NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-673

COMMONWEALTH

vs.

APRIL MARIE RESTREPO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in District Court, the defendant was 

convicted of one count of assault and battery on a household or 

family member under G. L. c. 265, § 13M, and one count of 

assault and battery by means of a dangerous weapon under G. L. 

c. 265, § 15A. On appeal, the defendant argues that the judge 

erred in denying her motions for required findings of not guilty 

because the Commonwealth failed to prove that she did not act in 

self-defense. We agree that the Commonwealth failed to meet its 

burden of proof and, accordingly, reverse the defendant's 

convictions.1

1 The defendant also argues that the judge erred in 

admitting body-worn camera footage in evidence because it was 

more prejudicial than probative. Because we reverse the 
2

Background. On the evening June 23, 2021, police were 

called to the house of the father of the defendant's children in 

Boston. Two officers responded, and one officer's body-worn 

camera recorded the following interaction with the defendant. 

The defendant told the officers that she had an altercation with 

her girlfriend an hour earlier at the defendant's house several 

blocks away. She reported injuries to her head and ankle. 

After the officers called an ambulance, they asked the defendant 

about the altercation. The defendant told them that she and her 

girlfriend got into an argument, the defendant told the 

girlfriend to leave the home, and the girlfriend refused. The 

defendant then stated, "I got physical with her, and she got 

physical back, and we've been going through this for days, 

that's why I have old bruises, new bruises on me, cause this has 

been like three days of this. . . . She's like emotionally 

abusing me, and we're physically abusing each other." At this 

point, an officer asked, "You said, you got physical with her, 

and she got physical back?" and the defendant responded 

affirmatively. After an officer asked, "Who had the weapon?" 

the defendant answered "me" and stated that it was a knife. The 

officers then arrested the defendant.

defendant's convictions for insufficient evidence, we do not 

address that argument here.
3

Before trial, defense counsel informed the judge and the 

prosecutor that his client was going to testify and their theory 

was self-defense. The Commonwealth's case-in-chief at trial

consisted of testimony from the two officers who responded to 

the children's father's house, a redacted version of the bodyworn camera footage, and medical records of the girlfriend's 

treatment after the altercation. The records from Boston 

emergency medical services showed that the girlfriend had an 

injury to her hand, also described as a small abrasion on her 

forearm. Similarly, the emergency department records from 

Boston Medical Center described the girlfriend's injury as a 

small superficial laceration on her right thumb that was not 

bleeding. After the Commonwealth rested, the defendant moved 

for required findings of not guilty on the ground that, even 

though the defendant had provided notice that self-defense was 

at issue, the Commonwealth had not met its burden to prove that 

the defendant did not act in self-defense. The judge denied the 

motion, finding that "the Commonwealth has met its burden, at 

least at this stage."

The defendant testified on her own behalf. She stated that 

she and her girlfriend had a verbal confrontation in the 

defendant's home. Her girlfriend hit her first and then punched 

her approximately eight times until the defendant fell to the 
4

floor. The girlfriend was six to nine inches taller than the 

defendant. While her girlfriend was hitting her, the defendant 

retrieved a pocketknife from the nightstand because she was 

concerned for her safety. As she was being punched, the 

defendant accidentally cut or grazed the girlfriend's thumb with 

the knife. There was no blood.

The defendant further testified that the altercation 

started in the bedroom, but after she was pushed to the ground, 

she got up and went into the hallway and then the living room. 

The girlfriend followed her into the living room, the defendant 

told her to pack up her stuff and leave, and another fist fight 

broke out. The defendant left the house and walked without her 

phone, keys, or shoes to the house of her children's father, six 

to eight blocks away. Once the defendant arrived, the father 

called the police, and eventually handed the defendant the 

phone. During the prosecutor's cross-examination of the 

defendant, the Commonwealth introduced a recording of the 911 

call, which included the defendant's statements to the 

dispatcher.

