connor, it had not squarely decided

that a common-law parental discipline defense existed for

anyone.     However, the analytical premise of O'Connor is that one

serving in loco parentis has whatever rights a legal parent has.

We see nothing in Dorvil's shorthand reference to "parent or

guardian" as intended to undo that premise.

    The defendant urges us to adopt a general presumption that

stepparents act in loco parentis with regard to their spouses'

children.    We decline to do so.   The mere fact that one is

married to a legal parent obviously may say little about the

nature and extent of the particular parenting role that he or

she plays, and that role presumably will vary from household to

household.    See O'Connor, 407 Mass. at 668 ("an in loco parentis

relationship does not arise merely because someone in a position

of stepparent has taken a child into his or her home and cares

for the child").

    At the same time, we consider it equally self-evident that

stepparents are not precluded from playing an in loco parentis
                                                                    10


role just because one of the children's legal parents also

resides in the same household (as is typically the case).

Massachusetts cases have long recognized the pervasiveness of

diverse family structures, including the blended family.      For

example, in Mulhern v. McDavitt, 16 Gray 404, 406 (1860), the

Supreme Judicial Court observed that "[i]n this commonwealth it

is quite common, upon second marriages, that the wife's children

are received into the family as members; and such an arrangement

must tend to promote the happiness of the mother and the welfare

of the children."     The court noted that a stepparent, by

receiving a spouse's child into the family, may stand in loco

parentis, with the "rights and obligations of a parent," and

further noted that "the policy of the law is to encourage an

extension of the circle and influence of the domestic fireside,

and its presumptions are in favor of the existence of this

relation."   Ibid.6   Massachusetts case law firmly recognizes and

affirms the reality that many children live in households headed

by at least one person who, although performing a critical

parenting role, is neither biologically nor legally related to

them.   See E.N.O. v. L.M.M., 429 Mass. 824, 829, cert. denied,

    6
       See Roush v. Director of the Div. of Employment Security,
377 Mass. 572, 575-576 (1979), quoting from Coakley's Case, 216
Mass. 71, 74 (1913) ("The voluntary assumption of the
obligations of parenthood toward children of a spouse by another
marriage is one favored by the law. They may be included under
the descriptive word 'family'").
                                                                    11


528 U.S. 1005 (1999) (observing, in the context of same-sex

couples prior to the recognition of same-sex marriage rights,

that a "child may be a member of a nontraditional family in

which he is parented by a legal parent and a de facto parent").

Massachusetts statutes, too, recognize the important parental

role that stepparents and others can serve.7

     Against this rich backdrop, the meaning and reach of the

dicta in O'Connor come into sharper focus.     Although the court

stated there that an "[i]ntent to replace a natural parent is

never to be lightly inferred," it did not purport to establish a

bright line test for resolving whether in loco parentis status

applies.   O'Connor, 407 Mass. at 668.   The defendant in O'Connor

was a mere boy friend of the child victim's mother who resided

in the same home in an "impermanent living arrangement," and who

made no apparent financial contribution to the household.     Id.

at 664, 668-669.   In addition, the child's biological father (in

addition to the mother) continued to play an active parenting


     7
       See, e.g., G. L. c. 209B, § 5, inserted by St. 1983,
c. 680, § 1 (rights of "persons acting as parents" to notice and
the opportunity to be heard in child custody proceedings); G. L.
c. 112, § 12E 1/2, inserted by St. 2012, c. 244, § 10 (mandated
notification of "other person[s] having custody or control of a
minor child" where the minor is treated for drug or alcohol
overdose); G. L. c. 175, § 123 (stepparents are authorized to
include stepchildren as insured family members on joint life
insurance policies); G. L. c. 118, § 1 (stepparents are included
within the definition of parent for the purposes of public
assistance); G. L. c. 119, § 21 (stepparents are included within
the definition of relatives under the child protection statute).
                                                                    12


role in the child's life.    Id. at 669.   It was under these

circumstances that the court concluded that "there was no basis

on which a jury could decide that the defendant stood in loco

parentis to the victim."    Ibid.8

    The adult-child relationship before us bears little

resemblance to the one at issue in O'Connor.     Instead of being

an itinerant boy friend or girl friend, the defendant was the

child's long-term stepparent who lived full time in the same

household.   Moreover, as noted, there was no evidence that the

daughter's biological mother played any ongoing role in her

life.   Significantly, the daughter viewed the defendant as her

"mother," providing robust evidence that the defendant served

that role in the family.    Cf. Commonwealth v. Torres, 442 Mass.

