MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant was found guilty of assault and battery and sentenced to eighteen months in the house of correction. On appeal, the defendant challenges the judges instructions to the jury and certain testimony from an officer who responded to the scene. We affirm.
Background. We summarize the facts as the jury could have found them, reserving certain points for later discussion. On May 3, 2015, security officer Craig Gordon was working at Loring Towers in Salem. At approximately 9 p.m., while in his car with the windows down, Gordon heard a woman screaming and drove toward the sound. In a parking lot, Gordon found the victim and another individual, later identified as the defendant, “in a physical confrontation.” At the time of the incident and at trial the victim and the defendant were in a relationship.
While in his car, Gordon heard the defendant yelling, saw him pick the victim up by her shirt, slam her to the parking lots surface, and shake her while she was on the ground; during this time the victim asked the defendant to stop. Gordon yelled for the defendant to stop and approached, but was stopped, grabbed by the collar, and directed back to his car by the defendant and another individual (who remained unidentified at trial) who told Gordon to leave because it was “none of [his] business.”
Once back to his vehicle, Gordon called the Salem police department. The defendant and the unidentified individual then got into a silver Honda sport utility vehicle (SUV) and left the parking lot; Gordon followed in his vehicle but stopped when the defendant and the individual got out of the SUV and began to approach Gordons car. Before the SUV left his view, Gordon saw the blue lights of a Salem police cruiser.
Meanwhile, Salem police Officer Ryan Davis was dispatched to a report of a fight in the parking lot of Loring Towers; he had been told that a silver Honda SUV was associated with the call. Davis spotted a silver SUV leaving the parking lot of 1000 Loring Avenue as he approached, and based on the dispatch report, activated his blue lights and sirens. The SUV continued to accelerate, and Davis followed at a high rate of speed until the SUV struck a parked car and came to rest against a utility pole. The defendant, who was driving the SUV, was pulled from the vehicle.
At trial, the victim denied that the defendant physically assaulted her. She testified that at the relevant time, she was “having a conversation with” the defendant, that the defendant was “upset” over the death of his cousin, and that he consequently “raised his voice.” She denied, however, that she yelled for help.
Discussion. 1. Jury instructions. “Because the defendant did not object at trial to the judges jury instructions, we determine if any of the alleged errors ‘created a substantial risk of a miscarriage of justice.’ ” Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014), quoting Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999). We view the instructions “as a whole, looking for the interpretation a reasonable juror would place on the judges words” (citation omitted). Commonwealth v. Allen, 474 Mass. 162, 168 (2016).
To conclude his instructions to the jury, the judge stated:
“[Y]ou may wonder why were here if the complainant and alleged victim is saying nothing happened, and quite simply, for a civil case where its one party against another, then the party whos ․ [in] control over that [is the party bringing the case], [but] in a criminal case [it] is the Commonwealth of Massachusetts that brings the case. So just to give you some ․ context as to why were here on this case given that set of circumstances.”
The defendant argues that by inserting this explanation into the jury charge, the judge impermissibly implied that the Commonwealth credited Gordons version of events and disbelieved the victims version of events, and in doing so, suggested that the jurors should do the same. The defendant argues that the addition was error, and that it was particularly impactful where the credibility of Gordon and the victim were central to the case.
We need not reach the question of the propriety of the judges explanation because we conclude that it did not create any substantial risk of a miscarriage of justice.
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First, the explanation was, as the judge informed the jury, simply “context” for the case. The judges instructions prior to the explanation were complete and correct, and the judge followed his explanation with a clear reiteration of (1) the elements of the crime of assault and battery, and (2) the fact that the Commonwealth bore the burden of proving each of the elements of the crime beyond a reasonable doubt. Second, we note that the judges explanation only expanded on a point raised by the defendants attorney in closing when she argued that the Commonwealth bore the burden of proof, because “its the Commonwealth who brings these cases.” The judges instructions did little more than state the same point. Finally, we consider that the instruction explicitly highlighted for the jury the victims testimony that she was not assaulted by the defendant -- evidence that, if credited, could only benefit the defendant.
2. Daviss testimony. The defendant argues that Daviss testimony that he “was dispatched to a call of a fight in the parking lot of 1000 Loring Ave” and that “[t]he initial call came in as just a fight” was improperly admitted hearsay evidence that corroborated Gordons testimony.
We disagree with the defendant that Daviss testimony was inadmissible as hearsay. “The hearsay rule prohibits the admission only of out-of-court assertions offered to prove the truth of the matter asserted.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 550 (2011), citing Mass. G. Evid., § 801(c) (2011). “[I]f a statement is not offered to prove the facts asserted in it but is offered only to show that the statement ‘was made,’ it is not hearsay and is admissible.” Id., citing Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991). Daviss testimony was not offered as proof of the occurrence of a fight, but to explain both why he went to the Loring Avenue parking lot and why, when he saw the SUV leaving that area, he pursued it. See Commonwealth v. Cruzado, 480 Mass. 275, 280 (2018). Thus, the statement was properly admitted.
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Judgment affirmed.
FOOTNOTES
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. We agree with the defendant that it is improper to create the appearance “of official belief in the complainant” by virtue of the Commonwealth having “brought its resources to bear on [the case].” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). We do not, however, agree that the judges language was likely to have had such effect.
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. In any event the statements were admissible under Commonwealth v. Rosario, 430 Mass. 505, 509-510 (1999).