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22-P-787 Appeals Court

22-P-888

22-P-897

COMMONWEALTH vs. MANOLO M., a juvenile

(and three companion cases1).

Nos. 22-P-787, 22-P-888, & 22-P-897.

Plymouth. September 8, 2023. - December 15, 2023.

Present: Green, C.J., Desmond, & Hand, JJ.

Delinquent Child. Juvenile Court, Delinquent child. Assault 

and Battery. Police Officer. Practice, Criminal, Required 

finding, Instructions to jury. Self-Defense. Resisting 

Arrest. Constitutional Law, Freedom of speech and press. 

Probable Cause.

Complaints received and sworn to in the Plymouth County 

Division of the Juvenile Court Department on October 4, 2019. 

The cases were tried before Dana Gershengorn, J. 

Eva G. Jellison for Frederick F.

Melissa Allen Celli for Angela A.

1 Commonwealth vs. Frederick F., a juvenile (22-P-787);

Commonwealth vs. Angela A., a juvenile (22-P-897); and 

Commonwealth vs. Manolo M., a juvenile (22-P-888). We adopt the 

same pseudonyms for the juveniles as used by the Supreme 

Judicial Court in Commonwealth v. Manolo M., 486 Mass. 678 

(2021).
2

Michelle Menken for Manolo M.

Elizabeth A. Mello Marvel, Assistant District Attorney, for 

the Commonwealth.

GREEN, C.J. After a trial in the Juvenile Court, a jury

adjudicated three juveniles, Manolo M., Frederick F., and Angela 

A., delinquent on the charge of resisting arrest and also 

adjudicated Manolo delinquent on the charge of assault and 

battery on a police officer (ABPO).2 On appeal, the juveniles

argue that the evidence was insufficient to support each 

adjudication. Manolo and Angela also argue that the jury 

instructions were deficient in various respects. We conclude 

that an error in the self-defense instruction on the offense of 

ABPO created a substantial risk of a miscarriage of justice, 

requiring that we vacate Manolo's adjudication with respect to 

that offense. We affirm the juveniles' adjudications for 

resisting arrest.

The incidents giving rise to the charges leading to the 

present appeals arose out of a somewhat volatile gathering of 

teenagers following an early dismissal of Brockton high school 

students from school, as generally described in Commonwealth v. 

2 All other charges against the juveniles were dismissed 

prior to trial consistent with the decision in Manolo M., 486 

Mass. at 694-695. 
3

Manolo M., 486 Mass. 678, 679-681 (2021).3 We address the 

juveniles' various claims of error in turn, incorporating 

additional factual details as necessary in our discussion of 

each claim.

1. Manolo. a. ABPO. i. Motion for required finding. 

Manolo first contends that his adjudication on the ABPO charge

must be reversed because there was insufficient evidence that he 

touched the police officer. 

"Challenges to the sufficiency of the evidence are 

evaluated under the Latimore standard, that is, whether, 'after 

viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.'" 

Commonwealth v. Witkowski, 487 Mass. 675, 679 (2021), quoting 

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Where, as 

here, the juvenile moved for a required finding at the close of 

the Commonwealth's case and renewed the motion at the close of 

all evidence, 

"[w]e consider the state of the evidence at the close of 

the Commonwealth's case to determine whether the 

defendant's motion should have been granted at that time. 

We also consider the state of the evidence at the close of 

3 Though the factual summary included in that opinion was 

drawn solely from the police reports, and the juveniles 

contested the characterization of the events in those reports, 

see Manolo M., 486 Mass. at 679 n.4, the general contours of the 

description in that opinion finds support in the evidence at the 

subsequent trial.
4

all the evidence, to determine whether the Commonwealth's 

position as to proof deteriorated after it closed its case" 

(citation omitted). 

Commonwealth v. Copeland, 481 Mass. 255, 260 (2019). 

To prove an assault and battery, the Commonwealth must 

prove "that the [juvenile] touched the victim without having any 

right or excuse to do so and that the [juvenile]'s touching of 

the victim was intentional." Commonwealth v. Mitchell, 67 Mass. 

App. Ct. 556, 564 (2006). Viewed in the light most favorable to 

the Commonwealth, the evidence was sufficient to establish the 

following. Manolo tried to run past Brockton police Officer 

Daniel Vaughn to check on his friend who was engaged in a 

struggle with other officers. Vaughn pushed Manolo back. 

