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SJC-12036

COMMONWEALTH vs. DONALD DUSTIN.

November 23, 2016.

Assault and Battery. Words, "Substantive dating relationship."

After a jury trial, the defendant, Donald Dustin, was 

convicted in the Marlborough Division of the District Court

Department of assault and battery on a family or household 

member, in violation of G. L. c. 265, § 13M (a).

1 We granted the 

defendant's application for direct appellate review to consider 

the "substantive dating relationship" element of § 13M (a).2 We 

affirm.

 

1 The defendant also was convicted of reckless operation of 

a motor vehicle, in violation of G. L. c. 90, § 24. He makes no 

argument with respect to this conviction, and we do not consider 

it. The jury returned a verdict of not guilty of a charge of 

strangulation, in violation of G. L. c. 265, § 15D (b).

2 We acknowledge the amicus brief submitted by Tyrone 

Stampley. We decline, however, to address the argument put 

forth in the amicus brief that G. L. c. 265, § 13M, is 

unconstitutionally vague. "An amicus may not argue issues not 

raised by the parties." Robinson v. State Ballot Law Comm'n,

432 Mass. 145, 147 n.4 (2000). See generally C.O. v. M.M., 442 

Mass. 648, 650 (2004) (considering same statutory language in 

context of G. L. c. 209A; "[b]ecause [G. L. c. 209A] enumerates 

four factors to be considered in determining the existence of a 

'substantive dating relationship,' there is sufficient language 

in the statute to enable [fact finders] to make informed and 

consistent determinations").
2

1. Timing of the defendant's motion. The defendant did 

not make a timely motion at the close of the Commonwealth's case 

for a required finding of not guilty with respect to the assault 

and battery charge.3 See Mass. R. Crim. P. 25 (a), as amended, 

420 Mass. 1502 (1995). See also Commonwealth v. Brown, 449 

Mass. 747, 762 (2007). Had he done so, we would have considered 

only the evidence admitted during the Commonwealth's case-inchief to decide "whether the Commonwealth presented sufficient 

evidence of the defendant's guilt to submit the case to the 

jury."4 Commonwealth v. Platt, 440 Mass. 396, 400 (2003). See 

Brown, supra; Commonwealth v. Berry, 431 Mass. 326, 331-332 

(2000). Cf. Commonwealth v. Hurley, 455 Mass. 53, 69 n.15 

(2009) (motion for required finding filed "after the 

Commonwealth has rested and before the defense was invited to 

present evidence" must be ruled on at that time). Instead, we 

consider whether the evidence during the entire trial, including 

the evidence presented during the defendant's case, was 

sufficient to sustain the conviction.

2. Factual background. A detailed description of the 

events of August 28, 2014, which gave rise to the criminal 

charges, is unnecessary to this appeal. It suffices to say that 

 

3 The defendant's challenge to the sufficiency of the 

evidence of a "substantive dating relationship" was first made 

after the Commonwealth had rested and after the defendant had

called his first witness, the witness had completed his 

testimony, and he had been excused. Unless a defendant moves 

for a required finding after the Commonwealth rests its case and 

before he begins his own, his rights are not fixed at that point 

for purposes of evaluating the sufficiency of the evidence under 

Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995). 

The defendant has not raised, in this direct appeal from his 

conviction, any claim of ineffectiveness of his counsel at 

trial.

4 The point is of substantial significance here, because 

both the defendant and Stacey Rock testified about the nature of 

their relationship, essentially filling any gap in the 

Commonwealth's case. 5 General Laws c. 209A, § 1 (e),

instructs courts to consider the following factors when 

determining whether a "substantive dating" relationship exists 

for purposes of c. 209A: "(1) the length of time of the 

relationship; (2) the type of relationship; (3) the frequency of 

interaction between the parties; and (4) if the relationship has 

been terminated by either person, the length of time elapsed 

since the termination of the relationship."
3

in the light most favorable to the Commonwealth, see 

Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), there

was evidence at trial that the defendant and Stacey D. Rock 

were in a parked vehicle when a witness observed an altercation 

between the two of them. After they were confronted by the 

witness, the defendant drove off at a high rate of speed and he 

was stopped a short time later for various motor vehicle 

infractions. A police officer testified that when he asked the 

defendant why he had been driving "that way," the defendant

replied, "something to the nature of that he was pissed off 

because he had just got in a fight with his girlfriend and that 

he knew he was driving like an idiot." The defendant indicated 

to the officer that Rock was his girl friend. This was the 

state of the evidence when the Commonwealth rested its case.