After the close of all evidence, the defendant renewed her 

motion for required findings of not guilty on the ground that 

the Commonwealth had not met its burden of disproving selfdefense. The judge denied the motion. In his closing argument, 
5

the prosecutor argued that "you lose the right to self-defense 

if you started the fight," and, citing the defendant's 

statements from the body-worn camera footage, argued: "So, who 

started it? The defendant started it. The defendant struck 

first, and the defendant escalated it when the fight did not go 

her way." The prosecutor urged the jury to disregard the 

defendant's trial testimony because the body-worn camera footage 

showed her "admitting to starting the fight, and . . . admitting 

to escalating it from a fist fight to a knife fight." The judge 

instructed the jury on self-defense, and the jury returned a 

verdict of guilty of both counts. The defendant again moved for 

required findings of not guilty on the ground that the 

Commonwealth did not disprove self-defense beyond a reasonable 

doubt, and the judge denied the motion.

Discussion. The defendant argues that the trial judge 

erred in denying her motions for required findings of not guilty 

because the Commonwealth failed to meet its burden of proving 

beyond a reasonable doubt that she did not act in self-defense. 

We agree.

We first "consider the state of the evidence at the close 

of the Commonwealth's case to determine . . . whether the 

Commonwealth [had] presented sufficient evidence of the 

defendant's guilt to submit the case to the jury" (citations 
6

omitted). Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 

(2018), cert. denied, 139 S. Ct. 2010 (2019). We evaluate the 

sufficiency of the Commonwealth's evidence to determine 

"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. Latimore, 378 Mass. 671, 677 (1979), quoting 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "Once selfdefense is put in issue, the Commonwealth must prove that the 

defendant did not act in self-defense." Commonwealth v. 

Kamishlian, 21 Mass. App. Ct. 931, 932 (1985). Specifically, 

"the Commonwealth bears the burden of proving, beyond a 

reasonable doubt, that the defendant did not act in selfdefense, by establishing that at least one of the three factors 

did not exist (i.e., that the defendant did not have reasonable 

concern for [her] safety, that [she] did not use all reasonable 

means to avoid physical combat, or that the force that was used 

was greater than necessary in all circumstances of the case)." 

Commonwealth v. King, 460 Mass. 80, 83 (2011), citing 

Commonwealth v. Glacken, 451 Mass. 163, 167 (2008). 

In its case-in-chief, the Commonwealth introduced in 

evidence the recorded statements that the defendant made in 

response to the officers' questions after she arrived at the 
7

house of her children's father. Asked by the officers about 

what happened, the defendant described a conflict that had 

lasted "for days" between her and her girlfriend, during which 

they were "physically abusing each other" and the defendant 

ended up with "old bruises" and "new bruises on me." At one 

point, the defendant stated about the altercation: "I got 

physical with her, and she got physical back, and we've been 

going through this for days." She then answered in the 

affirmative to an officer's question, "You said, you got 

physical with her, and she got physical back?" The defendant 

also acknowledged that she had a knife.

The Commonwealth argues that these statements prove that 

the defendant did not act in self-defense because she "admitted 

that she initiated the physical aggression." See Commonwealth

v. Castillo, 485 Mass. 852, 856-857 (2020) ("A person who 

initiates a fight cannot generally claim self-defense"). In his

closing argument, the prosecutor cited these statements as proof

that the defendant "started" the fight and "struck first," and 

"escalated it when the fight did not go her way" by bringing "a 

knife to a fist fight."

We disagree that the defendant's prearrest statements 

sufficed to prove beyond a reasonable doubt that she was the 

initial aggressor. Although it may have been "plausible" to 
8

infer from the statement "I got physical with her, and she got 

physical back," that the defendant "struck first," that 

inference "cannot bear the weight of proof beyond a reasonable 

doubt." Commonwealth v. Lee, 460 Mass. 64, 71 (2011), quoting 

Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010). Cf. 

Commonwealth v. Silva, 482 Mass. 275, 289 (2019) (approving jury 

instruction that "any inference constituting an element of an 

offense must be established beyond a reasonable doubt"). 