Manolo began to rock back and forth in front of Vaughn with his 

fists up and stated, "let's go mother f'er, let's go." Manolo 

then swung his closed fist at Vaughn's head, and Vaughn 

"blocked" that punch.4 From that testimony, a reasonable juror 

4 The testimony concerning the blocked punch was elicited on 

cross-examination. As this court previously acknowledged, 

"[o]ur cases do not specify whether testimony on crossexamination of the Commonwealth's witness is considered part of 

the Commonwealth's case-in-chief for purposes of a directed 

verdict, or is only to be included in the calculus of adequacy 

in a reappraisal of all the evidence after the defendant has 

rested." Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 103 n.10

(2015). We conclude that such testimony can be considered as

part of the Commonwealth's case-in-chief for purposes of a 

required finding. See Copeland, 481 Mass. at 260 (required 

finding motion requires consideration of "the state of the 

evidence at the close of the Commonwealth's case" [citation 

omitted]). Cf. Commonwealth v. Mauricio, 477 Mass. 588, 597 
5

could have concluded that Manolo committed an assault and

battery by touching Vaughn while attempting to land a punch. 

Cf. Webster's Third New International Dictionary 235 (2002) 

("block" means "to obstruct or interfere with [an opponent, his 

play, or his movement] by bodily contact").

ii. Self-defense instruction. Manolo further argues that 

the judge erred in including the language pertaining to deadly 

force in the self-defense instruction, and that the judge should 

have provided instruction on defense of another. Because Manolo 

did not object, we review for a substantial risk of a 

miscarriage of justice. See Commonwealth v. Souza, 492 Mass. 

615, 635 (2023). 

"To decide whether an error creates a substantial risk of a 

miscarriage of justice, we must determine 'if we have a serious 

doubt whether the result of the trial might have been different 

(2017) ("In determining the sufficiency of the evidence, we 

consider 'the evidence in its entirety, including, not 

excluding, that admitted [at] trial but found inadmissible on 

appeal'" [citation omitted]). To the extent that Manolo asserts 

that his trial counsel was ineffective for eliciting testimony 

about the blocked punch on cross-examination, Manolo did not 

raise this claim through a new trial motion, and this is not one 

of the "exceptional" circumstances where such a claim can be

resolved on direct appeal. Commonwealth v. Zinser, 446 Mass. 

807, 809 n.2 (2006). See Commonwealth v. Davis, 481 Mass. 210, 

222 (2019) (motion for new trial preferred method of raising 

ineffective assistance of counsel claim). In light of our 

conclusion that Manolo's adjudication for ABPO must be vacated 

on other grounds, we do not otherwise address his ineffective 

assistance claim.
6

had the error not been made'" (citation omitted). Commonwealth

v. Desiderio, 491 Mass. 809, 810 (2023). 

"In making this determination, we consider four factors, 

where applicable: '[(1)] the strength of the 

Commonwealth's case, [(2)] the nature of the error, [(3)] 

the significance of the error in the context of the trial, 

and [(4)] the possibility that the absence of an objection 

was the result of a reasonable tactical decision'"

(citation omitted).

Id.

On the offense of ABPO, the judge correctly determined that 

Manolo was entitled to a self-defense instruction including the

use of nondeadly force. However, in delivering the supplemental 

instruction on the reasonable apprehension requirement, the 

judge included a portion of the model instructions pertaining to 

circumstances where the use of deadly force is at issue. See 

Instruction 9.260 of the Criminal Model Jury Instructions for 

Use in the District Court (2009).5 Because use of deadly force 

was not at issue in this case, the inclusion of the phrase "of 

great bodily harm or death" in the instruction was error. See 

5 Specifically, the judge instructed,

"A person cannot lawfully act in self defense unless he is 

attacked or is immediately about to be attacked. The 

Commonwealth may prove that the juvenile did not act in 

self defense by proving beyond a reasonable doubt that 

there was no overt act, either words, a gesture, or some 

other action, that gave rise to a reasonable belief of 

attack, or immediate danger of great bodily harm or death" 

(emphasis added). 
7

Commonwealth v. Noble, 429 Mass. 44, 46 (1999) (nondeadly force 

includes "force of one's fists, hands, and arms").

