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18-P-1394                                              Appeals Court

               COMMONWEALTH   vs.    EDEMAR J. BENEDITO.


                           No. 18-P-1394.

            Middlesex.     May 14, 2019. - June 27, 2019.

              Present:   Blake, Henry, & McDonough, JJ.


Indecent Assault and Battery.       Practice, Criminal, Required
     finding.


     Complaint received and sworn to in the Lowell Division of
the District Court Department on August 3, 2017.

    The case was tried before J. Elizabeth Cremens, J.


     Eric W. Ruben for the defendant.
     Timothy M. Federico, Assistant District Attorney, for the
Commonwealth.


    HENRY, J.    While the defendant was naked, he kissed his

girlfriend's sister on the mouth, without insertion or attempted

insertion of the tongue, while she was sleeping and without her

consent.    The question is whether such circumstances present

sufficient evidence for a conviction of indecent assault and

battery on a person over the age of fourteen, in violation
                                                                         2


of G. L. c. 265, § 13H.    We conclude that they do and affirm the

judgment.

     Background.    Viewed in the "light most favorable to the

Commonwealth," the jury could have found as follows.     See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).       In

November of 2016, the then twenty-three year old victim went to

her sister's (Maricel)1 apartment around 11:30 P.M.    Upon

realizing that Maricel and her boyfriend, the forty-two year old

defendant,2 were asleep in Maricel's bed, the victim fell asleep

fully clothed on the living room couch.

     At some point in the night, the victim awoke to the

defendant kissing her on the lips.    The defendant was naked,

kneeling next to the couch, and hovering over the victim.      The

victim stood up and shouted, "What are you doing?     Why are you

doing this?"    The defendant replied, "I couldn't help myself.      I

didn't know what I was doing."

     The victim immediately went to Maricel's bedroom for help.

Maricel, who was woken up by the victim's screaming, went into

the living room and saw the defendant unclothed, who by that

time had a towel wrapped around his waist.3   The defendant then


     1   A pseudonym.

     2 There was no testimony as to the defendant's age at trial.
However, the jury could observe his appearance and the criminal
complaint states his date of birth and the date of the offense.
                                                                      3


apologized.   The victim did not feel comfortable remaining in

the apartment and left within minutes of informing Maricel about

the incident.    The victim and Maricel reported the incident to

the police.     The defendant was convicted of indecent assault and

battery on a person over the age of fourteen.

    Discussion.     The defendant contends that his motion for a

required finding of not guilty should have been allowed because

the Commonwealth failed to offer sufficient evidence to prove

the element of indecency.     "To prove indecent assault and

battery on a person age fourteen or older, the Commonwealth is

required to establish that the defendant committed 'an

intentional, unprivileged, and indecent touching of the

victim.'"   Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018),

quoting Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010),

overruled on other grounds by Commonwealth v. LaBrie, 473 Mass.

754 (2016).   Conduct is "indecent" when it is "fundamentally

offensive to contemporary moral values . . . which the common




    3  The dimensions of the towel were unspecified other than
the statement, "[I]t wasn't that big of a towel." The defendant
contends that he was wearing a towel during the kiss. The
victim, however, testified that the defendant was not clothed
during the kiss, and said that the defendant had "a towel around
him" after she and her sister returned, but that "[h]e didn't
have anything [on] before." Maricel also testified that the
defendant was naked while they were in bed before the incident.
Either way, the defendant was not clothed. Moreover, viewing
the evidence in the light most favorable to the Commonwealth,
the defendant was naked.
                                                                     4


sense of society would regard as immodest, immoral, and

improper."     Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184

(1991).     The entire context of the offensive touching must be

examined.     See Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 139

(2018), citing Commonwealth v. Castillo, 55 Mass. App. Ct. 563,

565 (2002).     "The test for indecency is objective, turning on

the nature of the conduct rather than the defendant's intent."

Cruz, supra.

