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, theref ore, 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 th e victim's testimony in her closing argumen t. As we conclude that there was insufficient evidence to prove

1 The defendant was also charged with assault and batter y 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, § 1 3 J ( b ) ; and intimidation of a witness, G. L. c. 26 8 , § 13B
. The judge acquitted the defendant of these three charges
.2

that the sandal w as 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 alleg ed that between May 26 and 30, 2017, the defendant assaulted and beat the victim by means of a dangerous weapon, a sandal
. A t trial , t he 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
. T he 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 sufficien cy 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 , 1 02 Mass. App. Ct. 405 , 407 ( 2023 ). See Commonwealth v. Latimore , 378 Mass
. 671, 677 (1979). T o 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 M odel Jury Instructions for Use in the District Court (2 019)
. 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, 19 1 (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 E xhibit 3
. 2 Exhibit 3 consist ed 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 :
P rosecutor : "Okay. So we're going to look at the third picture or the third page. What's that a picture of?"
V ictim : "This right here, I kind of got

-- he kind of got mad and

-- I forgot. I can't answer that."
P rosecutor : "When you say he, who is he?"
V ictim : "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."
P rosecutor : "And that's a picture of your ear?"
V ictim : "Yes."
P rosecutor : "You said sometimes he would grab things?"
V ictim : "Yeah; that are harmful."
P rosecutor : "Like what?"
V ictim : "Like a

-- like sandals
. . . . Sandals. And other harmful things, except weapons. No weapons. He never did that."

. . . . P rosecutor : "What would he do with the sandal?"
V ictim : "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."
P rosecutor : "And how would he harm you?"
V ictim : "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."
P rosecutor : "Okay. Do you remember what part of your body he would hit you with the sandal with?"5

V ictim : "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
t here evidence about where on t h e 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 w ithout regard to the manner and force of the kick")
. T he Commonwealth never established any connection between th e 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 element s of a lesser included offense, we g enerally correct the e rror 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 , t he evidence proved the elements of the lesser included offense of simple assault and battery , G. L. c. 265, § 13 A ( a )
. See Commonwealth v. Kelly , 470 Mass. 682 , 699 (201 5 ). T he 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
. T he defendant argu es 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
. " T he se 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
. T he 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 b ears the burden of disproving at least one prong of the defense beyond a reasonable doubt." Id . at 13. H ad 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 cause d (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 20178

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) ( d efendant did not raise defense of authority to

remove smoke detectors , but testified " he had nothing to do with " the ir removal , so defense of authority was " unavailable to him"). Contrast Commonwealth v. Rosa , 94 Mass. App. Ct. 458, 46 2

- 463 (2018) ( defendant rais ed parental privilege defense ). 4. Closing argument . The defendant contend s that in h er 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 E xhibit 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 , 7 96 (20 06 ). As discussed above, the victim did not testify that the defendant used the sandal to cause any injury depicted in the photograph ic exhibits
. But e ven if the prosecutor erred in making that argument , there was no substantial risk of a miscarriage of justice , because w e have ordered that so much of the conviction must be vacated as alleged that the defendant used the sandal as a dangerous weapon. Moreover, w hen a judge9

is the fact finder at trial, "it is presumed that the judge
. . . applie s 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.