The defendant testified in his own defense, and Rock 

testified as well. Rock said that she had met the defendant 

several months before the incident. They developed a 

friendship; the relationship evolved as "boyfriend-girlfriend";

and they began dating. Although they were exclusive to one 

another, they did not live together. Rock testified that they

"got along beautifully. Great friends." The defendant agreed 

that they had a "[f]riendship at first and then boyfriendgirlfriend," and he described the relationship as "awesome," 

"great," and "probably the best." Rock acknowledged that their 

dating ("boyfriend-girlfriend") relationship did not end 

immediately after the incident.

There also was other evidence about the defendant's 

relationship with Rock. The defendant had cared for Rock while 

she was recovering from a medical issue; he "nursed her back" to 

health. He also drove her motor vehicle. On the day in 

question, they spent "a good part of the day" together, first at 

her home, and then doing errands. The altercation for which the 

defendant was charged was, according to the defendant, brought 

on by Rock accidentally calling him by her former boy friend's 

name. Rock also insisted, both to the witness and to the police 

officer, that there was no problem between her and the 

defendant, and "beg[ged] them" not to arrest the defendant.

3. Discussion. The defendant claims that the evidence was 

insufficient to support a conviction under G. L. c. 265, § 13M. 

Subsection (a) of the statute provides:

"Whoever commits an assault or assault and battery on a 

family or household member shall be punished . . . ."
4

Subsection (c) of § 13M provides:

"'family or household member' shall mean persons who (i) 

are or were married to one another, (ii) have a child in 

common regardless of whether they have ever married or 

lived together or (iii) are or have been in a substantive 

dating or engagement relationship."

Only the last definition is at issue in this case.

Because the defendant did not make a timely motion for a 

required finding at the close of the Commonwealth's case, we 

consider whether the evidence during the entire trial:

"viewed in a light most favorable to the Commonwealth, is 

sufficient so that the [fact finder] 'might properly draw 

inferences, not too remote in the ordinary course of 

events, or forbidden by any rule of law, and conclude upon 

all the established circumstances and warranted inferences 

that the guilt of the defendant was proved beyond a 

reasonable doubt.'"

Commonwealth v. McGovern, 397 Mass. 863, 868 (1986), quoting 

Commonwealth v. Chappee, 397 Mass. 508, 519 (1986). The only 

issue on appeal is whether the evidence is sufficient to permit 

an inference that Rock was a "family or household member," on 

the ground that she and the defendant "are or have been in a 

substantive dating . . . relationship." G. L. c. 265, § 13M (c) 

(iii). The statute further instructs that:

"the trier of fact shall determine whether a relationship 

is substantive by considering the following factors: the 

length of time of the relationship; the type of 

relationship; the frequency of interaction between the 

parties; whether the relationship was terminated by either 

person; and the length of time elapsed since the 

termination of the relationship."

Id. These factors are essentially identical to the factors set 

forth in G. L. c. 209A to determine whether a "substantive 

dating relationship" exists for purposes of that statute, which 

authorizes a person involved in a "substantive dating 

relationship" to obtain a civil abuse prevention order. See 

G. L. c. 209A, § 1.5 See also E.C.O. v. Compton, 464 Mass. 558,

 

5 General Laws c. 209A, § 1 (e), instructs courts to 

consider the following factors when determining whether a 
5

564 (2013); Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 142

(2006) ("conduct proscribed as abuse 'closely approximates the 

common-law description of assault'" [citation omitted]). In

determining the sufficiency of the evidence of a "substantive 

dating relationship" under G. L. c. 265, § 13M (c), and in 

otherwise interpreting and applying that statue, we therefore 

are guided by cases arising under c. 209A.

