Cruz v. Commonwealth

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22-P-580 Appeals Court

ROBERTO CRUZ vs. COMMONWEALTH.

No. 22-P-580.

Essex. January 12, 2023. – June 7, 2023.

Present: Meade, Rubin, & Blake, JJ.

Erroneous Conviction. Assault and Battery. Statute,
Construction. Practice, Civil, Summary judgment.
Practice, Criminal, Nolle prosequi.

Civil action commenced in the Superior Court Department on
May 28, 2019.

The case was heard by John T. Lu, J., on a motion for
summary judgment.

Adam Hornstine, Assistant Attorney General, for the
Commonwealth.
Steven J. Rappaport for the plaintiff.

BLAKE, J. The question raised by this appeal is whether

the plaintiff, Roberto Cruz, is eligible to pursue a claim for

compensation under G. L. c. 258D, the erroneous convictions

statute (statute). See G. L. c. 258D, § 1 (B) (ii). Because

the facts adduced at Cruz's criminal trial supported a

conviction of assault and battery, a crime for which Cruz was
 2

indicted but that the Commonwealth voluntarily dismissed before

the case went to the jury, we conclude that Cruz is not eligible

for compensation under the statute. Accordingly, we reverse the

order denying the Commonwealth's motion for summary judgment and

remand the case to the Superior Court, where judgment shall

enter for the Commonwealth.1

Background. 1. Prior proceedings. Cruz was indicted on

three counts of indecent assault and battery on a child,

subsequent offense; one count of child enticement; and one count

of assault and battery. A jury convicted Cruz of two counts of

indecent assault and battery on a child and acquitted him on a

third count of indecent assault and battery and on child

enticement.2 The Commonwealth nol prossed the charge of assault

and battery before the case went to the jury. See Commonwealth

v. Cruz, 93 Mass. App. Ct. 136, 136 n.1 (2018) (Cruz I). This

court reversed the judgments, concluding that the evidence was

insufficient to establish that the touchings were indecent. See

1 We disagree with the Commonwealth's contention that it may
appeal any denial of summary judgment in a wrongful conviction
case. That right is limited to cases such as this one that
challenge a plaintiff's eligibility to sue. See Irwin v.
Commonwealth, 465 Mass. 834, 840-842 (2013).

2 After the verdicts, Cruz pleaded guilty to the subsequent
offense portion of the indictments. Commonwealth v. Cruz, 93
Mass. App. Ct. 136, 136 n.1 (2018). He was sentenced to not
more than fifteen years and one day and not less than fifteen
years.
 3

id. at 139-140. Cruz then filed a complaint in the Superior

Court seeking compensation under the statute. The Commonwealth

moved for summary judgment, arguing that Cruz failed to satisfy

the jurisdictional prerequisite to bring suit under the statute

because his underlying convictions were not reversed on grounds

tending to establish his innocence of all crimes charged in the

indictments. See G. L. c. 258D, § 1 (B) (ii). A Superior Court

judge denied the Commonwealth's motion, finding that the

Commonwealth's failure to present sufficient evidence of an

essential element of the crime was probative of innocence, and

therefore "it cannot be said that vacating the plaintiff's

conviction was not on grounds which tend to establish

innocence."

2. The underlying criminal case. We recite the salient

facts of the criminal case as set forth in our prior opinion.

The indictments stemmed from a series of events that occurred in

2014 at an aviation company. See Cruz I, 93 Mass. App. Ct. at

137. Jane,3 a thirteen year old girl with Asperger's Syndrome,

was an intern at the aviation company and had met Cruz before at

the airport. Id. Cruz, who was almost sixty years old at the

time, waved Jane over to him and told her that he would like to

give her a hug, but they should do that in a different room.

We refer to the child using the pseudonym used in our
3

prior opinion.
 4

Id. Jane then went into a hallway and waited for Cruz for a

couple of minutes before returning to work. Id. Later, Jane

saw Cruz and asked if he still wanted a hug. He hugged her

briefly around the shoulders. Id.