554, 568 (2004) (fact that children referred to the defendant as

"Daddy" signified their "understanding that the defendant had a

parental role in the household").    Although the precise nature

of the relationship between the daughter and the defendant was

not fully developed at trial, the thrust of the evidence was

that the defendant was part of a stable family unit and that she

    8
       It was also in this context that the court commented that
"[t]he key factors to a threshold showing of in loco parentis
status are the intent to take over the position of parent, and
the discharge of support and maintenance responsibilities toward
the child." O'Connor, 407 Mass. at 668. We do not interpret
that passage as precluding fact finders from inferring a
defendant's "intent to take over the position of parent" from
her actions and circumstances. Nor do we view it as requiring a
defendant to prove that she is the family "bread winner."
                                                                   13


functionally served as mother and coparent to the daughter.      In

our view, there was a sufficient basis on which the jury could

have concluded that the defendant served an in loco parentis

role.9    See O'Connor, 407 Mass. at 668, citing with apparent

approval Gribble v. Gribble, 583 P.2d 64, 66, and see 65-68

(Utah 1978) (where the former stepfather had "lived with the

child from the time he was two months old . . . and . . . the

child . . . had no contact with his biological father," a

hearing was required to determine whether an in loco parentis

relationship existed entitling the stepfather to visitation

rights).10   Any doubt as to whether the defendant was playing an



     9
       The Commonwealth is incorrect in asserting that the
defendant cannot claim in loco parentis status and the
concomitant parental discipline instruction where she did not
take the stand or otherwise put on her own case. The defendant
was entitled to such an instruction if "any view of the evidence
would provide support for an affirmative defense." Commonwealth
v. Monico, 373 Mass. 298, 299 (1977). See Commonwealth v.
Eberle, 81 Mass. App. Ct. 235, 239 (2012) (evidence supporting
an affirmative defense may come entirely from the Commonwealth's
case). Nor was the defendant precluded from requesting the
instruction by her taking the position that she never in fact
struck the daughter. See generally Commonwealth v. Callahan,
401 Mass. 627, 636 (1988) (recognizing that it can be a
reasonable defense strategy for counsel to argue only one theory
of defense to the jury and to leave it to the judge to instruct
them on another).
     10
       See also Commonwealth v. Clark, 393 Mass. 361, 366
(1984), which concerned a nonparent's potential criminal
liability for failing to obtain medical care for his partner's
child. The court reversed the dismissal of a criminal
indictment, declining to hold on the undeveloped record that
"only a parent, guardian or person entrusted with legal custody
                                                                   14


in loco parentis role should have been left to the jury as fact

finder.11

     The Commonwealth asks us to affirm on the ground that the

defendant was not entitled to a parental discipline instruction

even if she had been serving in loco parentis.    Its contention

that there was "no evidence" that the defendant was engaged in

discipline is simply at odds with the record.    There was

evidence that the daughter had a history of conflict with her

parents over whether she lied to them, that she had given her

parents reason not "to believe and trust" her, that she lied on

a persistent basis, and that the defendant in fact struck her in

direct response to her having admitted just such a lie.      On the

record before them, it was open for the jury to find (had they

been so instructed) that the defendant's actions were

"reasonably related to the purpose of safeguarding or promoting

the welfare of the minor, including the prevention or punishment




of a child" may have legal duties with regard to a child in the
same household.
     11
       This could have been accomplished by giving the full
model parental discipline instruction available at the time,
which referred to a "parent, or one acting in the position of a
parent and who has assumed the responsibilities of a parent."
See note 3, supra. Presumably, the model instruction will be
modified to include the additional teachings of Dorvil.
                                                                 15


of the minor's misconduct [here, the daughter's repeated

lying]."12   Dorvil, 472 Mass. at 12.

     The Commonwealth principally contends, as it did below,

that the defendant struck the daughter out of anger or

frustration, and that she therefore cannot claim that she was

engaged in discipline at all.   However, the Supreme Judicial

Court rejected just such an argument in Dorvil, ruling that the

viability of a parental discipline defense should not turn on

the parent's emotional state.   See id. at 13-14 (expressly

abrogating dicta in Commonwealth v. Rubeck, 64 Mass. App. Ct.