We accordingly consider the significance of the error in 

the context of the trial. Whether Manolo acted in self-defense, 

including the degree of risk faced by Manolo, was a live issue 

at trial. Defense counsel argued that, in light of the size 

disparity between Vaughn and Manolo (Vaughn was eight inches 

taller and 100 pounds heavier), the injuries that Manolo 

suffered from the incident, and the "hard takedown" that twice 

caused Manolo to fall to the ground, Manolo was entitled to 

protect himself. The Commonwealth's evidence establishing that 

Manolo did not act in self-defense was not overwhelming, and 

required resolution by the fact finder. See Desiderio, 491 

Mass. at 817 (appellate court's role is "not to sit as a second 

jury" [citation omitted]). The effect of the erroneous 

instruction materially lowered the Commonwealth's burden of 

proof; by virtue of the erroneous instruction the Commonwealth

was able to prove that Manolo did not act in self-defense by 

proving there was "no overt act . . . that gave rise to a 

reasonable belief of attack, or immediate danger of great bodily 

harm or death" (emphasis added). See Commonwealth. v. Baseler, 

419 Mass. 500, 503-504 (1995) (instruction on self-defense 

relating to deadly force on charge of assault and battery 

impermissibly lowered Commonwealth's burden of proof). See also
8

Commonwealth v. Walker, 443 Mass. 213, 217 (2005) (standards for 

use of deadly and nondeadly force are "distinct, self-contained 

definitions of self-defense"); Commonwealth v. Pike, 428 Mass. 

393, 395 (1998) ("The right to use nondeadly force arises at a 

'somewhat lower level of danger' than the right to use deadly 

force" [citation omitted]). Finally, there is no realistic 

possibility that defense counsel's failure to object was a 

reasonable tactical decision. See Desiderio, 491 Mass. at 819-

820 (no reasonable tactical decision to fail to object to 

instructions relieving Commonwealth of burden to prove required

element beyond reasonable doubt).

We are mindful that "[s]elf-defense is a sensitive part of 

the jury instructions in a criminal trial, and inappropriate 

language in the instructions can readily lead to a result in 

which an appellate court lacks confidence" (citation omitted). 

Commonwealth v. Cataldo, 423 Mass. 318, 327 (1996). The 

erroneous instruction in the present case created a substantial 

risk of a miscarriage of justice and, as a result, Manolo's 

adjudication for ABPO must be vacated.6

6 To the extent Manolo also claims error with respect to the 

judge's failure to include a defense of another instruction, we 

disagree based on the absence of evidence that Manolo attempted 

to intervene on his friend's behalf. Manolo's own testimony was 

that he did not intend to interfere in the struggle between his 

friend and the officers when he attempted to run past Vaughn; he 

merely wanted to "check on" his friend and "see if he was okay." 
9

b. Resisting arrest. On the charge of resisting arrest, 

Manolo argues that there was insufficient evidence that he 

offered resistance at the time Vaughn was effectuating his 

arrest. 

"A person commits the crime of resisting 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). "[T]he crime . . . is committed, if at 

all, at the time of the 'effecting' of an arrest." Commonwealth

v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting

Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). "An 

arrest is effected when there is (1) 'an actual or constructive 

seizure or detention of the person, [2] performed with the 

intent to effect an arrest and [3] so understood by the person 

detained.'" Grant, supra, quoting Grandison, supra. "The 

standard for determining whether a defendant understood that he 

We likewise reject Manolo's argument that the judge's decision 

not to instruct on the "reasonable juvenile standard" was 

prejudicial error. That standard has been considered in the 

context of juvenile sentencing, see Commonwealth v. Odgren, 483 

Mass. 41, 48 (2019), and in the context of Miranda warnings, see 

Commonwealth v. A Juvenile, 402 Mass. 275, 277 (1988), but not 

in the context of the use of nondeadly force in self-defense. 

In any event, in light of the absence of any evidence on this 

issue at trial, we discern no error in the judge's decision to 

omit the proposed instruction.
10

was being arrested is objective -- whether a reasonable person 

in the defendant's circumstances would have so understood." 

Grant, supra.