Cruz then asked Jane if she wanted another hug before

leading her into a separate room, with no one else present.

Cruz I, 93 Mass. App. Ct. at 137. This time, he gave her a

second hug, which was tighter, and he kissed her on the neck.

See id. Cruz hugged Jane a third time, lower down on her waist

and hips, and he held her "very tight." Id. Jane was "a little

bit alarmed" by this hug. Finally, Cruz grabbed Jane's shirt at

her right hip and lifted it up slightly before pausing and

putting it back down. See id. He did not expose or touch any

of her skin while lifting the shirt. See id. Cruz also grabbed

Jane's hand. See id.

On direct appeal, Cruz argued that the evidence was

insufficient to support his convictions. We agreed and held

that "the evidence was insufficient to establish that the

defendant's conduct intruded upon a private or intimate area of

the body so as to be considered 'indecent' within the meaning of

the criminal statute." Cruz I, 93 Mass. App. Ct. at 140.

Notwithstanding, we noted that because of the age disparity

between Jane and Cruz and the fact that Cruz led Jane to a

separate room before the alleged indecent touching, the jury
 5

could have found that Cruz knew that his actions were

inappropriate. Id. at 139. Furthermore, we observed that "the

defendant's general conduct toward Jane may well have crossed

acceptable norms of appropriate behavior." Id. at 141.

Importantly, we stated that "the defendant's behavior toward

Jane may have constituted the criminal offense of assault and

battery, in the sense of an intentional, but unconsented to,

touching." Id. at 141 n.8.

Discussion. We review the denial of a motion for summary

judgment de novo. See Irwin v. Commonwealth, 465 Mass. 834, 842

n.18 (2013) (applying de novo standard of review); Guzman v.

Commonwealth, 458 Mass. 354, 362 (2010), citing Mass. R. Civ. P.

56 (c), as amended, 436 Mass. 1404 (2002).

1. Statutory framework. The statute was enacted to allow

individuals who were "erroneously convicted but factually

innocent" to have the opportunity to obtain compensation. See

Irwin, 465 Mass. at 847. To do so, "the Commonwealth has

granted a limited waiver of its sovereign immunity under the

erroneous convictions statute to that class of claimants who

establish that they are eligible for relief." Id. at 842. A

claimant must first prove that he is eligible to pursue

compensation and at trial must then "prove, by clear and

convincing evidence, . . . that he did not commit the charged
 6

offense." Id. at 839. This case pertains only to the

eligibility aspect of the statute.

Section 1 (B) and (C) (vi) of the statute "perform a

screening function" that limits the class of claimants that is

eligible to bring suit. Guzman, 458 Mass. at 360. A claimant

is eligible to bring a claim if he has "been granted judicial

relief by a state court of competent jurisdiction, on grounds

which tend to establish the innocence of the individual as set

forth in clause (vi) of subsection (C)." G. L. c. 258D,

§ 1 (B) (ii). In turn, § 1 (C) (vi) requires the plaintiff to

show that "he did not commit the crimes or crime charged in the

indictment or complaint or any other felony arising out of or

reasonably connected to the facts supporting the indictment or

complaint, or any lesser included felony" (emphasis added).

G. L. c. 258D, § 1 (C) (vi).

Previous appellate cases that have analyzed the eligibility

requirement of G. L. c. 258D have not addressed the

incorporation of § 1 (C) (vi) into § 1 (B) (ii). See, e.g.,

Renaud v. Commonwealth, 471 Mass. 315, 318 (2015); Irwin, 465

Mass. at 839; Guzman, 458 Mass. at 356. At oral argument, both

parties agreed that there were no appellate cases on the precise

question presented here, and we have found none. Cruz argues

that to meet the eligibility requirement under § 1 (C) (vi), he

need show only that he was granted judicial relief on grounds
 7

that tend to establish innocence of the crime for which he was

tried. In contrast, because Cruz was indicted for assault and

battery, the Commonwealth argues that § 1 (C) (vi) makes him

ineligible to sue. This is because reversal of his convictions

was not on grounds tending to establish innocence on that

charge.