396, 400-401 [2005]).   As the court explained, "It is

understandable that parents would be angry at a child whose

misbehavior necessitates punishment, and we see no reason why

such anger should render otherwise reasonable uses of force

impermissible."   Dorvil, 472 Mass. at 14.

     The Commonwealth additionally argues that the defendant

(and the father) should not have been allowed to raise a

parental discipline defense because the amount of force they

used was excessive as a matter of law.   We are not unsympathetic

to this argument, especially with regard to the father.    See

Commonwealth v. Torres, 442 Mass. at 568-569 n.11 (parental

     12
       The evidence supporting an affirmative defense need not
come from a defense witness. See note 9, supra. In assessing
whether a jury instruction was warranted, the question is
whether "any view of the evidence would provide support for an
affirmative defense." Commonwealth v. Monico, 373 Mass. at 299.
                                                                   16


discipline instruction was not warranted where the evidence of

physical abuse by the parent was so extreme that no reasonable

jury could have found it justified).   However, viewing the

evidence in the light most favorable to the defendant,

reasonable jurors could have concluded on this record that she

did not "cause[], []or create[] a substantial risk of causing,

physical harm (beyond fleeting pain or minor, transient marks),

gross degradation, or severe mental distress."   Dorvil, 472

Mass. at 12.   In this regard, we note that although the jury

evidently concluded that the defendant touched the daughter in

some fashion, the degree of force she used was hardly

definitively established, especially where the corroborating

testimony described the resulting injury only as a "scratch."13

While there is considerable force to the Commonwealth's position

that the defendant's behavior should not be viewed as reasonable

parental discipline, her actions were not so out of bounds as to

exclude such a defense from the jury's consideration.14   In our


     13
       Police photographs of the daughter's injuries were never
entered in evidence because the Commonwealth failed to turn over
the photographs in timely discovery. Our dissenting colleague
has not explained how, even if the jurors credited the testimony
that the daughter suffered a "scratch," they were precluded as a
matter of law from finding that the daughter suffered only a
"minor, transient mark[]." Dorvil, 472 Mass. at 12.
     14
       In Dorvil, the court concluded, as a matter of law, that
a parent cannot be convicted of assault and battery for
disciplining a disobedient two year old child by "smack[ing]"
her on a clothed bottom. 472 Mass. at 13. Our dissenting
                                                                  17


view, the judge did not err in concluding -- after considerable

reflection -- that were the defendant acting in loco parentis,

it would have been for the jury to weigh her parental discipline

defense.15

     Moreover, even if neither codefendant were entitled to a

parental discipline instruction, the judge's differential

treatment of the two similarly situated codefendants caused

fundamental unfairness to the defendant and independently

constituted error.   By treating the defendant and the father

differently in a manner not warranted by the evidence, the

judge's instructions tended to invite the jury to focus on the

defendant as the more culpable party.   Cf. United States v.

Brandon, 17 F.3d 409, 453 (1st Cir.), cert. denied sub nom.

Granoff v. United States, 513 U.S. 820 (1994) (discussing the

difficult choices trial judges face in fashioning jury


colleague urges that we hold, again as a matter of law, that
disciplining a disobedient fourteen year old by striking her ear
cannot constitute reasonable parental discipline. If we were so
to conclude, one would be left to wonder what role, if any,
juries are to play in resolving what constitutes reasonable
parental discipline.
     15
       The trial judge in fact initially expressed his
reservations about giving either party such an instruction,
stating that he was "not convinced at this point that there's
sufficient evidence to raise this disciplinary defense."
However, as noted, the judge ultimately provided the father the
requested instruction, and he deprived the defendant of the
instruction solely because of his view that she could not show
in loco parentis status. Thus, the judge ultimately rejected
the Commonwealth's argument that the evidence was insufficient
to raise a parental discipline defense.
                                                                   18


instructions in multiple defendant cases and the potential

dangers of inadvertently "turn[ing] the spotlight" on one

defendant).

     The defendant's claim of error was fully preserved, and the

only remaining question is whether the faulty instructions

constituted prejudicial error.   The father received the benefit

of the instruction, and the jury acquitted him even though the

evidence strongly suggests that, if anything, he struck the

daughter with more force than did the defendant.   Under these

circumstances, we "cannot say, with fair assurance . . . that

the judgment was not substantially swayed by the error."

