Commonwealth v. Manolo M., a juvenile

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22-P-787                                             Appeals Court
22-P-888
22-P-897

              COMMONWEALTH vs. MANOLO M., a juvenile
                    (and three companion cases1).


                Nos. 22-P-787, 22-P-888, & 22-P-897.

        Plymouth.      September 8, 2023. - December 15, 2023.

            Present:   Green, C.J., Desmond, & Hand, JJ.


Delinquent Child. Juvenile Court, Delinquent child. Assault
     and Battery. Police Officer. Practice, Criminal, Required
     finding, Instructions to jury. Self-Defense. Resisting
     Arrest. Constitutional Law, Freedom of speech and press.
     Probable Cause.


     Complaints received and sworn to in the Plymouth County
Division of the Juvenile Court Department on October 4, 2019.

    The cases were tried before Dana Gershengorn, J.


    Eva G. Jellison for Frederick F.
    Melissa Allen Celli for Angela A.



    1  Commonwealth vs. Frederick F., a juvenile (22-P-787);
Commonwealth vs. Angela A., a juvenile (22-P-897); and
Commonwealth vs. Manolo M., a juvenile (22-P-888). We adopt the
same pseudonyms for the juveniles as used by the Supreme
Judicial Court in Commonwealth v. Manolo M., 

(2021).
                                                                   2


     Michelle Menken for Manolo M.
     Elizabeth A. Mello Marvel, Assistant District Attorney, for
the Commonwealth.


     GREEN, C.J.    After a trial in the Juvenile Court, a jury

adjudicated three juveniles, Manolo M., Frederick F., and Angela

A., delinquent on the charge of resisting arrest and also

adjudicated Manolo delinquent on the charge of assault and

battery on a police officer (ABPO).2   On appeal, the juveniles

argue that the evidence was insufficient to support each

adjudication.   Manolo and Angela also argue that the jury

instructions were deficient in various respects.    We conclude

that an error in the self-defense instruction on the offense of

ABPO created a substantial risk of a miscarriage of justice,

requiring that we vacate Manolo's adjudication with respect to

that offense.   We affirm the juveniles' adjudications for

resisting arrest.

     The incidents giving rise to the charges leading to the

present appeals arose out of a somewhat volatile gathering of

teenagers following an early dismissal of Brockton high school

students from school, as generally described in Commonwealth v.




     2 All other charges against the juveniles were dismissed
prior to trial consistent with the decision in Manolo M., 486
Mass. at 694-695.
                                                                       3


Manolo M., 

, 679-681 (2021).3      We address the

juveniles' various claims of error in turn, incorporating

additional factual details as necessary in our discussion of

each claim.

     1.   Manolo.   a.   ABPO.   i.   Motion for required finding.

Manolo first contends that his adjudication on the ABPO charge

must be reversed because there was insufficient evidence that he

touched the police officer.

     "Challenges to the sufficiency of the evidence are

evaluated under the Latimore standard, that is, 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. Witkowski, 

, 679 (2021), quoting

Commonwealth v. Latimore, 

 (1979).       Where, as

here, the juvenile moved for a required finding at the close of

the Commonwealth's case and renewed the motion at the close of

all evidence,

     "[w]e consider the state of the evidence at the close of
     the Commonwealth's case to determine whether the
     defendant's motion should have been granted at that time.
     We also consider the state of the evidence at the close of

     3 Though the factual summary included in that opinion was
drawn solely from the police reports, and the juveniles
contested the characterization of the events in those reports,
see Manolo M., 486 Mass. at 679 n.4, the general contours of the
description in that opinion finds support in the evidence at the
subsequent trial.
                                                                     4


     all the evidence, to determine whether the Commonwealth's
     position as to proof deteriorated after it closed its case"
     (citation omitted).

Commonwealth v. Copeland, 

 (2019).

     To prove an assault and battery, the Commonwealth must

prove "that the [juvenile] touched the victim without having any

right or excuse to do so and that the [juvenile]'s touching of

the victim was intentional."    Commonwealth v. Mitchell, 

 (2006).   Viewed in the light most favorable to

the Commonwealth, the evidence was sufficient to establish the

following.   Manolo tried to run past Brockton police Officer

Daniel Vaughn to check on his friend who was engaged in a

struggle with other officers.    Vaughn pushed Manolo back.