We review questions of statutory interpretation de novo.

See Commonwealth v. Perella, 464 Mass. 274, 276 (2013).

"A fundamental principle of statutory interpretation is
that a statute must be interpreted according to the intent
of the Legislature ascertained from all its words construed
by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment,
the mischief or imperfection to be remedied and the main
object to be accomplished . . ." (quotation and citation
omitted).

Mahan v. Boston Retirement Bd., 490 Mass. 604, 613 (2022).

To support his claim, Cruz relies on Renaud, in which the

court stated, "Although [G. L. c. 258D,] § 1 (B) (ii)[,]

references § 1 (C) (vi), the eligibility requirement is separate

and distinct from the merits of the claim of relief that a

claimant must establish at trial, namely that he or she did not

commit the charged offense" (quotation and citation omitted).

Renaud, 471 Mass. at 319. He argues that, as in Renaud, the

Commonwealth conflated the eligibility requirement with the

merits of the claim itself. While we agree that the eligibility

requirement is distinct from the merits of the claim, Cruz's
 8

reliance on this isolated sentence is misplaced. In Renaud, the

court responded to the Commonwealth's contention that

eligibility under the statute was limited to those individuals

who are "in fact, innocent." Id. Here, the Commonwealth does

not argue, nor do we conclude, that the incorporation of

§ 1 (C) (vi) into the eligibility requirement means that Cruz

must prove his innocence by clear and convincing evidence to

meet the eligibility requirements of the statute.

"In interpreting the meaning of a statute, we look first to

the plain statutory language." Worcester v. College Hill

Props., LLC, 465 Mass. 134, 138 (2013). Here, the Legislature

inserted G. L. c. 258D, § 1 (C) (vi), into the statute in part

to define "innocence" under § 1 (B) (ii). In addition,

§ 1 (B) (ii) requires proof of "grounds which tend to establish

. . . innocence." To answer the critical question of innocence

of what, the Legislature expressly incorporated by reference the

list of crimes in § 1 (C) (vi). Therefore, Cruz must show that

he was granted judicial relief on grounds that tend to establish

that he is innocent of the crime, of the crimes charged in the

indictments, or of any other felony arising out of the facts

underlying the indictment. See G. L. c. 258D, § 1 (B) (ii);

Santana v. Commonwealth, 90 Mass. App. Ct. 372, 377-378 (2016)

(Trainor, J., concurring).
 9

It therefore follows that the reversal of the judgments on

the charges of indecent assault and battery does not end our

analysis, as this fact is only one of three eligibility

considerations. We therefore turn to the question whether Cruz

was granted judicial relief on grounds that tend to establish

that he is innocent of the "crimes . . . charged in the

indictment," here assault and battery. See G. L. c. 258D, § 1

(B) (ii).

2. Grounds tending to establish innocence. "Where the

grounds for relief are not in dispute, the question whether they

'tend to establish' that the plaintiff did not commit the crime

is primarily a question of law." Guzman, 458 Mass. at 365.

There is no bright-line rule that defines what constitutes

grounds of judicial relief that tend to establish innocence.

