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-808

COMMONWEALTH

vs.

LUIS ORTA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted after a jury-waived trial of assault and battery 

by means of a dangerous weapon (a sandal), G. L. c. 265, 

§ 15A (b), on his eight year old son, the defendant appeals.1 He 

argues that the judge should have allowed his motion for a 

required finding of not guilty because the evidence did not 

establish the elements of the crime and the prosecutor 

misrepresented the victim's testimony in her closing argument. 

As we conclude that there was insufficient evidence to prove 

1 The defendant was also charged with assault and battery by 

means of a dangerous weapon (a spatula), G. L. c. 265, 

§ 15A (b); assault and battery on a child causing bodily injury, 

G. L. c. 265, § 13J (b); and intimidation of a witness, G. L. 

c. 268, § 13B. The judge acquitted the defendant of these three 

charges.
2

that the sandal was used as a dangerous weapon, we vacate the 

judgment of conviction on the charge of assault by means of a 

dangerous weapon, order the entry of a new judgment of 

conviction on the lesser included offense of assault and 

battery, G. L. c. 265, § 13A (a), and remand for resentencing.

Background. The complaint alleged that between May 26 and 

30, 2017, the defendant assaulted and beat the victim by means 

of a dangerous weapon, a sandal. At trial, the Commonwealth's 

case consisted of the testimony of the victim and photographic

exhibits. At the close of the Commonwealth's case, the 

defendant moved for a required finding of not guilty, which the 

judge denied. The defendant then testified that during Memorial 

Day weekend 2017 he did not discipline the victim and did not 

hit him, but on another occasion pulled the victim's ear. The 

judge found the defendant guilty, and the defendant appealed.

Discussion. 1. Dangerous weapon. The defendant argues 

that he was entitled to a required finding of not guilty because 

the Commonwealth did not prove that he intentionally touched the 

victim with the sandal in a manner using it as a dangerous 

weapon.

When reviewing for sufficiency of the evidence, we consider 

the evidence "in the light most favorable to the Commonwealth,

and determine whether a rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt"
3

(citation omitted). Commonwealth v. Lagotic, 102 Mass. App. Ct. 

405, 407 (2023). See Commonwealth v. Latimore, 378 Mass. 671, 

677 (1979). To prove assault and battery by means of a 

dangerous weapon, the Commonwealth was required to establish

that the defendant committed an "intentional, unjustified 

touching, however slight, by means of [a] dangerous weapon." 

Commonwealth v. Appleby, 380 Mass. 296, 306 (1980). See 

Instruction 6.300 of the Criminal Model Jury Instructions for 

Use in the District Court (2019). To prove that an object is a 

dangerous weapon, the Commonwealth must establish either that it

is dangerous per se or it is "used in a manner that makes it 

dangerous in fact." Commonwealth v. Leonard, 90 Mass. App. Ct. 

187, 191 (2016). As a sandal is not an object that is dangerous 

per se, the Commonwealth needed to prove that the defendant used 

it in a manner "capable of producing serious bodily harm." 

Commonwealth v. Mattei, 455 Mass. 840, 844 (2010), quoting 

Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).

During direct examination of the victim, the prosecutor 

stated that she was showing the victim "the third page," from 

which we infer that she showed the victim Exhibit 3.2 Exhibit 3 

consisted of two photographs, one of the victim's ear and the 

2 When referring to those exhibits during the victim's 

testimony, the prosecutor did not mention the exhibit number, 

but rather referred to what she was showing the victim as "the 

third picture or the third page."
4

other of his neck. Without specifying which photograph she was 

referring to, the prosecutor elicited the following testimony:

Prosecutor: "Okay. So we're going to look at the third 

picture or the third page. What's that a picture of?"

Victim: "This right here, I kind of got -- he kind of got 

mad and -- I forgot. I can't answer that."

Prosecutor: "When you say he, who is he?"

Victim: "Dad [the defendant] . . . . Sometimes if you 

didn't listen, he'd grab something like harmful and hit us 

with it. And this one is the same thing as getting --

being tugged by the ear."

Prosecutor: "And that's a picture of your ear?"

Victim: "Yes."

Prosecutor: "You said sometimes he would grab things?"

Victim: "Yeah; that are harmful."

Prosecutor: "Like what?"

Victim: "Like a -- like sandals . . . . Sandals. And 

other harmful things, except weapons. No weapons. He 

never did that."

. . . .

Prosecutor: "What would he do with the sandal?"

Victim: "He -- he'd, if -- he'd sometimes give -- give us 

a second chance. If you don't follow what he said, he will 

just -- he will -- he will just come over and -- and use 

that harmful -- harmful object to -- to harm us."

Prosecutor: "And how would he harm you?"

Victim: "He'd -- he'd hit us with it sometimes. If we 

didn't really listen, we'd probably get in trouble. But 

sometimes he'd put us in time-out. Sometimes, but not --

not always."

Prosecutor: "Okay. Do you remember what part of your body 

he would hit you with the sandal with?"
5

Victim: "I can't answer that. I forgot about it."

Even assuming that testimony, in the light most favorable 

to the Commonwealth, amounted to proof that the defendant hit 

the victim with a sandal "to harm [him]," it did not suffice to 

prove that the defendant used the sandal in a manner capable of 

producing "serious bodily harm." Mattei, 455 Mass. at 844. 

There was no evidence about the size, weight, or material of the 

sandal, or the force with which the defendant handled it. See 

Appleby, 380 Mass. at 307 n.5 (relevant factors in determining 

whether object is dangerous include "nature, size, and shape of 

the object as well as the way in which it is handled"). Nor was 

there evidence about where on the victim's body he was hit with 

the sandal. Contrast Commonwealth v. Fernandez, 43 Mass. App. 