Manolo began to rock back and forth in front of Vaughn with his

fists up and stated, "let's go mother f'er, let's go."    Manolo

then swung his closed fist at Vaughn's head, and Vaughn

"blocked" that punch.4   From that testimony, a reasonable juror


     4 The testimony concerning the blocked punch was elicited on
cross-examination. As this court previously acknowledged,
"[o]ur cases do not specify whether testimony on cross-
examination of the Commonwealth's witness is considered part of
the Commonwealth's case-in-chief for purposes of a directed
verdict, or is only to be included in the calculus of adequacy
in a reappraisal of all the evidence after the defendant has
rested." Commonwealth v. Ruano, 

, 103 n.10
(2015). We conclude that such testimony can be considered as
part of the Commonwealth's case-in-chief for purposes of a
required finding. See Copeland, 

 (required
finding motion requires consideration of "the state of the
evidence at the close of the Commonwealth's case" [citation
omitted]). Cf. Commonwealth v. Mauricio, 

, 597
                                                                    5


could have concluded that Manolo committed an assault and

battery by touching Vaughn while attempting to land a punch.

Cf. Webster's Third New International Dictionary 235 (2002)

("block" means "to obstruct or interfere with [an opponent, his

play, or his movement] by bodily contact").

    ii.   Self-defense instruction.   Manolo further argues that

the judge erred in including the language pertaining to deadly

force in the self-defense instruction, and that the judge should

have provided instruction on defense of another.   Because Manolo

did not object, we review for a substantial risk of a

miscarriage of justice.   See Commonwealth v. Souza, 

, 635 (2023).

    "To decide whether an error creates a substantial risk of a

miscarriage of justice, we must determine 'if we have a serious

doubt whether the result of the trial might have been different




(2017) ("In determining the sufficiency of the evidence, we
consider 'the evidence in its entirety, including, not
excluding, that admitted [at] trial but found inadmissible on
appeal'" [citation omitted]). To the extent that Manolo asserts
that his trial counsel was ineffective for eliciting testimony
about the blocked punch on cross-examination, Manolo did not
raise this claim through a new trial motion, and this is not one
of the "exceptional" circumstances where such a claim can be
resolved on direct appeal. Commonwealth v. Zinser, 

, 809 n.2 (2006). See Commonwealth v. Davis, 

 (2019) (motion for new trial preferred method of raising
ineffective assistance of counsel claim). In light of our
conclusion that Manolo's adjudication for ABPO must be vacated
on other grounds, we do not otherwise address his ineffective
assistance claim.
                                                                      6


had the error not been made'" (citation omitted).     Commonwealth

v. Desiderio, 

, 810 (2023).

      "In making this determination, we consider four factors,
      where applicable: '[(1)] the strength of the
      Commonwealth's case, [(2)] the nature of the error, [(3)]
      the significance of the error in the context of the trial,
      and [(4)] the possibility that the absence of an objection
      was the result of a reasonable tactical decision'"
      (citation omitted).

      On the offense of ABPO, the judge correctly determined that

Manolo was entitled to a self-defense instruction including the

use of nondeadly force.     However, in delivering the supplemental

instruction on the reasonable apprehension requirement, the

judge included a portion of the model instructions pertaining to

circumstances where the use of deadly force is at issue.     See

Instruction 9.260 of the Criminal Model Jury Instructions for

Use in the District Court (2009).5     Because use of deadly force

was not at issue in this case, the inclusion of the phrase "of

great bodily harm or death" in the instruction was error.     See




      5   Specifically, the judge instructed,

      "A person cannot lawfully act in self defense unless he is
      attacked or is immediately about to be attacked. The
      Commonwealth may prove that the juvenile did not act in
      self defense by proving beyond a reasonable doubt that
      there was no overt act, either words, a gesture, or some
      other action, that gave rise to a reasonable belief of
      attack, or immediate danger of great bodily harm or death"
      (emphasis added).
                                                                      7


Commonwealth v. Noble, 

 (1999) (nondeadly force

includes "force of one's fists, hands, and arms").