Indeed, we have rejected a one size fits all approach, see

Santana v. Commonwealth, 90 Mass. App. Ct. at 375, in favor of

"a case-specific, fact-based approach," Santana v. Commonwealth,

88 Mass. App. Ct. 553, 555 (2015). Cruz's reliance on Santana

and Renaud as standing for the proposition that a reversal based

on insufficient evidence constitutes grounds tending to

establish innocence is misplaced. See Renaud, 471 Mass. at 316-

317; Santana, 88 Mass. App. Ct. at 555. In both cases, the

convictions were reversed due to insufficient evidence that the

plaintiff was the individual who had committed the crime. See
 10

Renaud, supra (conviction reversed due to insufficient evidence

of identity); Santana, 88 Mass. App. Ct. at 555 (conviction

reversed due to insufficient evidence of possession where

defendant was passenger in vehicle). Notwithstanding, both

cases held that that "insufficient evidence does not

'necessarily equate to actual innocence.'" See Santana, 88

Mass. App. Ct. at 554, quoting Renaud, supra at 319.

In determining Cruz's eligibility, we must examine the four

corners of the underlying judicial decision. See Riley v.

Commonwealth, 82 Mass. App. Ct. 209, 214 (2012) (court required

"to look not only at the legal rationale for judicial relief but

also at the 'facts and circumstances' on which the relief

rests"). Cruz argues that our decision reversing his

convictions "left no theory upon which . . . [he] could be found

guilty of the crime for which he was tried." However, as the

Commonwealth properly claims, because our decision reversing

Cruz's convictions did not constitute grounds tending to

establish his innocence on the assault and battery charge, Cruz

is ineligible to bring an action under the statute. As set

forth in that opinion, we concluded that Cruz's behavior,

although not indecent, may constitute assault and battery as it

was an intentional, unconsented touching. Cruz I, 93 Mass. App.

Ct. at 141 & n.8. And, as the concurrence there noted, "[h]ad

the Commonwealth wanted to, it plainly could have prosecuted the
 11

unwanted hug and the slight lifting of the bottom of Jane's

shirt as simple assault and batteries." Id. at 144-145 (Milkey,

J., concurring). This is based on the fact that Cruz hugged

Jane twice, the second of those hugs being "very tight" and with

his hands "lower down, on her waist and hips." Id. at 137.

Cruz also kissed Jane's neck and grabbed her hand while lifting

up her shirt slightly.4 Id. Utilizing a "fact-based approach,"

Santana, 88 Mass. App. Ct. at 555, the underlying conduct does

not tend to establish that Cruz is innocent of assault and

battery. See Santana, 90 Mass. App. Ct. at 376 ("while it is

true that principles of double jeopardy preclude any further

prosecution of the plaintiff on the earlier indictment, . . .

his conviction was not reversed for reasons that tend to

establish his innocence").

4 Cruz contends that the factual issue of consent was never
presented to the jury at his criminal trial. While the
Commonwealth must prove nonconsent for the charge of assault and
battery based on an offensive touching, see Commonwealth v.
Farrell, 31 Mass. App. Ct. 267, 268 (1991), Cruz ignores a
necessary premise of our prior decision. From this, and
particularly with the phrase "unwanted hug," it is reasonable to
conclude that the jury did hear evidence of Jane's nonconsent.
Cf. Commonwealth v. Shore, 65 Mass. App. Ct. 430, 432-433 (2006)
(lack of consent analyzed on totality of circumstances including
disparity in age, experience, sophistication, and authority).
Ultimately though, this does not impact our analysis because the
Commonwealth nol prossed the assault and battery charge before
the case went to the jury.
 12

Although we reversed Cruz's convictions of indecent assault

and battery, our decision expressly concluded that under the

facts and circumstances of that case, Cruz could have been

prosecuted on the indictment charging assault and battery. See

Riley, 82 Mass. App. Ct. at 214. That the Commonwealth chose to

file a nolle prosequi on the charge of assault and battery does

not alter our result. There may be a myriad of reasons that the

Commonwealth chose to do so. Indeed, prosecutors have broad

leeway to voluntarily dismiss a charge as a matter of trial

strategy. See Commonwealth v. Pyles, 423 Mass. 717, 719 (1996).