As we said in C.O. v. M.M. 442 Mass. 648, 650-651 (2004), 

with respect to c. 209A:

"[b]ecause the statute enumerates four factors to be 

considered in determining the existence of a 'substantive 

dating relationship,' there is sufficient language in the 

statute to enable judges to make informed and consistent 

determinations. We need not add to this language by 

interpretation."

That is no less true under c. 265, § 13M, even though the 

Commonwealth must prove the existence of such a relationship 

beyond a reasonable doubt under that statute.6 Both statutes 

identify the prohibited conduct and require the fact finder "to 

adjudge the existence of substantive relationships by 

considering [the enumerated] factors." E.C.O., 464 Mass. at 

564. These factors provide "explicit standards" both to 

ascertain culpability and to allow a person to conform his or 

her conduct accordingly (citation omitted). See Commonwealth v. 

Hendricks, 452 Mass. 97, 102 (2008). See also C.O., 442 Mass. 

at 654-656 (vacating abuse prevention order where judge failed 

to consider statutory factors and improperly relied on other 

considerations); Brossard v. West Roxbury Div. of the Dist. 

Court Dep't, 417 Mass. 183, 184-185 (1994) (sufficient evidence 

 

"substantive dating" relationship exists for purposes of 

c. 209A: "(1) the length of time of the relationship; (2) the 

type of relationship; (3) the frequency of interaction between 

the parties; and (4) if the relationship has been terminated by 

either person, the length of time elapsed since the termination 

of the relationship."

6 The statutes share a similar legislative purpose. "The 

Legislature enacted G. L. c. 209A in 1978 to address the problem 

of domestic violence." C.O., 442 Mass. at 651, citing St. 1978, 

c. 447, § 2. Similarly, G. L. c. 265, § 13M, was enacted "to 

establish a specific penalty for perpetrators of domestic 

abuse." St. 2008, c. 534 (preamble).
6

of "substantive dating relationship" for purposes of G. L. 

c. 209A, where defendant referenced victim as his "former girl

friend" in other c. 209A proceedings, and alleged that he saw 

her two or three times per week, even though she was living with 

another man).7

In this case, the evidence was sufficient to permit the 

jury to find that Rock and the defendant were involved in a 

"substantive dating relationship" on August 28, 2014. Both 

testified that they had been involved in the relationship for 

several months, and that it had developed into an exclusive 

"boyfriend-girlfriend" relationship. They described their 

relationship as "good" or "great." Among other things, the 

defendant took care of Rock when she had a medical condition; 

she allowed him to drive her vehicle; and they participated in 

daily activities together, such as running errands. The 

defendant had recently given Rock a "friendship ring." See 

Brossard, 417 Mass. at 184-185 (sufficient evidence to establish 

"substantive dating relationship where defendant referred to 

victim as his "former girlfriend"; saw her "two to three times a 

week"; and correspondence "reveal[ed] an emotional relationship 

which entailed substantially more than a few casual dates").8

Conclusion. The evidence warranted a finding beyond a 

reasonable doubt that the defendant was involved in a 

"substantive dating relationship" with the person he was charged 

with assaulting, in violation of G. L. c. 265, § 13M (c), and 

therefore that conviction is affirmed.

So ordered.

 

7 The factors enumerated in the proviso of G. L. c. 265, 

§ 13M (c), are not themselves elements of the offense. There 

does not need to be evidence as to each factor, let alone proof 

beyond a reasonable doubt as to any one or more of them. They 

are simply the legislative criteria that the fact finder must 

consider in determining whether the "substantive dating 

relationship" element has been proved. It is enough that the 

evidence on these factors, taken as a whole, warrants a finding 

of a substantive dating relationship beyond a reasonable doubt.

8 The fact that there was less evidence on the "frequency of 

interaction" between the defendant and Rock, and more evidence 

as to "the length of time of [their] relationship" and "the type 

of relationship," is not dispositive. See note 7, supra. The 

evidence, taken as a whole, was sufficient to warrant the 

requisite finding of a substantive dating relationship.
7

Michael A. Waryasz for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for 

the Commonwealth.

Max Bauer, for Tyrone Stampley, amicus curiae, submitted a 

brief.