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994)

(quotation omitted).16   In any new trial, the judge will be free

to revisit whether a parental discipline instruction is

warranted on the evidence presented.

                                    Judgment reversed.

                                    Verdict set aside.




     16
       The defendant also asserts error in the prosecutor's
closing. We need not address that claim, which is unlikely to
arise in any retrial.
     BERRY, J. (dissenting).   The majority opinion, I

respectfully submit, misapprehends the law of affirmative

defenses in this very important area of parental discipline.

One who invokes the affirmative defense of parental discipline

has a burden to offer some evidence warranting such an

affirmative defense instruction -- either by cross-examination

in the direct case or in a defense case.   That was not done

here.   Instead, the defense case rested on a theory of

fabrication.   See note 4, infra.

     The effect of the majority opinion, I believe, may have

untoward consequences.   It may be read to mean a parental

discipline instruction is warranted in any case involving the

hitting of a child for any/every lie, major or minor -- and a

host of other childhood infractions.   Under the majority

opinion, if a child lies about doing homework, is a parental hit

within the majority's realm?   If a child eats candy and is not

supposed to do that, is that within the majority realm?     If a

child has been untruthful at any time in the past and argued

with parents in the past, then may the child be whacked across

the face yielding blood, the child's cellular telephone taken

and flung across a small room, and the child pursued to her

bedroom to have hair pulled, all within the majority realm?        The

last answer is "yes," based on this case, and that should be
                                                                   2


beyond the pale of any reasonable excuse/justification/parental

discipline affirmative defense.

    In what appears to me to be a misapprehension of the law of

evidence on affirmative defenses, the majority seems to take the

position that the simple answer is that all this is just a jury

question.   See ante at    ("On the record before them, it was

open for the jury to find [had they been so instructed] that the

defendant's actions were 'reasonably related to the purpose of

safeguarding or promoting the welfare of the minor, including

the prevention or punishment of the minor's misconduct [here,

the daughter's repeated lying]'").   However, the majority

incorrectly, I think, is merging the "it is a jury question" for

jury deliberations and verdict, with the separate and distinct

precedent governing the legal responsibility of a judge to make

a preliminary legal ruling whether a defendant has adduced

sufficient evidence to get an affirmative defense jury

instruction.   Put another way, the affirmative defense of

parental discipline is not just a jury question; it is a judge's

legal instruction determination, followed by a judge's yea or

nea on whether a jury instruction is warranted on the evidence.

To follow the path of the majority, I believe, will yield the

result of most defendants claiming, and trial judges wondering,

whether every lie (or other child misbehavior) is a predicate

for a parental discipline affirmative defense instruction.
                                                                     3


    The daughter did admit throughout her testimony to eating,

and lying about eating, the cheese, which led to the defendant

mother's assaults on the day of the encounter.    But, contrary to

the majority's casting of the record, it is not so on this

record that there was evidence that the daughter "lied on a

persistent basis."   Ante at   .

    As basis for this supposed "persistent lying" not proved on

the record, the majority strings together without context a

bunch of the daughter's minor inaccuracies about the events

transpiring on the day of the cheese theft.    Thus for example,

the majority, without context, writes that "she 'admitted to at

least being inaccurate on a minimum of five occasions' in the

testimony she had given at trial."   Ante at note 2.    What the

majority fails to say to provide necessary context is that the

supposed lies and inaccuracies in the daughter's testimony,

including what the majority says were on "five occasions,"

related to the daughter telling the school official that she had

not brought her lunch to school.

    Furthermore, contrary to the majority, the daughter

testified that she told the police the truth.     Thus, there is a

similar out-of-context reference, and the record is contrary to

what the majority writes in note 2, ante.     That is, when

confronted by what was fairly standard defense cross-examination

about what was and was not in the police report and the
                                                                    4


counselor's description of what she remembered being told, the

daughter was adamant and did not waver, holding fast that she

told the police and the counselor the truth, and did not lie

about the cheese incident.    So I do not know from whence in the

transcript comes this majority reference to supposedly heavy

lying to the police and school officials.     From what I see in

black and white in the trial transcript, the daughter was

adamant that she told the police and the school counselor the

truth about the assault, and the supposed lies to school

officials seem to be about lunch brought or not brought to

school.