Nothing in the record before us suggests that the voluntary

dismissal was suggestive of actual innocence within the meaning

of G. L. c. 258D, § 1 (B) (ii). Nor is it material to the

eligibility threshold. Put another way, where we set aside

Cruz's convictions but said nothing tending to establish his

innocence of another crime for which he was indicted, assault

and battery, no viable claim under G. L. c. 258D can arise.

Indeed, our underlying decision in the criminal case held only

that Cruz's conduct was not indecent as defined by the case law.

Because his overturned convictions are not probative of his

actual innocence under § 1 (B) (ii), Cruz is not eligible to sue

the Commonwealth under G. L. c. 258D. Cf. Santana, 90 Mass.

App. Ct. at 375-376 (where theory of guilt jury relied upon was
 13

unclear, reversal of conviction due to erroneous instruction did

not tend to establish defendant's innocence).

By contrast, our dissenting colleague simply concludes that

we have prejudged the merits, he but fails to address the

precise question before us. The dissent takes an overly broad

view of the statute and seemingly concludes that reversal of the

plaintiff's convictions meets the gatekeeper threshold for

eligibility regardless of the plaintiff's ancillary untried

conduct. The flaw in the dissent is that it ignores the fact

that the statute includes untried crimes set forth in the

indictments and uncharged felonies that can be discerned from

the facts and circumstances of the case for purposes of

eligibility to sue. The dissent's theory fails to honor the

Legislature's comprehensive approach to evaluating eligibility

for relief as well as its overarching purpose of effectuating

only a limited waiver of the Commonwealth's sovereign immunity.5

See Irwin, 465 Mass. at 842.

Conclusion. The order denying the Commonwealth's motion

for summary judgment is reversed. The case is remanded to the

Superior Court where judgment shall enter for the Commonwealth.

So ordered.

5 We take exception to the dissent's description of the
majority as reflecting the "disgust" with which we view the
plaintiff's behavior. See post at . Such a categorization
has no place in the analysis of the claims presented on appeal.
 RUBIN, J. (dissenting). Today, the court majority guts the

erroneous convictions statute (statute), G. L. c. 258D, an

important statute that provides a damages remedy to innocent

people who have been exonerated after wrongful conviction and

incarceration. The majority turns the relatively low bar set by

the Legislature for determining which wrongfully incarcerated

plaintiffs can bring a claim under the statute into an

insurmountable wall barring a large segment of those innocent

individuals who have wrongfully been imprisoned from seeking the

redress the Legislature provided. The majority's approach makes

it impossible for those exonerated individuals to sue if either,

as happens in so many cases, including this one, the

Commonwealth has dismissed any of the charges against them, or a

judge can imagine some hypothetical, uncharged crime the

individual's "behavior . . . may constitute," ante at , a

crime that was never charged, perhaps never even thought of, by

law enforcement and prosecutors. The court says that unless the

judicial decision exonerating the wrongfully imprisoned

individual opines about his or her innocence of each such charge

and crime, this exoneree no longer has the remedy the

Legislature crafted both to deter wrongful imprisonment and to

compensate for it. But because courts lack jurisdiction to

opine on charges or crimes not before them, there can never be

such a judicial decision. Thus, in one fell swoop, the court
 2

majority eliminates this large class of exonerees from the

protection of the statute, a result the Legislature obviously

did not intend.

The court majority, like the majority and the concurrence

in Commonwealth v. Cruz, 93 Mass. App. Ct. 136 (2018) (Cruz I),

in which we held that the plaintiff in the instant case, Roberto

Cruz, was factually innocent of all the charges of which he was

convicted, emphasizes the disgust with which they view the

plaintiff's behavior. Indeed, the first thing the majority

tells us after initially describing our holding him in Cruz I

innocent of all the charges of which he was convicted, is

"[n]otwithstanding, we noted that because of the age disparity

between Jane and Cruz and the fact that Cruz led Jane to a

separate room before the alleged indecent touching, the jury

could have found that Cruz knew that his actions were

inappropriate. [Id.] at 139. Furthermore, we observed that

'the defendant's general conduct toward Jane may well have

crossed acceptable norms of appropriate behavior.' Id. at 141."