    We accordingly consider the significance of the error in

the context of the trial.    Whether Manolo acted in self-defense,

including the degree of risk faced by Manolo, was a live issue

at trial.   Defense counsel argued that, in light of the size

disparity between Vaughn and Manolo (Vaughn was eight inches

taller and 100 pounds heavier), the injuries that Manolo

suffered from the incident, and the "hard takedown" that twice

caused Manolo to fall to the ground, Manolo was entitled to

protect himself.   The Commonwealth's evidence establishing that

Manolo did not act in self-defense was not overwhelming, and

required resolution by the fact finder.    See Desiderio, 491

Mass. at 817 (appellate court's role is "not to sit as a second

jury" [citation omitted]).   The effect of the erroneous

instruction materially lowered the Commonwealth's burden of

proof; by virtue of the erroneous instruction the Commonwealth

was able to prove that Manolo did not act in self-defense by

proving there was "no overt act . . . that gave rise to a

reasonable belief of attack, or immediate danger of great bodily

harm or death" (emphasis added).    See Commonwealth. v. Baseler,

 (1995) (instruction on self-defense

relating to deadly force on charge of assault and battery

impermissibly lowered Commonwealth's burden of proof).     See also
                                                                     8


Commonwealth v. Walker, 

 (2005) (standards for

use of deadly and nondeadly force are "distinct, self-contained

definitions of self-defense"); Commonwealth v. Pike, 

 (1998) ("The right to use nondeadly force arises at a

'somewhat lower level of danger' than the right to use deadly

force" [citation omitted]).     Finally, there is no realistic

possibility that defense counsel's failure to object was a

reasonable tactical decision.     See Desiderio, 491 Mass. at 819-

820 (no reasonable tactical decision to fail to object to

instructions relieving Commonwealth of burden to prove required

element beyond reasonable doubt).

     We are mindful that "[s]elf-defense is a sensitive part of

the jury instructions in a criminal trial, and inappropriate

language in the instructions can readily lead to a result in

which an appellate court lacks confidence" (citation omitted).

Commonwealth v. Cataldo, 

 (1996).     The

erroneous instruction in the present case created a substantial

risk of a miscarriage of justice and, as a result, Manolo's

adjudication for ABPO must be vacated.6




     6 To the extent Manolo also claims error with respect to the
judge's failure to include a defense of another instruction, we
disagree based on the absence of evidence that Manolo attempted
to intervene on his friend's behalf. Manolo's own testimony was
that he did not intend to interfere in the struggle between his
friend and the officers when he attempted to run past Vaughn; he
merely wanted to "check on" his friend and "see if he was okay."
                                                                      9


    b.    Resisting arrest.   On the charge of resisting arrest,

Manolo argues that there was insufficient evidence that he

offered resistance at the time Vaughn was effectuating his

arrest.

    "A person commits the crime of resisting arrest if he
    knowingly prevents or attempts to prevent a police officer,
    acting under color of his official authority, from
    effecting an arrest of the actor or another, by: (1) using
    or threatening to use physical force or violence against
    the police officer or another; or (2) using any other means
    which creates a substantial risk of causing bodily injury
    to such police officer or another."

G. L. c. 268, § 32B (a).   "[T]he crime . . . is committed, if at

all, at the time of the 'effecting' of an arrest."     Commonwealth

v. Grant, 

 (2008), quoting

Commonwealth v. Grandison, 

 (2001).    "An

arrest is effected when there is (1) 'an actual or constructive

seizure or detention of the person, [2] performed with the

intent to effect an arrest and [3] so understood by the person

detained.'"   

 quoting 

    "The

standard for determining whether a defendant understood that he




We likewise reject Manolo's argument that the judge's decision
not to instruct on the "reasonable juvenile standard" was
prejudicial error. That standard has been considered in the
context of juvenile sentencing, see Commonwealth v. Odgren, 

 (2019), and in the context of Miranda warnings, see
Commonwealth v. A Juvenile, 

 (1988), but not
in the context of the use of nondeadly force in self-defense.
In any event, in light of the absence of any evidence on this
issue at trial, we discern no error in the judge's decision to
omit the proposed instruction.
                                                                   10


was being arrested is objective -- whether a reasonable person

in the defendant's circumstances would have so understood."