    Lastly, I would also note that in other sentence fragments

(see ante at    ,    ) there is a misreading of the evidence to

support a suggestion that the daughter was a serial liar, thus

justifying the beating she received from the mother.       In one

such sentence fragment, the majority writes that "[t]here was

evidence that the daughter had a history of conflict with her

parents over whether she lied to them."     Ante at    -     .

Again, this description is without necessary context.       The

actual context is as follows, which shows this reference relates

to the daughter living with the grandmother:

    Defense counsel:     "Okay.   You currently live with your
    grandmother?"

    Daughter:   "Yes."
                                                                  5


    Defense counsel:      "And you have since this incident?"

    Daughter:   "Yes."

    Defense counsel:      "And do you enjoy living with her?"

    Daughter:   "Yes."

    Defense counsel: "When you -- before this incident, did
    you at times wish that you lived with your grandmother?"

    Daughter:   "Sometimes."

    Defense counsel: "And sometimes you wished you lived with
    grandmother because sometimes you fought with your
    parents?"

    Daughter:   "Yes."

    Defense counsel: "And sometimes you fought with your
    parents about whether you lied to them or told the truth,
    is that true?"

    Prosecutor:   "Objection."

    Daughter:   "Yes."1

    In sum, the evidence -- particularly the daughter's

testimony -- does not support the majority position that the

assault was justified because of a pattern of regular lies that

warranted child discipline.




    1
       The same flaws appear in the majority sentence fragment,
ante at    -   , where the evidence is represented to say that
the daughter "had a history of conflict with her parents over
whether she lied to them, that she had given her parents reason
not 'to believe and trust' her, that she lied on a persistent
basis." This additional reference, like the other majority
reference detailed above, is in the context of the daughter
leaving the parents' household and going to live with her
grandmother.
                                                                    6


    To be clear further about my position in this dissent, even

if the daughter in the past told lies to her parents, what kid

has not done that?   Do lies in the past, none of which were even

probed into at trial or shown to be major or to be of and

concerning matters of the child's safety, justify an assault

upon the daughter for taking some cheese from a refrigerator and

not immediately confessing thereto for a minute or so?    I simply

do not see the justification for the affirmative defense of

parental discipline that the majority would take from this

record.

    Lastly, as discussed further herein, the majority would

make one legal error in giving the father a parental discipline

instruction (to which he was not entitled after he punched his

daughter in the face) into a different and separate legal error

as grounds to reverse the conviction of the mother, who also was

not, on the evidence, entitled to a parental discipline

affirmative defense instruction.

    It is clear that the majority -- having determined that

there will be a reversal -- turns its attention to an in loco

parentis analysis.   I disagree with the majority analysis and

its seeking to make this arcane case law the foundation for the

parental discipline instruction in future cases -- especially on

this extremely thin trial record.   I think the Supreme Judicial

Court decision in Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015)
                                                                    7


(Dorvil), was clear in its extension to a "parent or guardian,"

and was not intended to rest on in loco parentis.   But, perhaps,

whether the Supreme Judicial Court wants trial judges to study

in loco parentis is a matter for that court to determine should

it deem further appellate review warranted -- a path I would

urge in this case.

     I turn now in this dissent to analysis of those points of

divergence from the majority opinion.

     As to the defendant mother's appeal (which is the only

appeal before this court),2 there was not sufficient evidence by

any measure to support a parental discipline affirmative defense

to the mother's assault and battery upon the daughter by a hit

across the face that led to bleeding, the grabbing and pulling

of the daughter by her hair, or the throwing of the daughter's

cellular telephone across the kitchen while the daughter sat in

the kitchen -- all of this because the daughter ate some cheese

from the refrigerator, and then initially lied, denying she had

eaten the cheese.