Ante at .

But the court's ruling today applies to all unlawfully

imprisoned individuals who have been exonerated by our courts,

not just those individuals a court may view with distaste.

Unlawfully incarcerated exonerees are the very people for whose

benefit the Legislature enacted the statute, in order to deter
 3

wrongful convictions and incarceration, and to compensate those

who have been imprisoned wrongfully.

The decision today thus will do grave damage to the

Commonwealth's attempts to provide justice for exonerated people

who have been imprisoned illegally. Because it ignores both the

plain language of the statute and the precedents of the Supreme

Judicial Court, I respectfully dissent.

Discussion. The plaintiff, Roberto Cruz, was held in jail

for over two and one-half years after being convicted wrongfully

of crimes he did not commit, two counts of indecent assault and

battery on a child under fourteen. See G. L. c. 265, § 13B.

That he was factually innocent was the flat, explicit,

unequivocal, and final holding of this court in Cruz I, 93 Mass.

App. Ct. 136.

"In 2004, in the wake of a growing number of exonerations

both in Massachusetts and across the nation, the Legislature

enacted c. 258D, which created a remedy, in the form of a new

cause of action (and a corresponding waiver of sovereign

immunity) that could be brought against the Commonwealth by

persons who had been wrongfully convicted and imprisoned. . . .

The statute provides a variety of remedies for a person so

harmed, including the recovery of up to $500,000 in damages from

the Commonwealth. G. L. c. 258D, § 5." Guzman v. Commonwealth,

458 Mass. 354, 355-356 (2010) (Cordy, J.).
 4

Cruz filed an action under the statute, which, as

described, provides a damages remedy to those who have been

wrongfully convicted and incarcerated if they can "establish, by

clear and convincing evidence" that they "did not commit the

crimes or crime charged in the indictment or complaint or any

other felony arising out of or reasonably connected to the facts

supporting the indictment or complaint, or any lesser included

felony." G. L. c. 258D, § 1 (C) (vi). Cruz -- again,

wrongfully convicted and incarcerated for over two and one-half

years -- is entitled to his day in court in order to prove his

claim that he is factually innocent.

The Commonwealth, however, apparently unable to accept the

Legislature's action in creating this remedy, argues, not for

the first time, that the threshold question of eligibility even

to bring suit under G. L. c. 258D, § 1 (B) (ii) (eligibility

provision) -- a provision that merely limits the class of

potential litigants to "those who have been granted judicial

relief by a state court of competent jurisdiction, on grounds

which tend to establish the innocence of the individual"

(emphasis added) -- actually requires the court to look at the

entire case in advance of trial and determine the merits,

without any full record of what happened. It argues that the

plaintiff must show that the decision reversing or vacating the

plaintiff's conviction means he would win on the merits of his
 5

claim under the statute and could prove actual innocence not

only of all the crimes for which he was tried, but of any

charged-but-dismissed crime or uncharged felony that might have

arisen out of the facts supporting the complaint, even though

neither the court vindicating the plaintiff, nor any other, has

ever even had authority to opine on the matter.

The Supreme Judicial Court, however, has rejected this

argument, explicitly, in Guzman:

"While we agree that the eligibility requirements of
c. 258D were intended to limit the class of persons
entitled to pursue relief, and in this sense perform a
screening function, and that the relief granted must be on
grounds tending to do more than merely assist the
defendant's chances of acquittal, we do not discern a
legislative intent that the determination of eligibility be
tantamount to a testing of the merits of a claimant's case.
If the Legislature intended it to be so, it could have
structured the statute to specifically reflect this
intent."

