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-783

COMMONWEALTH OF MASSACHUSETTS

vs.

DANIEL C. ARROYO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury in Worcester District Court found the defendant 

guilty of two counts of assault and battery, G. L. c. 265, 

§ 13A; witness intimidation, G. L. c. 268, § 13B; vandalizing 

property, G. L. c. 266, § 126A; larceny from a person, G. L. 

c. 266, § 25 (b); and assault and battery on a family member or 

household member, G. L. c. 265, § 13M (a). The defendant 

appeals, arguing that he was improperly doubly punished for a 

single offense because he was sentenced on the greater charge of 

assault and battery on a family or household member and its 

lesser included offense of assault and battery, such that the 

lesser charge must be dismissed. He also argues that his 

convictions on two counts of assault and battery are duplicative

of each other, such that one count must be dismissed. We vacate 
2

a single conviction for assault and battery, but affirm the 

remaining convictions.

Background. In the light most favorable to the 

Commonwealth, the jury could have found the following facts. 

During their three months of dating, the victim had moved in

with the defendant. On October 9, 2019, the two returned home 

from a party at about 2 to 3 A.M. when they got into an 

argument, the defendant accusing the victim of cheating on him. 

The defendant told the victim that if she tried to leave, he 

would cut her, find the victim's daughter and kill her.1 The 

defendant took the victim's phone, reviewed messages in which 

she said she was going to leave him, and then crushed the phone 

so that it broke and would not work.

A week or two later, the victim awoke to the defendant 

screaming in her face that she was cheating, as he straddled her 

body, pinning her down. The defendant pulled his head back and 

then slammed it into the victim's face, causing himself a bloody 

nose.

On October 22, 2019, the victim came home from work and 

told the defendant about an incident with a coworker. When the 

defendant again accused the victim of cheating, she grabbed her 

1 The victim testified that the defendant held a knife to 

her as he threatened her; however the jury acquitted the 

defendant of the charge of assault with a dangerous weapon based 

on the knife incident.
3

wallet and told him she was leaving. The defendant picked up a 

knife, and the victim ran. The defendant caught up to her at 

the doorway of the stairs, grabbed her and slammed her body into 

the door frame. The victim's head got smashed; she felt dizzy 

and crawled back to bed. The defendant took the victim's wallet 

from her and threw it out the window.2 He then ran out of the 

house, picked up the wallet, got into his car and drove away. 

The victim left the house and ran to a nearby convenience 

store for help, after which she reported to the police. 

Discussion. The defendant's claims on appeal implicate the 

double jeopardy clause of the Fifth Amendment, specifically the 

protection against multiple punishments for the same offense; 

because the claims were not preserved in the trial court, 

however, we review for a substantial risk of miscarriage of 

justice. See Commonwealth v. Traylor, 472 Mass. 260, 267 (2015) 

(unpreserved claim of violation of double jeopardy based on 

multiple punishments for same offense, reviewed under 

substantial risk of miscarriage of justice).

2 The victim testified that, just before taking her wallet, 

the defendant picked up a side table and swung it at her but 

missed. The jury acquitted the defendant of assault with a 

dangerous weapon based on the table incident. 
4

1. Double punishment for single offense.3 The defendant 

argues that the judge erred in sentencing him for the conviction 

of assault and battery on a family or household member, as well 

as for the lesser included offense of assault and battery. It 

is true that one cannot be sentenced for both the greater and 

lesser included of a single offense. See Commonwealth v. Vick,

454 Mass. 418, 433 n.15 (2009). It is also true that assault 

and battery is a lesser included offense of assault and battery 

on a family or household member. See Commonwealth v. D'Amour, 

428 Mass. 725, 748 (1999). The question here is "whether there 

is any significant possibility that the jury may have based 

convictions of greater and lesser included offenses on the same

act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). 

Whereas here the judge gave no instruction on separate and 

distinct acts, the prosecutor did not relate particular evidence

to specific charges and the verdict slips did not tie facts to 

offenses, we conclude that there is a significant possibility 

that the jury premised the conviction of assault and battery on 

a family or household member on the same facts forming the basis 

of one of the convictions for assault and battery. As a 

consequence, one of the convictions for assault and battery must 

3 The Commonwealth agrees that the defendant was 

impermissibly sentenced on a greater charge and its lesser 

included offense.
5

be vacated. See Commonwealth v. Mello, 420 Mass. 375, 398 

(1995) (appropriate remedy is to vacate both sentence and 

conviction on lesser included offense).

2. Duplicative convictions. The defendant also argues 

that the two convictions for assault and battery are duplicative 

of each other because they must be premised on the same set of 

facts. He reasons that the original complaint charged him with 

two separate assault and batteries by means of a dangerous 

weapon, "to wit: his head," and that the evidence at trial

showed only one assault and battery committed by means of the 

defendant's head.

First, we note that the dangerous weapon alleged in the 

original complaint was not "his head" but rather "a head." 

Second, there was evidence that the defendant used his head to 

assault and batter the victim on one occasion. But there was 

another occasion in which the defendant slammed the victim's 

body into a door frame, such that her "head got smashed." In 

any event, the original complaint was amended just prior to 

trial, without objection, such that the jury heard only that the 

defendant was charged with two counts of assault and battery, 

without any reference to the manner in which they were 

accomplished. Because there was evidence of two distinct 

assault and batteries committed by the defendant on the victim, 
6

the two convictions are not duplicative.4 See Commonwealth v. 

Wooden, 103 Mass. App. Ct. 677, 683 (2024).

Conclusion. On count two of the amended complaint, 

charging assault and battery, the judgment is vacated, the 

verdict is set aside, and that count is to be dismissed.5 The 

remaining judgments of conviction are affirmed.

So ordered.

By the Court (Desmond, Shin & 

Singh, JJ.6),

Assistant Clerk

Entered: June 21, 2024.

4 Although the original complaint lists the assault and 

batteries as having been committed on October 9 and 14 of 2019, 

the evidence at trial was that the head-butting incident took 

place "a week or two later," after the events of October 9, 

2019, and the slamming into the door frame incident took place

on October 22, 2019. As the defendant acknowledges, the date of 

the offense is not an element of the crime that must be proven;

so long as there is evidence supporting the commission of the 

charged conduct, any variance as to the date will not warrant 

reversal absent prejudice arising out of the variance. See 

Commonwealth v. Lester, 70 Mass. App. Ct. 55, 70 n.16 (2007). 

The defendant makes no claim on appeal that he was so 

prejudiced.

5 "Because the defendant's sentence [on count two] did not 

increase the amount of time that he would spend incarcerated, 

. . . we need not remand this matter for resentencing."

Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).

6 The panelists are listed in order of seniority.