Ct. 313, 316 n.8 (1997) (kick to groin is "more than capable of 

causing severe injury without regard to the manner and force of 

the kick"). The Commonwealth never established any connection 

between the victim's testimony that he was "hit" with the sandal 

and the photographs of injuries. And, in response to a direct 

question about where the defendant hit him with the sandal, the 

victim replied, "I can't answer that. I forgot." Therefore,

the Commonwealth did not prove that the defendant used the 

sandal in a manner capable of producing serious bodily harm, and 

thus did not prove that it was a dangerous weapon.
6

When a fact finder "convicts a defendant of a crime despite 

insufficient evidence of a required element" and the "remaining 

untainted elements include all the elements of a lesser included 

offense, we generally correct the error by vacating conviction 

of the greater crime, and remanding for entry of conviction of 

the lesser included offense." Commonwealth v. Garrett, 473 

Mass. 257, 266 (2015), quoting Commonwealth v. Labadie, 467 

Mass. 81, 88, cert. denied sub nom. Carcieri v. Massachusetts, 

574 U.S. 902 (2014). In this case, the evidence proved the 

elements of the lesser included offense of simple assault and 

battery, G. L. c. 265, § 13A (a). See Commonwealth v. Kelly, 

470 Mass. 682, 699 (2015). The victim testified that the 

defendant hit him with "harmful object[s]," including a sandal. 

In those circumstances, we order entry of a conviction on the 

lesser included offense of assault and battery.

2. Date of offense. The defendant argues that the 

Commonwealth did not prove that the crime occurred during the 

four-day period alleged in the complaint, May 26 to 30, 2017. 

The argument is unavailing. "These dates are not an essential 

element of the crime." Commonwealth v. Sullivan, 492 Mass. 36, 

48 n.23 (2023). The lack of evidence that the assault and 

battery occurred during those four days does not, in the absence 

of prejudice, warrant reversal of the defendant's conviction.
7

See G. L. c. 277, § 35; Commonwealth v. Lester, 70 Mass. App. 

Ct. 55, 70 n.16 (2007).

3. Parental discipline defense. The defendant claims, for 

the first time on appeal, that the Commonwealth did not prove 

that the assault and battery was unjustified because as a parent 

he was entitled to use reasonable force to discipline the 

victim. The problem with his claim is that he never raised a 

parental privilege defense at trial.

Parental privilege is an affirmative defense. See

Commonwealth v. Dorvil, 472 Mass. 1, 12-13 (2015). "As with 

other affirmative defenses," if the parental privilege defense 

is properly raised before the fact finder, "the Commonwealth 

bears the burden of disproving at least one prong of the defense 

beyond a reasonable doubt." Id. at 13. Had the defendant 

properly raised the parental privilege defense, the Commonwealth 

would have been required to prove that (1) the force used 

against the victim was unreasonable, (2) the force used was not 

reasonably related to preventing or punishing the victim's 

misconduct, or (3) the force caused (or created a substantial 

risk of causing) physical harm, gross degradation, or severe 

mental distress. Id. at 12.

Rather than raise a parental privilege defense, the 

defendant testified that he never hit the victim with any 

objects and that specifically during Memorial Day weekend 2017 
8

he did not discipline the victim and did not hit him. In those 

circumstances, a parental privilege defense was not available to 

him. Cf. Commonwealth v. Grafton, 93 Mass. App. Ct. 717, 722-

723 (2018) (defendant did not raise defense of authority to 

remove smoke detectors, but testified "he had nothing to do 

with" their removal, so defense of authority was "unavailable to 

him"). Contrast Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 

462-463 (2018) (defendant raised parental privilege defense).

4. Closing argument. The defendant contends that in her

closing argument the prosecutor misrepresented the victim's 

testimony. Specifically, the defendant takes issue with the 

prosecutor's argument that the victim was "very clear in regards 

to –- and I believe it was Exhibit No. 3. There was a mark on 

the back of his neck. He stated that was from being hit with a 

sandal." The defendant did not object, and so we review for a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Martinez, 67 Mass. App. Ct. 788, 796 (2006).

As discussed above, the victim did not testify that the 

defendant used the sandal to cause any injury depicted in the

photographic exhibits. But even if the prosecutor erred in 

making that argument, there was no substantial risk of a 

miscarriage of justice, because we have ordered that so much of 

the conviction must be vacated as alleged that the defendant 

used the sandal as a dangerous weapon. Moreover, when a judge 
9

is the fact finder at trial, "it is presumed that the

judge . . . applies correct legal principles" (quotation and 

citation omitted). Commonwealth v. Daley, 66 Mass. App. Ct. 

254, 257 (2006). As this trial was jury-waived, we assume, as 

we must, that the judge correctly applied the law and relied on 

his own memory of the evidence. In those circumstances, we 

discern no substantial risk of a miscarriage of justice.

Conclusion. The judgment of conviction on the complaint 

charging the defendant with assault and battery by means of a 

dangerous weapon, G. L. c. 265, § 15A (b), is vacated, and the 

finding is set aside. A new judgment of conviction shall enter 

on so much of the complaint as alleges the lesser included 

offense of assault and battery, G. L. c. 265, § 13A (a). The 

matter is remanded for resentencing.

So ordered.

By the Court (Shin, Grant & 

Smyth, JJ.3),

Clerk

Entered: September 27, 2024.

3 The panelists are listed in order of seniority.