MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, the defendant was convicted of strangulation, assault and battery on a disabled person, and assault and battery on a family or household member. He argues on appeal that there was insufficient evidence to sustain the assault and battery convictions, and that he received ineffective assistance of counsel. Seeing no error, we affirm.
Background. The defendant and the victim, who is mentally disabled, had been in a dating relationship for over a year. On January 26, 2021, while the victim was at the defendants apartment, the defendant became upset with the victim and aggressively placed his hands on the victims neck and applied pressure. The victim was in fear for her life and scratched the defendant to escape. The facilities manager of the property, Jason LaCroix, heard the defendant yell: “Why the hell do you treat me like this? Get the F out of my apartment.” LaCroix also observed the defendant pulling or dragging the victim to the doorway of the apartment. When police arrived on the scene, an officer observed the victim with a red neck and blood on her fingernails.
Discussion. 1. Sufficiency of evidence. At the close of the Commonwealths evidence the defendant moved for a required finding of not guilty on the two assault and battery charges, and that motion was denied. The defendant did not renew his motion for a required finding at the close of all the evidence. When a defendant moves for a required finding of not guilty at the close of the Commonwealths case, we consider the evidence that had been introduced up to that point to determine “whether the Commonwealth presented sufficient evidence of the defendants guilt to submit the case to the [finder of facts].” Commonwealth v. Dustin, 476 Mass. 1003, 1003 (2016), quoting Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The evidence is sufficient if, viewed in the light most favorable to the Commonwealth, a rational trier of fact could find each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
On appeal, the defendant claims the Commonwealth presented insufficient evidence that the defendants use of force was unjustified to support the convictions for assault and battery on a disabled person, and assault and battery on a family or household member. “In order to convict the defendant of assault and battery, the Commonwealth had the burden of proving that the defendant touched the victim without having any right or excuse to do so and that the defendants touching of the victim was intentional.” Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 564 (2006). The defendant contends that he was justified in using force to remove the victim since she was a trespasser.
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Here, the record supports that at the close of the Commonwealths case there was more than sufficient evidence to support a finding beyond a reasonable doubt that the defendants actions were not justified. The Commonwealths case-in-chief did not include any evidence that the victim was a trespasser. The victims testimony was that the defendant became angry at her and attacked her by putting his hands on her throat. Additionally, the facilities manager testified that he saw the defendant trying to drag or pull the victim by her arm toward the door of the apartment. These actions taken in the light most favorable to the Commonwealth were sufficient to allow the finder of fact to determine that the defendant acted without justification.
Even if we were to consider the defendants testimony, that he only grabbed the victim and tried to make her leave his apartment after she refused his request for her to leave, the evidence would still be sufficient to support the convictions. We understand that “[i]t is well settled that a person may, after requesting another to remove from his premises, and his refusal to do so, use force for the purpose of removing him.” Commonwealth v. Clark, 43 Met. 23, 25 (1840). However, an individual may use “no more force than [is] necessary” to do so. Commonwealth v. Dougherty, 107 Mass. 243, 248 (1871). Here, the amount of force that would have been reasonable to have the victim leave the defendants apartment did not extend to the defendants actions of clasping his hands around the victims neck and dragging the victim out of his apartment. “A person may use no more force than reasonably necessary to remove a trespasser.” Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 250 (1999). We discern no error in the denial of the defendants motion for a required finding.
2. Ineffective assistance of counsel. For the first time on appeal, the defendant claims that a number of errors by trial counsel deprived him of effective representation. “[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). “A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge.” Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573 (2007). Here, where no motion was filed, we do not have the benefit of affidavits of trial counsel or findings from the trial judge, and as a result, the claims raised do not appear indisputably on the record. “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Zinser, supra at 810. In any event, we conclude that none of the defendants claims created a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsels omission does not present substantial risk of miscarriage of justice, no basis exists for ineffective assistance of counsel claim).
Judgments affirmed.
FOOTNOTES
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. The defendant relies on his own testimony to support this claim; however, in reviewing a motion for a required finding filed at the close of the Commonwealths evidence “we look only to the evidence presented by the Commonwealth, and disregard any contrary evidence presented by the defendant ․ [and] we resolve all issues of credibility in favor of the Commonwealth.” Commonwealth v. Platt, 440 Mass. 396, 400 (2003).