After the events described above, Vaughn kicked Manolo, 

Manolo approached again, and both fell to the ground. Vaughn 

was "trying to place [Manolo] under arrest." Vaughn explained,

"I was telling him he was under arrest, and at that point, 

another officer arrived and assisted me in placing him in 

handcuffs." That other officer, Brockton school police Officer 

Spencer Benoit, came to assist after he observed "Vaughn having 

an altercation with a student from the high school, and [Vaughn]

was trying to get him to comply with his commands, telling him

[to] place his hands behind his back." Benoit "assisted with 

grabbing an arm and putting the hand behind [Manolo's] back so 

Officer Vaughn could apply handcuffs." A reasonable juror could 

conclude from this testimony that Manolo was actively resisting 

Vaughn's efforts to effectuate his arrest after being advised by 

Vaughn that he was under arrest.7 See Grandison, 433 Mass. at

143-145 (evidence of resisting arrest sufficient when as officer 

tried to handcuff him, defendant "was shouting obscenities, 

stiffened his arms and, for a second, was able to pull one of 

7 This inference was bolstered by Manolo's own testimony 

that while on the ground, "multiple officers [were] trying to 

arrest [him]."
11

his arms free," never complied with request to put hands behind 

back, and ultimately required two more officers to assist in 

getting arms behind back). See also Commonwealth v. Maylott, 65 

Mass. App. Ct. 466, 468-469 (2006); Commonwealth v. Katykhin, 59 

Mass. App. Ct. 261, 262-264 (2003).

2. Frederick. Frederick argues that the judge erred in 

denying his pretrial motion to dismiss the criminal complaint on 

the charge of resisting arrest, and in denying his motions for a 

required finding on that charge at the close of the 

Commonwealth's case and at the conclusion of trial.8 

Specifically, he argues that the officers lacked a good faith 

basis to believe that Frederick committed a crime when they 

attempted to arrest him. 

To support an adjudication of delinquency on the offense of 

resisting arrest, the Commonwealth must prove that "the officers 

acted 'under color of [their] official capacity' in attempting 

the arrest" (citation omitted). Commonwealth v. Urkiel, 63 

Mass. App. Ct. 445, 453 (2005). "A police officer acts under 

the color of his official authority when, in the regular course 

of assigned duties, he is called upon to make, and does make, a 

judgment in good faith based upon surrounding facts and 

circumstances that an arrest should be made by him." G. L. 

8 The same judge resolved the motion to dismiss and served 

as the trial judge. 
12

c. 268, § 32B (b). These requirements reflect "a compromise of 

two views: (i) the person arrested has no right to resist the 

arrest even if illegal, [and] (ii) [the person arrested] has a 

right to resist (proportionately) an illegal arrest." Urkiel, 

supra.

a. Motion to dismiss. At a minimum, the facts alleged in 

the complaint supported a conclusion that Vaughn had a good 

faith basis to believe that Frederick could be arrested for 

disorderly conduct.9 A person engages in disorderly conduct 

under G. L. c. 272, § 53 (b), if the person "'with purpose to 

cause public inconvenience, annoyance or alarm, or recklessly 

creating a risk thereof,' engaged in 'fighting or threatening, 

or in violent or tumultuous behavior' or created 'a hazardous or 

physically offensive condition by any act which serves no 

legitimate purpose of the actor.'" Commonwealth v. Cooper, 100 

Mass. App. Ct. 345, 351 (2021), quoting Commonwealth v. Accime, 

476 Mass. 469, 472-473 (2017). "'[T]umultuous behavior,' for 

the purposes of § 53, includes the refusal to obey a police 

9 Frederick was charged with disorderly conduct, disturbing 

the peace, and interfering with a police officer. Those charges

were dismissed prior to trial as Frederick's "first episode of 

minor misdemeanor level misconduct" under G. L. c. 119, § 52. 

Manolo M., 486 Mass. at 694. The officers at the scene had no 

basis to know this legal limitation for proceeding with those 

charges, and the juveniles do not argue that the subsequent 

dismissal of these claims on that basis raises any question of 

the officers' good faith basis for the arrest.
13

order." Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 

(2009), cert. denied, 562 U.S. 891 (2010).

The police reports supporting the application stated that 

there were approximately one hundred students on Florence Street 

when police arrived. The street was "entirely blocked" due to 

the crowd refusing to disperse despite police broadcasting 

orders to do so over a microphone and using cruisers with

activated lights and sirens to attempt to clear the roadway. As 

the police arrested Manolo and his friend, the crowd ran closer 

and surrounded the police. After those arrests were 

effectuated, a large crowd remained and refused orders to leave 

the area. Frederick ignored several verbal warnings to the 

leave, continued to entice the crowd to stay and become more 

agitated, and walked slowly in the middle of the street yelling, 

"Fuck you pigs I aint [sic] moving shit!" 