     After the events described above, Vaughn kicked Manolo,

Manolo approached again, and both fell to the ground.   Vaughn

was "trying to place [Manolo] under arrest."   Vaughn explained,

"I was telling him he was under arrest, and at that point,

another officer arrived and assisted me in placing him in

handcuffs."   That other officer, Brockton school police Officer

Spencer Benoit, came to assist after he observed "Vaughn having

an altercation with a student from the high school, and [Vaughn]

was trying to get him to comply with his commands, telling him

[to] place his hands behind his back."   Benoit "assisted with

grabbing an arm and putting the hand behind [Manolo's] back so

Officer Vaughn could apply handcuffs."   A reasonable juror could

conclude from this testimony that Manolo was actively resisting

Vaughn's efforts to effectuate his arrest after being advised by

Vaughn that he was under arrest.7   See Grandison, 

 (evidence of resisting arrest sufficient when as officer

tried to handcuff him, defendant "was shouting obscenities,

stiffened his arms and, for a second, was able to pull one of




     7 This inference was bolstered by Manolo's own testimony
that while on the ground, "multiple officers [were] trying to
arrest [him]."
                                                                  11


his arms free," never complied with request to put hands behind

back, and ultimately required two more officers to assist in

getting arms behind back).   See also Commonwealth v. Maylott, 

 (2006); Commonwealth v. Katykhin, 

 (2003).

     2.   Frederick.   Frederick argues that the judge erred in

denying his pretrial motion to dismiss the criminal complaint on

the charge of resisting arrest, and in denying his motions for a

required finding on that charge at the close of the

Commonwealth's case and at the conclusion of trial.8

Specifically, he argues that the officers lacked a good faith

basis to believe that Frederick committed a crime when they

attempted to arrest him.

     To support an adjudication of delinquency on the offense of

resisting arrest, the Commonwealth must prove that "the officers

acted 'under color of [their] official capacity' in attempting

the arrest" (citation omitted).    Commonwealth v. Urkiel, 

 (2005).    "A police officer acts under

the color of his official authority when, in the regular course

of assigned duties, he is called upon to make, and does make, a

judgment in good faith based upon surrounding facts and

circumstances that an arrest should be made by him."   G. L.


     8 The same judge resolved the motion to dismiss and served
as the trial judge.
                                                                     12


c. 268, § 32B (b).     These requirements reflect "a compromise of

two views:   (i) the person arrested has no right to resist the

arrest even if illegal, [and] (ii) [the person arrested] has a

right to resist (proportionately) an illegal arrest."     

     a.   Motion to dismiss.   At a minimum, the facts alleged in

the complaint supported a conclusion that Vaughn had a good

faith basis to believe that Frederick could be arrested for

disorderly conduct.9    A person engages in disorderly conduct

under G. L. c. 272, § 53 (b), if the person "'with purpose to

cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof,' engaged in 'fighting or threatening,

or in violent or tumultuous behavior' or created 'a hazardous or

physically offensive condition by any act which serves no

legitimate purpose of the actor.'"     Commonwealth v. Cooper, 

 (2021), quoting Commonwealth v. Accime,

 (2017).    "'[T]umultuous behavior,' for

the purposes of § 53, includes the refusal to obey a police




     9 Frederick was charged with disorderly conduct, disturbing
the peace, and interfering with a police officer. Those charges
were dismissed prior to trial as Frederick's "first episode of
minor misdemeanor level misconduct" under G. L. c. 119, § 52.
Manolo M., 486 Mass. at 694. The officers at the scene had no
basis to know this legal limitation for proceeding with those
charges, and the juveniles do not argue that the subsequent
dismissal of these claims on that basis raises any question of
the officers' good faith basis for the arrest.
                                                                  13


order."   Commonwealth v. Marcavage, 

(2009), cert. denied, 

 (2010).