     2
       Neither the mother nor the father was, I believe, entitled
to a parental discipline instruction. Only the appeal of the
convicted defendant mother is before us. The father, who
received an unwarranted parental discipline instruction, was
acquitted of assault and battery, despite that he punched his
daughter in the face, yielding a fat lip. Since he was
acquitted, the erroneously given instruction to the benefit of
the father is not before us.
                                                                     8


    1.   The Dorvil reasonableness prerequisite to parental

discipline and the three reasonableness prongs.     According to

Dorvil, 472 Mass. at 12-13, as a matter of law, parental

discipline is an affirmative defense to an alleged assault and

battery upon a child.   To this end, Dorvil specifically holds

that, before the affirmative defense of parental discipline may

be presented to a jury (by instruction charge) or to a judge as

trier of fact, the essential prerequisite to the use of parental

force in disciplining a child, is reasonableness.    "[T]he force

used against the minor child [must be] reasonable," and such

force must be "reasonably related to the purpose of safeguarding

or promoting the welfare of the minor" (emphasis supplied).        Id.

at 12.   Neither of these reasonableness prerequisites is

satisfied on the evidence introduced in this case by the

defendant mother.   In my opinion, because of that insufficient

evidence, the affirmative defense was not applicable, no

instruction on parental discipline was warranted, and there was,

accordingly, no reversible error.   Hence, I dissent.

    This case must be considered in light of the governing

Dorvil holding that the affirmative defense of parental

discipline only stands and may only be properly brought for

consideration before the jury (or judge) as the trier of fact if

there is sufficient evidence to warrant the parental discipline.

Only then, "[a]s with other affirmative defenses[] [in cases]
                                                                   9


where the parental privilege defense is properly before the

trier of fact, [does] the Commonwealth [then] bear[] the burden

of disproving at least one prong of the defense beyond a

reasonable doubt" (emphasis supplied).    Dorvil, 472 Mass. at 13.

Here, the evidence fails by sufficiency to meet either the first

reasonable force prong of Dorvil, or the second reasonable

relation prong.   See id. at 12.   To the contrary in this case,

the level of violence inflicted by the defendant mother negates

the affirmative defense that the daughter could be subjected to

violent assault and battery because of a lie about eating a

particular piece of food in the family refrigerator.3

     Because such an affirmative defense has an insufficient

foundation in the evidence and was not established either in the

Commonwealth's direct case by cross-examination of the

prosecution witnesses or in the defense case (there was no

defense case), the mother never met the burden of production to


     3
       The court in Dorvil also considered a third prong that
would focus on the child's offense; here, stealing cheese and
lying about eating the cheese. "In applying the [parental
discipline defense] framework, each of the three prongs
constitutes a question for the trier of fact. In evaluating the
reasonableness of the force used, and of the relation of that
force to a permissible parental purpose (the first two prongs of
the test), the trier of fact may consider, among other factors,
the child's 'age,' the 'physical and mental condition of the
child,' and 'the nature of [the child's] offense'" (emphasis
supplied). Dorvil, 472 Mass. at 13, citing Restatement (Second)
of Torts § 150 (1965). Because there is a failure of proof on
the other two prongs, I will leave aside the question whether a
child eating cheese deserves to be assaulted.
                                                                   10


be entitled to an affirmative defense jury instruction

concerning parental discipline for the assault and battery upon

the daughter.   See generally Commonwealth v. Cabral, 443 Mass.

171, 179 (2005) (Cabral), quoting from Model Penal Code

§ 1.12(1), (2) (1985) ("[W]here a defendant asserts an

'affirmative defense,' [the defendant] takes on a burden of

production, because the Commonwealth has no burden of disproving

an affirmative defense 'unless and until there is evidence

supporting such defense'").   As with the general law concerning

affirmative defenses and jury instructions to that effect, "[i]f

the defense is 'affirmative,' [as is the defense of parental

discipline, it is only when] a defendant raises the defense to a

charge and the defense is supported by sufficient evidence,

[that] the defendant is entitled to have a jury instruction on

the defense, and the Commonwealth has the burden of disproving

the defense" (emphasis supplied).   Cabral, supra at 179-180.4

    Given this trial record, I believe the judge's original

position was on the mark when he stated that he was "not

convinced at this point that there's sufficient evidence to


    4
       I agree with the Commonwealth's position in its filing
pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247
(1982), submitted after Dorvil was decided, that "[n]o evidence
on the issue of parental discipline was adduced at trial.
Instead, the defendant relied on the defense of fabrication --
that the victim lied about what happened to her. This was the
theme in the opening . . . [and] in cross-examination."
(Emphasis supplied.)
                                                                    11


raise this disciplinary defense."    That was a correct assessment

of the evidence, and nothing changed once the evidence closed.