Frederick argues that the officers had no good faith basis 

to arrest him, because his words and actions were protected 

within his rights, under the First Amendment to the United 

States Constitution, to criticize the police, see O'Brien v. 

Borowski, 461 Mass. 415, 428-429 (2012), and to observe police 

officers engaged in their duties in a public place, see Glik v. 

Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). We recognize that 

"[t]he police do not . . . have unfettered discretion to arrest 

someone for speech that annoys or offends." Commonwealth v. 
14

Adams, 482 Mass. 514, 528 (2019). However, "[i]n deciding 

whether to arrest, police officers often make split-second 

judgments," and the decision whether conduct -- such as standing 

in the street, repeatedly failing to comply with police orders 

to disperse, and encouraging others to stay on a chaotic scene -

- is afforded First Amendment protection requires a finely 

nuanced analysis of the particular facts. Lozman v. Riviera 

Beach, 138 S. Ct. 1945, 1953 (2018). Though some of Frederick's

conduct may have been within the protection of the First 

Amendment, "that protection did not entitle him to disregard 

police commands reasonably calculated at ensuring public safety 

amid potentially dangerous circumstances." Marcavage, 76 Mass. 

App. Ct. at 40. Here, the alleged conduct was sufficient to 

give the officers a good faith basis to believe probable cause 

supported Frederick's arrest.

b. Motions for required finding. The evidence at trial 

also was sufficient to deny the motions for a required finding 

of not delinquent. Viewing the evidence in the light most 

favorable to the Commonwealth, a rational jury could have found 

the following. The scene confronting the officers upon their 

arrival was loud and chaotic. Students were running around, 

swearing, refusing to leave, and physically intervening with 

officers. Frederick refused to leave the area despite being 

asked multiple times to do so. Instead, he stood in the street 
15

yelling, "f--- you" and "we're not leaving." When Officer 

Vaughn attempted to arrest Frederick, he began to pull away, 

would not put his arms behind his back, and continued to fight 

as another officer joined to assist Vaughn. He was handcuffed 

after a third officer, following a verbal warning, put his taser 

directly on Frederick and stunned him. Viewed in the light most 

favorable to the Commonwealth, the evidence that Frederick 

refused to leave the area, encouraged others to stay, and 

continued to block the street was sufficient to support a 

conclusion that Vaughn made a judgment in good faith that 

probable cause supported Frederick's arrest.

To the extent Frederick argues that evidence about the 

chaotic and volatile nature of the scene -- and in particular 

the number of people present -- deteriorated after the close of 

the Commonwealth's case, we disagree. Frederick contends that 

the video recording submitted in evidence during the juveniles' 

case-in-chief demonstrates that "the volatility of the situation 

was overstated by a number of officers" because it depicts only 

a few people in the area of the arrests. The video recording is 

not conclusive of the conditions at the scene, because it is

limited in both time and perspective. The video recording 

depicts roughly one minute of the thirty to forty-five minutes 

that the police were in the area attempting to disperse the 
16

crowd.10 The video recording also largely depicts the incidents 

that occurred on the front lawn of a single house. It does not 

show how many people were gathered in the nearby area or on the 

street, and it does not depict Frederick's arrest. The jury 

were free to credit the witnesses' testimony about the number of 

people in the area at the time of his arrest, and to credit the 

testimony of the arresting officers describing the totality of 

the scene and their encounters with the crowd. Cf. Commonwealth

v. Walker, 401 Mass. 338, 343–344 (1987) (jury free to 

disbelieve defendant's account where nothing compelling in 

defendant's evidence caused prosecution's case to deteriorate).