    The police reports supporting the application stated that

there were approximately one hundred students on Florence Street

when police arrived.   The street was "entirely blocked" due to

the crowd refusing to disperse despite police broadcasting

orders to do so over a microphone and using cruisers with

activated lights and sirens to attempt to clear the roadway.      As

the police arrested Manolo and his friend, the crowd ran closer

and surrounded the police.   After those arrests were

effectuated, a large crowd remained and refused orders to leave

the area.   Frederick ignored several verbal warnings to the

leave, continued to entice the crowd to stay and become more

agitated, and walked slowly in the middle of the street yelling,

"Fuck you pigs I aint [sic] moving shit!"

    Frederick argues that the officers had no good faith basis

to arrest him, because his words and actions were protected

within his rights, under the First Amendment to the United

States Constitution, to criticize the police, see O'Brien v.

Borowski, 

 (2012), and to observe police

officers engaged in their duties in a public place, see Glik v.

Cunniffe, 

 (1st Cir. 2011).    We recognize that

"[t]he police do not . . . have unfettered discretion to arrest

someone for speech that annoys or offends."   Commonwealth v.
                                                                    14


Adams, 

 (2019).   However, "[i]n deciding

whether to arrest, police officers often make split-second

judgments," and the decision whether conduct -- such as standing

in the street, repeatedly failing to comply with police orders

to disperse, and encouraging others to stay on a chaotic scene -

- is afforded First Amendment protection requires a finely

nuanced analysis of the particular facts.    Lozman v. Riviera

Beach, 

 (2018).     Though some of Frederick's

conduct may have been within the protection of the First

Amendment, "that protection did not entitle him to disregard

police commands reasonably calculated at ensuring public safety

amid potentially dangerous circumstances."    Marcavage, 

.    Here, the alleged conduct was sufficient to

give the officers a good faith basis to believe probable cause

supported Frederick's arrest.

    b.   Motions for required finding.    The evidence at trial

also was sufficient to deny the motions for a required finding

of not delinquent.    Viewing the evidence in the light most

favorable to the Commonwealth, a rational jury could have found

the following.    The scene confronting the officers upon their

arrival was loud and chaotic.    Students were running around,

swearing, refusing to leave, and physically intervening with

officers.   Frederick refused to leave the area despite being

asked multiple times to do so.    Instead, he stood in the street
                                                                   15


yelling, "f--- you" and "we're not leaving."    When Officer

Vaughn attempted to arrest Frederick, he began to pull away,

would not put his arms behind his back, and continued to fight

as another officer joined to assist Vaughn.    He was handcuffed

after a third officer, following a verbal warning, put his taser

directly on Frederick and stunned him.     Viewed in the light most

favorable to the Commonwealth, the evidence that Frederick

refused to leave the area, encouraged others to stay, and

continued to block the street was sufficient to support a

conclusion that Vaughn made a judgment in good faith that

probable cause supported Frederick's arrest.

    To the extent Frederick argues that evidence about the

chaotic and volatile nature of the scene -- and in particular

the number of people present -- deteriorated after the close of

the Commonwealth's case, we disagree.    Frederick contends that

the video recording submitted in evidence during the juveniles'

case-in-chief demonstrates that "the volatility of the situation

was overstated by a number of officers" because it depicts only

a few people in the area of the arrests.    The video recording is

not conclusive of the conditions at the scene, because it is

limited in both time and perspective.    The video recording

depicts roughly one minute of the thirty to forty-five minutes

that the police were in the area attempting to disperse the
                                                                        16


crowd.10   The video recording also largely depicts the incidents

that occurred on the front lawn of a single house.        It does not

show how many people were gathered in the nearby area or on the

street, and it does not depict Frederick's arrest.        The jury

were free to credit the witnesses' testimony about the number of

people in the area at the time of his arrest, and to credit the

testimony of the arresting officers describing the totality of

the scene and their encounters with the crowd.      Cf. Commonwealth

v. Walker, 

, 343–344 (1987) (jury free to

disbelieve defendant's account where nothing compelling in

defendant's evidence caused prosecution's case to deteriorate).