Guzman, 458 Mass. at 360-361. "[T]he language of the statute

did not 'import[] into the eligibility provision a preliminary

assessment' of the ultimate merits of the claim" (citation

omitted). Id. at 365. Indeed, in Guzman the Supreme Judicial

Court held that the eligibility hurdle was met in a case weaker

than this, where the judicial basis for reversing the

plaintiff's conviction did not even address actual innocence,

but only the failure to call witnesses who might have rebutted a

detective's identification testimony. Id.
 6

In the case before us, this court has already held that the

plaintiff was factually innocent of the only two charges to go

to the jury of which he was convicted. Obviously, this "tends

to establish" that Cruz "did not commit the crimes or crime

charged in the indictment or complaint or any other felony

arising out of or reasonably connected to facts supporting the

indictment or complaint, or any lesser included felony." G. L.

c. 258D, § 1 (B) (ii), (C) (vi). See Guzman, 458 Mass. at 362

("'tend[s] to establish' . . . is properly understood to mean

judicial relief on 'grounds resting upon facts and circumstances

probative of the proposition that the claimant did not commit

the crime'" [citations omitted]). Our prior decision may not

establish innocence of all felonies that might be found to arise

out of the facts supporting the indictments. Indeed, because

the court lacked jurisdiction to opine on that question, the

decision could not establish that. But in concluding that the

plaintiff did not commit those crimes charged in the indictments

that the Commonwealth sent to the jury, and of which he was

convicted, our prior decision certainly "tends" to establish it.

That should be the end of the case.

Unfortunately, the court majority accepts the

Commonwealth's invitation. The majority drains of most meaning

the "tend to establish" language in the statute -- the meaning

of which is in fact the "precise question before us," ante at
 7

. Indeed, it says, clearly mistakenly, Cruz's "overturned

convictions are not probative of his actual innocence." Ante

at .

And the court majority goes further. Examining the

relationship of our decision in Cruz I with another charged

offense (assault and battery) of which Cruz was not convicted --

indeed, that was not even thought by the Commonwealth worthy of

submission to the jury and that was so weak it was nol prossed

by the Commonwealth after the evidence was presented to the jury

-- the majority concludes that "because our decision reversing

Cruz's convictions did not constitute grounds tending to

establish his innocence on the assault and battery charge, he is

ineligible to bring an action under the statute." Ante at .6

This is precisely the preliminary assessment of the merits that

the Supreme Judicial Court has held is inappropriate.

Of course our decision in Cruz I did not tend to establish

the plaintiff's innocence of the assault and battery charge. He

6Nolle prosequi is a Latin phrase that means "not to wish
to prosecute." In this Commonwealth, a nolle prosequi, the verb
form of which is "nol pros," Del Gallo v. District Attorney for
the Suffolk Dist., 488 Mass. 1008, 1008 (2021), and of which the
past tense of the verb form is "nol prossed," Pina v.
Commonwealth, 491 Mass. 1020, 1020 (2023), is entered by the
prosecutor in order to terminate the prosecution of one or more
charges. "After jeopardy attaches, a nolle prosequi entered
without the consent of the defendant shall have the effect of an
acquittal of the charges contained in the nolle prosequi."
Mass. R. Crim P. 16 (b), 378 Mass. 885 (1979).
 8

was not convicted of it, so we properly did not address it.

Indeed, the Commonwealth, despite presenting evidence on it

decided not to send it to the jury. The Commonwealth, rather,

asked the judge to enter an order that is in essence an

acquittal of the charge, see Mass. R. Crim P. 16 (b), 378 Mass.

885 (1979), and which, under principles of double jeopardy,

prohibits the plaintiff from now being tried on the charge.

The reasons for the nolle prosequi do not matter, but the

majority's statement that voluntary dismissal by the

Commonwealth is not even "suggestive of actual innocence" does

not withstand scrutiny. Ante at . Unlikelihood of conviction

is an obvious reason a prosecutor would nol pros a

nonduplicative charge after having put on all the Commonwealth's

evidence with respect to the charge. In any event, for the

reasons previously indicated, our decision in Cruz I does

"tend[] to establish" Cruz's factual innocence of any crimes

that may have arisen out of the facts supporting the indictments

-– by establishing his innocence of all the charges the

Commonwealth saw fit to send to the jury and of which he was

convicted (all wrongfully).