Particularly given the defendant's description of the drawn-out 

nature of the altercation and the distraught condition in which 

she was questioned,2 more evidence was required for a rational 

trier of fact to find beyond a reasonable doubt that the 

defendant was the initial aggressor and, even if she was, that 

she did not attempt to "withdraw[] in good faith from the 

conflict." Commonwealth v. Chambers, 465 Mass. 520, 528 (2013), 

quoting Commonwealth v. Maguire, 375 Mass. 768, 772 (1978). 

Similarly, the defendant's acknowledgement to the officers that 

she had a knife did not establish beyond a reasonable doubt the 

inference that she used it to "escalate" the altercation.

2 Specifically, the defendant had just experienced the 

altercation, walked multiple blocks from her house in bare feet, 

leaving her children behind, and was awaiting medical attention 

for a head injury.
9

The Commonwealth's case did not improve after the defendant 

testified on her own behalf. Even viewing that testimony in the 

light most favorable to the Commonwealth, it shows that the 

defendant did retreat from the conflict: first from her bedroom 

to the living room, and then from her home altogether, without 

her shoes and other essential belongings. Contrary to the 

Commonwealth's argument, this testimony does not show that the 

defendant chose to "return[] and continue[] the altercation," 

instead of retreating. The Commonwealth also argues that the 

defendant "opted to escalate the altercation by grabbing a 

knife, and then using said knife against the victim," but, 

again, the defendant's testimony does not support that 

conclusion. She testified that she removed a pocketknife from 

the nightstand in order to defend herself from her girlfriend, 

who was taller, larger, and had punched her until the defendant 

fell to the floor. She testified that she was concerned for her 

safety when she took out the knife, and that only an accidental 

grazing of the girlfriend's thumb occurred during their 

struggle.

While the jury were "entitled to disbelieve the evidence 

that the defendant acted in self-defense," Commonwealth v. 

Fluker, 377 Mass. 123, 128 (1979), the Commonwealth presented 

little evidence other than the previously-discussed recorded
10

statements by the defendant to satisfy its burden of proof. The 

defendant's girlfriend did not testify. There was no testimony 

by any other witness to the altercation, and therefore no 

"conflicting versions of events" in the record for the jury to 

resolve. Commonwealth v. Colas, 486 Mass. 831, 836 n.7 (2021). 

See Commonwealth v. McGann, 484 Mass. 312, 326 (2020). Nor did 

the Commonwealth present any circumstantial evidence sufficient 

to disprove self-defense. See Commonwealth v. Lao, 443 Mass. 

770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 

(2011). It introduced the girlfriend's medical records in 

evidence, but those records, which showed a small abrasion or 

laceration on her forearm or thumb, did not undermine the 

defendant's testimony as to how the knife was used.

The Latimore standard requires the evidence to be more than 

merely "sufficient . . . to permit the jury to infer the 

existence of the essential elements of the crime charged." 

Latimore, 378 Mass. at 677, quoting Commonwealth v. Sandler, 368 

Mass. 729, 740 (1975). "Additionally, the evidence and the 

inferences permitted to be drawn therefrom must be 'of 

sufficient force to bring minds of ordinary intelligence and 

sagacity to the persuasion of [guilt] beyond a reasonable

doubt.'" Id., quoting Commonwealth v. Cooper, 264 Mass. 368, 

373 (1928). Thus, "it is not enough for the appellate court to 
11

find that there was some record evidence, however slight, to 

support each essential element of the offense; it must find that 

there was enough evidence that could have satisfied a rational 

trier of fact of each such element beyond a reasonable doubt." 

Latimore, supra at 677-678. Here, the inference that the 

defendant was the first aggressor, based on nothing more than 

ambiguous statements made to the officers at the house to which 

she had retreated, was simply not strong enough, standing alone, 

to prove beyond a reasonable doubt that she did not act in selfdefense.

Accordingly, the judgments of conviction are reversed, and 

the verdicts are set aside. Judgments shall enter for the 

defendant.

So ordered.

By the Court (Vuono, Shin & 

Toone, JJ.3),

Assistant Clerk

Entered: May 28, 2024.

3 The panelists are listed in order of seniority.