     3.    Angela.   a.   Motions for required finding.    Angela

argues that there was insufficient evidence that the officer who

arrested her was acting in good faith when he decided to arrest

her or that her conduct amounted to resisting arrest.        We

address each element in turn.

     i.    Color of official authority.   Angela first argues that

the police had no basis to arrest her as she was permitted to

record the police's interactions with her friends and inquire

why police were harassing people on the street.      However, at

trial, evidence was presented that Angela was "in all the

officers' faces with her phone."     She was swearing and telling


     10The recording has some background noise, but none of the
conversations between the juveniles and the police can be heard.
                                                                  17


the officers that they were violating people's rights.    She had

her cell phone approximately five inches from Brockton police

Officer Raymond Parrett's face while he was initially

interacting with Frederick.   Parrett told Angela to get the cell

phone out of his face and slapped the phone out of her hand

three times.   Later, she was "[i]nches" away from Brockton

police Lieutenant Frank Vardaro as he was struggling to put

someone in custody with assistance from another officer.     Angela

also was "in [Vardaro's] face with a camera, screaming at [him],

swearing at [him], telling [him he's] violating rights.    And she

refused to disengage and walk away."   Viewed in the light most

favorable to the Commonwealth, a rational jury could conclude

that Angela failed to comply with police orders to stand back

from the officers while they were performing their duties,

including when Vardaro was engaged in a struggle.   This conduct

was sufficient to give officers a good faith basis to believe

probable cause supported Angela's arrest.   See Marcavage, 

 (tumultuous behavior under disorderly

conduct statute includes refusal to comply with police order).

See also Adams, 

 (offense of interference with

police officer requires Commonwealth to prove "the defendant

intended his or her conduct, and intended 'the harmful
                                                                 18


consequences of the conduct -- that is, the interference with,

obstruction, or hindrance'" [citation omitted]).11

     We are unpersuaded by Angela's arguments to the contrary.

To be sure, the ability to film police officers carrying out

their official duties in public is protected by the First

Amendment, and Angela was free to do so.   However, such conduct

may be limited by reasonable time, place, and manner

restrictions, such as requiring Angela to film from a safe

distance away from a chaotic and volatile scene, and in a manner

that caused no interference with the officers' performance of

their duties.   See Glik, 

 (reasonable time, place,

manner restrictions permissible).    See also Adams, 

 ("It is constitutionally permissible to prohibit individuals

from physically obstructing a police officer"); Marcavage, 

 (First Amendment does not permit citizens

to disregard police commands meant to ensure public safety in

potentially dangerous situations).




     11To the extent Angela argues that the Commonwealth could
not prove she "intended the harmful consequences of the
conduct," that does not negate the jury's conclusion that
Parrett had a good faith basis for the arrest in the moment the
decision to arrest was made (quotation and citation omitted).
Adams, 

. See Commonwealth v. Lender, 

 (2006) ("Even were a court to determine later
that the . . . subsequent arrest lacked . . . probable cause,
the absence of [probable cause] does not provide a defense to
the charge of resisting arrest").
                                                                  19


     For largely the same reasons explained in our discussion of

Frederick's claims, we conclude that the video recording

submitted in evidence does not negate the testimony that Angela

was close to the officers' faces and does not cause the

Commonwealth's case to deteriorate.     Notably, the video

recording does not depict the entire encounter; it begins during

the last occasion that Parrett knocked Angela's cell phone out

of her hand.     While the sixty-four second video recording shows

Angela in the general vicinity of the officers, but not mere

inches away from their faces, both Manolo and his friend appear

to be on the ground with officers as the recording ends; thus,

the video recording does not even capture the completion of

their arrests.    The video recording also does not depict what

occurred thereafter, including Angela's arrest and Frederick's

arrest.12   Although the footage does not show Angela close to the

officers during the partial depiction of the arrests of Manolo

and his friend, the jury were free to credit the officers'

testimony that at other times (not depicted in the recording)

she was within inches of their faces.




     12Testimony was presented that Angela and Frederick
recorded Manolo's friend's arrest. Both Angela and Frederick
were approximately three feet away from where officers were
struggling to place that male in handcuffs when an officer "told
them that they needed to back away, . . . to give the officers
space to do what they needed to do." Angela and Fredrick
complied with that order.
                                                                    20


     ii.   Physical force or violence.   Angela next argues that

her conduct did not amount to resisting arrest; instead, she

asserts that "[s]he merely failed to offer her arm to be

handcuffed as quickly as the police officer would have liked."