3. Angela. a. Motions for required finding. Angela 

argues that there was insufficient evidence that the officer who 

arrested her was acting in good faith when he decided to arrest 

her or that her conduct amounted to resisting arrest. We 

address each element in turn.

i. Color of official authority. Angela first argues that 

the police had no basis to arrest her as she was permitted to 

record the police's interactions with her friends and inquire

why police were harassing people on the street. However, at 

trial, evidence was presented that Angela was "in all the 

officers' faces with her phone." She was swearing and telling 

10 The recording has some background noise, but none of the 

conversations between the juveniles and the police can be heard.
17

the officers that they were violating people's rights. She had 

her cell phone approximately five inches from Brockton police 

Officer Raymond Parrett's face while he was initially 

interacting with Frederick. Parrett told Angela to get the cell 

phone out of his face and slapped the phone out of her hand 

three times. Later, she was "[i]nches" away from Brockton 

police Lieutenant Frank Vardaro as he was struggling to put 

someone in custody with assistance from another officer. Angela 

also was "in [Vardaro's] face with a camera, screaming at [him], 

swearing at [him], telling [him he's] violating rights. And she 

refused to disengage and walk away." Viewed in the light most 

favorable to the Commonwealth, a rational jury could conclude 

that Angela failed to comply with police orders to stand back 

from the officers while they were performing their duties, 

including when Vardaro was engaged in a struggle. This conduct 

was sufficient to give officers a good faith basis to believe 

probable cause supported Angela's arrest. See Marcavage, 76 

Mass. App. Ct. at 38 (tumultuous behavior under disorderly 

conduct statute includes refusal to comply with police order). 

See also Adams, 482 Mass. at 527 (offense of interference with 

police officer requires Commonwealth to prove "the defendant 

intended his or her conduct, and intended 'the harmful 
18

consequences of the conduct -- that is, the interference with, 

obstruction, or hindrance'" [citation omitted]).11

We are unpersuaded by Angela's arguments to the contrary. 

To be sure, the ability to film police officers carrying out 

their official duties in public is protected by the First 

Amendment, and Angela was free to do so. However, such conduct 

may be limited by reasonable time, place, and manner 

restrictions, such as requiring Angela to film from a safe 

distance away from a chaotic and volatile scene, and in a manner 

that caused no interference with the officers' performance of 

their duties. See Glik, 655 F.3d at 84 (reasonable time, place, 

manner restrictions permissible). See also Adams, 482 Mass. at

528 ("It is constitutionally permissible to prohibit individuals 

from physically obstructing a police officer"); Marcavage, 76 

Mass. App. Ct. at 40 (First Amendment does not permit citizens 

to disregard police commands meant to ensure public safety in 

potentially dangerous situations). 

11 To the extent Angela argues that the Commonwealth could 

not prove she "intended the harmful consequences of the 

conduct," that does not negate the jury's conclusion that 

Parrett had a good faith basis for the arrest in the moment the 

decision to arrest was made (quotation and citation omitted). 

Adams, 482 Mass. at 527. See Commonwealth v. Lender, 66 Mass. 

App. Ct. 303, 305 (2006) ("Even were a court to determine later 

that the . . . subsequent arrest lacked . . . probable cause, 

the absence of [probable cause] does not provide a defense to 

the charge of resisting arrest").
19

For largely the same reasons explained in our discussion of 

Frederick's claims, we conclude that the video recording 

submitted in evidence does not negate the testimony that Angela 

was close to the officers' faces and does not cause the 

Commonwealth's case to deteriorate. Notably, the video 

recording does not depict the entire encounter; it begins during 

the last occasion that Parrett knocked Angela's cell phone out 

of her hand. While the sixty-four second video recording shows

Angela in the general vicinity of the officers, but not mere 

inches away from their faces, both Manolo and his friend appear 

to be on the ground with officers as the recording ends; thus,

the video recording does not even capture the completion of 

their arrests. The video recording also does not depict what 

occurred thereafter, including Angela's arrest and Frederick's 

arrest.12 Although the footage does not show Angela close to the 

officers during the partial depiction of the arrests of Manolo 

and his friend, the jury were free to credit the officers' 

testimony that at other times (not depicted in the recording) 

she was within inches of their faces.

12 Testimony was presented that Angela and Frederick 

recorded Manolo's friend's arrest. Both Angela and Frederick 

were approximately three feet away from where officers were 

struggling to place that male in handcuffs when an officer "told 

them that they needed to back away, . . . to give the officers 

space to do what they needed to do." Angela and Fredrick 

complied with that order. 
20

ii. Physical force or violence. Angela next argues that 

her conduct did not amount to resisting arrest; instead, she 

asserts that "[s]he merely failed to offer her arm to be 

handcuffed as quickly as the police officer would have liked." 