    The defendant argues that our case law has given examples

of facts and circumstances giving rise to an indecent assault

not present here, including:     forced insertion of a tongue

during a kiss; considerable disparity in age (where the

defendant was an adult and the victim was a minor), experience

or sophistication between the defendant and alleged victim;

disparity in authority (where the defendant was in a familial

authority over the victim); the defendant's hands on a victim's

chest or "private area"; the victim telling the defendant to

stop; forced contact; and sexually aggressive behavior.     See

Castillo, 55 Mass. App. Ct. at 566-567.     This list, however, is

illustrative, not exhaustive.

    Our case law recognizes the mouth is an "intimate part of

the body," as "the vast majority of people are very

discriminating in who they allow to touch . . . this bodily

orifice."    Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625
                                                                     5


(2004), quoting People v. Rivera, 138 Misc. 2d 570, 571 (N.Y.

Sup. Ct. 1988).     See Commonwealth v. Colon, 93 Mass. App. Ct.

560, 562 (2018).     Under certain circumstances, touching of the

mouth, even without insertion of the tongue, may be considered

an indecent act.4    See Commonwealth v. Vazquez, 65 Mass. App. Ct.

305, 307 (2005).     We conclude that such circumstances exist

here.

     The victim awoke to the defendant hovering over her, naked,

and kissing her on the mouth.    The victim and the defendant were

not in a dating relationship; the defendant was in a

relationship with the victim's older sister.    See Colon, 93

Mass. App. Ct. at 563 (whether there is existing relationship

between victim and defendant should be considered when assessing

indecent conduct).     The defendant acted surreptitiously, as he

acted in the night while the victim and the other occupants of

the apartment were asleep, and the victim was unable to consent.

See Cruz, 93 Mass. App. Ct. at 139 (defendant led victim to

private area), citing Castillo, 55 Mass. App. Ct. at 567

(defendant alone in basement with victim); Commonwealth v.

Armstrong, 73 Mass. App. Ct. 245, 254 (2008) (sleep renders a


     4 We need not get tangled in whether a fully clothed prince
may kiss Sleeping Beauty or revive Snow White. At least while
one is naked, when one is not in a preexisting intimate
relationship, kissing a sleeping woman, a spellbound princess,
or otherwise, is not consistent with our "contemporary moral
values." Mosby, 30 Mass. App. Ct. at 184.
                                                                      6


victim incapable of consent).    As soon as the victim awoke, she

unmistakably demonstrated her lack of consent by standing up,

shouting at the defendant, and immediately seeking help from her

sister.   See Castillo, supra.

    In addition, when the victim questioned the defendant's

actions, the defendant responded, "I couldn't help myself.        I

didn't know what I was doing."    See generally Rosa, 62 Mass.

App. Ct. at 627 (defendant's "sexually suggestive remarks"

considered in indecency analysis); Castillo, 55 Mass. App. Ct.

at 567 (defendant's "provocative remarks" considered in

indecency analysis).   See also Commonwealth v. Roe, 90 Mass.

App. Ct. 801, 809 (2016) (defendant's "inappropriate remarks"

considered in indecency analysis).    Cf. Cruz, 93 Mass. App. Ct.

at 140 ("No suggestive comments [or] propositions").

    The defendant's reliance on Cruz is not persuasive.      In

Cruz, a nearly sixty year old man hugged the thirteen year old

victim multiple times, initially with permission and then a

third time without, and kissed her on the neck once.    The victim

described the latter hug as "tight, like a hug that her parents

would give her"; thus, "tending to suggest that . . . the

contact itself was not sexual."    Id. at 139-140.   Moreover, the

hug was not accompanied by suggestive comments or propositions.

After one of the hugs, the defendant began to lift the victim's

shirt, but neither exposed nor touched the victim's skin.     Id.
                                                                   7


at 140.   This court held that these touchings therefore did not

rise to the level of indecent assault and battery, which is

"highly fact-specific."   Id. at 141.   Cruz is distinguishable

from this case.   The defendant here kissed the victim on the

mouth, which is an intimate part of the body, while she was

asleep and unable to consent, and while he was naked.

    We conclude that under the circumstances presented by this

case, there was sufficient evidence to allow the jury to

determine that the defendant's actions were indecent.

Accordingly, the judge did not err in denying the defendant's

motion for a required finding of not guilty; thus, the judgment

is affirmed.

                                    So ordered.