The approach taken instead by the court majority

unfortunately amounts to the examination of the ultimate merits,

and usurpation of the jury function, that the Supreme Judicial

Court has repeatedly warned us the eligibility provision does
 9

not allow. And it leaves a hollowed-out statute, which is not

what either the Legislature, or the Supreme Judicial Court in

construing the statute, intended.

Our job is not to scan the record of the criminal trial --

incomplete in any event with respect to dismissed or uncharged

crimes -- to determine whether we can come up with some charged

crime or uncharged felony never even sent to the jury arising

out of the facts underlying reversed convictions, crimes by

definition not involved in the judicial decision finding all

actual convictions unsupported by sufficient evidence. We are

supposed to be asking only the threshold eligibility question:

Does Cruz I, finding the plaintiff factually innocent of the

actual charges on which he was convicted, "tend to establish"

his factual innocence? It obviously does.

Nor, obviously, does the dictum in the footnote in Cruz I

saying Cruz's behavior "may" have amounted to assault and

battery amount to an expression of an opinion on the merits of

the assault and battery charge that was not before us. That

dictum says only:

"While the defendant's behavior toward Jane may have
constituted the criminal offense of assault and battery, in
the sense of an intentional, but unconsented to, touching,
simple assault and battery is not a lesser included offense
of indecent assault and battery on a child, because lack of
consent is not an element of the latter charge."
 10

Cruz I, 93 Mass. App. Ct. at 141 n.8. This states only that

even if the conduct amounted to assault and battery, that is not

a lesser included offense of the unsupported offense of

conviction.

Nonetheless, in reaching its decision, the majority now

holds, based on a concurrence representing the view of one lone

justice of this court, that, on the merits, Cruz was guilty of

assault and battery: "[A]s the concurrence there noted, '[h]ad

the Commonwealth wanted to, it plainly could have prosecuted the

unwanted hug and the slight lifting of the bottom of Jane's

shirt as simple assault and batteries.'" Ante at , quoting

Cruz I, 93 Mass. App. Ct. at 144-145 (Milkey, J., concurring).

Indeed, the majority somehow transmogrifies that conclusion of

one justice, writing only for himself, which has no precedential

weight, and which is not even the majority's dictum, into a

conclusion that "our decision expressly concluded that under the

facts and circumstances of that case, Cruz could have been

prosecuted on the indictment charging assault and battery," ante

at , which the decision in Cruz I clearly did not.

We are not supposed to be asking whether we think Cruz

committed a crime that was not sent to the jury and on which, in

our earlier case, we did not (and could not properly) opine, in

this case assault and battery. The jury in his criminal trial

did not decide the question because the Commonwealth concluded
 11

the claim was not worthy of presentation to it and nol prossed

the charge before it went to the jury. In this action, a second

jury, and not appellate judges who have heard no evidence, are,

in light of Cruz I, supposed to determine whether the plaintiff

can establish his factual innocence not only of the crimes of

which he was convicted, which has already been decided, but of

that charge, as well as any other charge that might have arisen

out of the conduct underlying his indictments, by clear and

convincing evidence.

Cruz may lose if he is allowed to attempt that. I have no

idea and neither do my colleagues. But the court today deprives

him of the opportunity to do so, and the jury of the opportunity

to decide.

Conclusion. Because this denies Cruz his day in court in

violation of the statute and the decisions of the Supreme

Judicial Court that protect those, like him, who are wrongfully

convicted and incarcerated, and because this construction of the

eligibility clause will improperly narrow for the future the

avenue of relief the Legislature has decided to provide for the

wrongfully convicted and incarcerated, I respectfully dissent.