Contrary to her assertion, the evidence at trial established "an

active, physical refusal to submit to the authority of the

arresting officers, and opposition to their efforts to effect

the arrest."   Maylott, 

.   As Parrett

tried to put Angela's hands behind her back, "she was pulling

away."    Parrett explained, "I tried to grab one arm.   She yanked

away with the camera still going.    I tried to put her hands

behind her back, she wouldn't."    Parrett then grabbed Angela by

the backpack and her hair, and put her on the ground.      Angela

pulled her arms and hands under her body while on the ground

such that she could not be handcuffed.    After she did not comply

with "several orders to pull her hands out" and after a verbal

warning, Parrett administered oleoresin capsicum spray (OC spray

or pepper spray).13   In the light most favorable to the

Commonwealth, the active conduct of pulling away while the

officer was attempting to handcuff Angela coupled with Angela




     13To the extent Angela argues that she already was in
custody and under arrest at the time she put her hands under her
body, we disagree. See Katykhin, 

(arrest complete after defendant fully detained in cruiser, not
when defendant was handcuffed).
                                                                   21


keeping her hands under her body after being put on the ground

fall within the type of "physical force or violence" required to

support an adjudication for resisting arrest under G. L. c. 268,

§ 32B (a) (1).   See 

 (defendant

resisted arrest by stiffening arm, refusing to put hands behind

back, and not turning around to be handcuffed); Katykhin, 

 (defendant resisted arrest by refusing to

get into police cruiser, standing rigid, and "pull[ing] away,

starting a 'tug of war'").     Accordingly, the evidence was

sufficient to support Angela's adjudication for resisting

arrest.

    b.    Jury instructions.   Angela also claims error in the

jury instructions on the offense of resisting arrest.

Specifically, she contends that when the judge explained that a

person is not permitted to resist even an unlawful arrest, the

judge omitted qualifying language that the arrest must be

carried out in good faith.     Because Angela did not object to the

instruction, we review to determine if there was any error and,

if there was, whether it created a substantial risk of a

miscarriage of justice.   See Souza, 492 Mass. at 635.

    We discern no error.     The judge first gave an instruction

on the offense of ABPO and then gave an instruction on the

offense of resisting arrest.    A reading of the transcript

demonstrates that the language Angela now challenges -- "A
                                                                  22


person who is arrested by someone who he knows is a police

officer, is not allowed to resist that arrest with force,

whether the arrest is lawful or not" -- was clearly part of the

instruction on ABPO, and Angela was not charged with that

offense.   The transition from the instruction on ABPO to

resisting arrest was apparent -- the judge prefaced the

transition with a statement that each juvenile was charged with

resisting arrest and then explained what the Commonwealth must

prove beyond a reasonable doubt with respect to that offense.14

As part of the instruction on resisting arrest, the judge

correctly explained, "[T]he Commonwealth must prove that the

police officer was acting, quote, under color of official

authority.   A police officer acts under color of official

authority when in the regular course of assigned duties he or

she makes a judgement in good faith based on the surrounding

facts and circumstances that he or she should make an arrest."

At the conclusion of the instruction on resisting arrest, the

judge explained, "It is not a defense to this charge that a

police officer was attempting to make an arrest which was

unlawful if the officer was acting under color of his official

authority and used only reasonable force in attempting to make


     14 The judge's instruction on the offense of resisting
arrest tracks the language in the Instruction 7.460 of the
Criminal Model Jury Instructions for Use in the District Court
(2009).
                                                                  23


that arrest" (emphasis added).   Viewing the instructions in

their entirety, the judge adequately explained the burden of

proof on the offense of resisting arrest.   See Commonwealth v.

DelValle, 

 (2005) ("We review a judge's charge

to the jury for error by reading the charge as a whole, and not

by scrutinizing each sentence out of context").

    Conclusion.   On the counts of the complaints charging

Manolo, Frederick, and Angela with resisting arrest, the

juveniles' adjudications of delinquency are affirmed.   On the

count of the complaint charging Manolo with assault and battery

on a police officer, the adjudication of delinquency is vacated

and the verdict set aside.

                                   So ordered.