    At trial, there was no affirmative defense evidence

introduced that the mother engaged in parental discipline so as

to justify the assaults and batteries.    This alleged affirmative

defense was not developed in the cross-examination of the three

prosecution trial witnesses -- i.e., the daughter, the school

counselor, and the police officer.    Nor was any such parental

discipline theory presented in a defense case because neither

the father nor the mother testified in defense, and the mother

did not present any other evidence concerning purportedly

justified parental discipline.

    To be clear, the importance of this issue is not only

whether or not the mother was entitled to a parental discipline

affirmative defense instruction.    The true reach of the issue

extends to the important obligation of a trial judge not to give

the instruction when, as here, there is no foundation in the

evidence for such a parental discipline affirmative defense

instruction.    To this end the majority appears to fundamentally

misunderstand when an affirmative defense is properly raised by

the evidence.   Before one can reach the question whether, as the

majority writes, "[v]iewing the trial evidence in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 677-678 (1979), there was ample basis upon which
                                                                   12


jurors could have concluded that the defendant's hitting the

daughter did not constitute reasonable parental discipline,"

ante at note 5, one must first ask whether the evidence

presented at trial, viewed in the light most favorable to the

defendant, was sufficient to raise the affirmative defense of

parental discipline, entitling the defendant to such an

instruction.

    That is because Dorvil specifically holds that parental

discipline is an affirmative defense.   Dorvil, 472 Mass. at 13.

Thus, to be entitled to a parental discipline affirmative

defense instruction, the evidence must sufficiently raise both

the first reasonable force prong of Dorvil, and the second

reasonable relation prong.

    In this respect whether the evidence sufficiently raises

the affirmative defense of parental discipline is similar in

many ways to whether and when a defendant is entitled to a jury

instruction on the affirmative defense of self-defense (and the

use of deadly force in self-defense).   See Commonwealth v. Toon,

55 Mass. App. Ct. 642, 644-645 (2002) ("Whether an allegedly

erroneous instruction on self-defense [and the use of excessive

force in self-defense] is prejudicial [or creates a substantial

risk of a miscarriage of justice] necessarily involves examining

first whether self-defense was raised sufficiently.   If not, the

defendant received more than he was entitled to . . . [because
                                                                   13


such an instruction is warranted only if] the evidence, together

with the reasonable inferences, raises a reasonable doubt as to

each of the predicates for the use of deadly force in self-

defense").   See also Commonwealth v. Harrington, 379 Mass. 446,

450 (1980) (citation omitted) ("A defendant is [only] entitled

to have the jury at his trial instructed on the law relating to

self-defense if the evidence, viewed in its light most favorable

to him, is sufficient to raise the issue.   There must be

evidence warranting at least a reasonable doubt that the

defendant:   [1] had reasonable ground to believe and actually

did believe that he was in imminent danger of death or serious

bodily harm, from which he could save himself only by using

deadly force, [2] had availed himself of all proper means to

avoid physical combat before resorting to the use of deadly

force, and [3] used no more force than was reasonably necessary

in all the circumstances of the case").5




     5
       It is interesting to compare the facts in the present case
to the facts of Dorvil. First, in Dorvil, both the defendant
father and the child's mother testified at trial. Dorvil, 472
Mass. 4-5. Not so here. Second, in Dorvil, the defendant and
the child's mother testified at trial "that [the defendant]
administered the spanking because the child disobeyed [the
defendant's] direction to go to her mother, and continued
playing on the sidewalk near the street." Id. at 13. Not so
here. Finally, the factual setting in Dorvil, a young child
running around near a bus terminal on a sidewalk close to the
street raises safety concerns tied to the child's conduct. Id.
at 5, 13. Not so here.
                                                                    14


    Rather than addressing the question whether there was

sufficient affirmative defense evidence introduced consistent

with the Dorvil prongs and warranting a parental discipline

affirmative defense instruction justifying the assault and

battery, the majority summarily concludes that "[t]he evidence

supporting an affirmative defense need not come from a defense

witness," ante at note 12, and relies on snippets to suggest

(erroneously I would say) that the record has evidence of

persistent lying.    First, I do not disagree that an affirmative

defense of parental discipline can be developed in the cross-

examination of prosecution trial witnesses.    See ante at note 9.