Contrary to her assertion, the evidence at trial established "an 

active, physical refusal to submit to the authority of the 

arresting officers, and opposition to their efforts to effect 

the arrest." Maylott, 65 Mass. App. Ct. at 469. As Parrett 

tried to put Angela's hands behind her back, "she was pulling 

away." Parrett explained, "I tried to grab one arm. She yanked 

away with the camera still going. I tried to put her hands 

behind her back, she wouldn't." Parrett then grabbed Angela by 

the backpack and her hair, and put her on the ground. Angela

pulled her arms and hands under her body while on the ground

such that she could not be handcuffed. After she did not comply 

with "several orders to pull her hands out" and after a verbal 

warning, Parrett administered oleoresin capsicum spray (OC spray 

or pepper spray).13 In the light most favorable to the 

Commonwealth, the active conduct of pulling away while the 

officer was attempting to handcuff Angela coupled with Angela

13 To the extent Angela argues that she already was in 

custody and under arrest at the time she put her hands under her 

body, we disagree. See Katykhin, 59 Mass. App. Ct. at 262-263 

(arrest complete after defendant fully detained in cruiser, not 

when defendant was handcuffed). 
21

keeping her hands under her body after being put on the ground

fall within the type of "physical force or violence" required to 

support an adjudication for resisting arrest under G. L. c. 268, 

§ 32B (a) (1). See Maylott, supra at 467-469 (defendant 

resisted arrest by stiffening arm, refusing to put hands behind 

back, and not turning around to be handcuffed); Katykhin, 59 

Mass. App. Ct. at 262 (defendant resisted arrest by refusing to 

get into police cruiser, standing rigid, and "pull[ing] away, 

starting a 'tug of war'"). Accordingly, the evidence was 

sufficient to support Angela's adjudication for resisting 

arrest.

b. Jury instructions. Angela also claims error in the 

jury instructions on the offense of resisting arrest. 

Specifically, she contends that when the judge explained that a 

person is not permitted to resist even an unlawful arrest, the 

judge omitted qualifying language that the arrest must be 

carried out in good faith. Because Angela did not object to the 

instruction, we review to determine if there was any error and, 

if there was, whether it created a substantial risk of a 

miscarriage of justice. See Souza, 492 Mass. at 635.

We discern no error. The judge first gave an instruction 

on the offense of ABPO and then gave an instruction on the 

offense of resisting arrest. A reading of the transcript 

demonstrates that the language Angela now challenges -- "A 
22

person who is arrested by someone who he knows is a police 

officer, is not allowed to resist that arrest with force, 

whether the arrest is lawful or not" -- was clearly part of the 

instruction on ABPO, and Angela was not charged with that 

offense. The transition from the instruction on ABPO to 

resisting arrest was apparent -- the judge prefaced the 

transition with a statement that each juvenile was charged with 

resisting arrest and then explained what the Commonwealth must 

prove beyond a reasonable doubt with respect to that offense.14 

As part of the instruction on resisting arrest, the judge 

correctly explained, "[T]he Commonwealth must prove that the 

police officer was acting, quote, under color of official 

authority. A police officer acts under color of official 

authority when in the regular course of assigned duties he or 

she makes a judgement in good faith based on the surrounding 

facts and circumstances that he or she should make an arrest." 

At the conclusion of the instruction on resisting arrest, the 

judge explained, "It is not a defense to this charge that a 

police officer was attempting to make an arrest which was 

unlawful if the officer was acting under color of his official 

authority and used only reasonable force in attempting to make 

14 The judge's instruction on the offense of resisting 

arrest tracks the language in the Instruction 7.460 of the 

Criminal Model Jury Instructions for Use in the District Court 

(2009).
23

that arrest" (emphasis added). Viewing the instructions in 

their entirety, the judge adequately explained the burden of 

proof on the offense of resisting arrest. See Commonwealth v. 

DelValle, 443 Mass. 782, 796 (2005) ("We review a judge's charge 

to the jury for error by reading the charge as a whole, and not 

by scrutinizing each sentence out of context").

Conclusion. On the counts of the complaints charging 

Manolo, Frederick, and Angela with resisting arrest, the

juveniles' adjudications of delinquency are affirmed. On the 

count of the complaint charging Manolo with assault and battery

on a police officer, the adjudication of delinquency is vacated 

and the verdict set aside.

So ordered.