But here, it was not.   And I do not think the snapshot of

testimony from the daughter was sufficient to properly put this

affirmative defense of parental discipline by instruction before

the jury, as trier of fact.

    2.   The majority in loco parentis pronouncements.

Furthermore, given that Dorvil, 472 Mass. at 12, makes perfectly

clear that it encompasses a "parent or guardian," I cannot

follow the majority's attachment to the twenty-five year old

Commonwealth v. O'Connor, 407 Mass. 663, 668 (1990) (O'Connor),

and its in loco parentis analysis which, in turn, is tied to

financial support.   Given the empty trial evidence on this

important affirmative defense, I would not (as does the

majority) reach out to address in the abstract the parameters of
                                                                   15


parental discipline instructions, with the majority focus on an

in loco parentis theory.

     Nor do I think O'Connor provides a springboard to the

rights and obligations of parents within the wake of Dorvil.

Further, the "domestic fireside" warmth of the century-old case

of Mulhern v. McDavitt, 16 Gray 404, 406 (1860), on which the

majority relies in its in loco parentis analysis, is not where

the world of family is today.   That arcane in loco parentis

analysis does not fit modern life models.   In effect, the

majority harkens back to 1860 ancient law, notwithstanding an

evidentiary void in this 2013 case.    I decline to follow that

path.    And, more significantly, the 2015 Dorvil decision

expressly encompasses parents and guardians.6   So the majority's

focus on in loco parentis is an exploration with no trial record

path related to modern decisional law.

     In my humble view, given the wholly inadequate trial

record, this is not the case in which to move into this fraught

area of child discipline.   Furthermore, the nonexistence of any

trial evidence leaves me with little assurance that this court

should be making pronouncements in the abstract on the arcane

doctrine of in loco parentis, in a case where the affirmative

defense is not justified in the first place.

     6
       See, e.g., the editorial in the July 20, 2015, issue of
the Massachusetts Lawyers Weekly that fully catches that Dorvil
applies to parents and guardians.
                                                                   16


    3.   The majority failure to consider the insufficiency of

the evidence.   Finally, I do not accept, and dissent from, the

part of the majority analysis that concludes that "[w]hile there

is considerable force to the Commonwealth's position that the

defendant's behavior should not be viewed as reasonable parental

discipline, her actions were not so out of bounds as to exclude

such a defense from the jury's consideration."    Ante at     .   To

the contrary, this beating by a violent slap across the face,

delivered with such force that it caused the daughter's ear to

bleed, the throwing of a cellular telephone as a projectile, and

the pursuit of the daughter into the bedroom to pull her hair

were all acts arising out of anger.     Such volatile anger-driven

acts did not in any way reflect reasonable use of force or

proportionality to the child's "major offense" of eating cheese

stored in the refrigerator and then denying/lying about that.

Hence, no affirmative defense instruction on parental discipline

was warranted under Dorvil.

    In sum, respectfully, I see the majority as not resolving

the fundamental question whether the evidence sufficed for the

mother to receive the benefit of this affirmative defense and a

parental discipline jury instruction.    Furthermore, I am

troubled that a conviction is being reversed, with a lot of
                                                                17


writing about in loco parentis and the parental discipline

affirmative defense, without any supporting trial evidence.7

     For all of these reasons, I dissent from the majority's

decision reversing the conviction of assault and battery upon

the daughter.




     7
       After summarily concluding that there was sufficient
evidence introduced at trial to warrant a parental discipline
instruction, the majority ultimately decides that reversal of
the conviction of the mother is required because of an
"unfairness to the defendant," ante at    , such that a new
trial is warranted. According to the majority, this unfairness
inured when the judge, having changed his position, gave the
father the unwarranted benefit of a parental discipline
instruction while expressly telling the jury not to consider
whether the mother may have engaged in parental discipline.
But, if the mother had no reasonable tenable basis for the
parental discipline instruction anyway, there was no error in
depriving her of the instruction. Where one defendant gets a
requested affirmative defense instruction (not warranted by the
evidence) and the codefendant does not get the instruction (even
though the instruction as to the other codefendant is also not
warranted by the evidence) that does not lead to reversal for
the defendant correctly denied a jury instruction on an
affirmative defense. The abstract analysis of in loco parentis
in the majority as to stepparents becomes a very small part of a
very big discussion of other parental discipline legal issues,
with which I do not agree.
