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12-P-1881                                            Appeals Court

                COMMONWEALTH   vs.   CLIFTON HOLBROOK.


                           No. 12-P-1881.

        Suffolk.       June 5, 2014. - September 26, 2014.

            Present:   Cohen, Carhart, & Maldonado, JJ.



Indecent Assault and Battery. Practice, Criminal, Motion to
     suppress, Instructions to jury. Intent.



     Indictment found and returned in the Superior Court
Department on November 12, 2008.

     A pretrial motion to suppress evidence was heard by Frank
M. Gaziano, J., and the case was tried before Thomas A. Connors,
J.


     William A. Korman for the defendant.
     Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.


    COHEN, J.    After a Superior Court jury trial, the defendant

was convicted of indecent assault and battery of a child under

the age of fourteen, arising from an incident involving his five

year old grandniece.   On appeal, the defendant makes the
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following claims:     (1) his motion to suppress statements made

during his police interview should have been allowed because he

was intoxicated at the time he waived his Miranda rights; (2) it

was error to deny his motion for a required finding of not

guilty because he was only a passive recipient of the indecent

touching and did not intend for it to happen; and (3) the judge

erred in instructing the jury as to how the element of intent

could be satisfied.    We affirm.

    1.   Motion to suppress.     The defendant waived his Miranda

rights after having been informed of them twice -- first at

booking and again at the beginning of the recorded interview.

He affirmed that he understood each of the rights and initialed

an acknowledgment.     When asked if he was "under the influence of

alcohol or any drugs right now," the defendant responded in the

negative.    He now argues that, in fact, he was impaired by

alcohol and drugs when he gave the statement, and his waiver

therefore was invalid.

    The evidence at the motion hearing consisted of an

audiotape recording of the interview and the testimony of three

witnesses:   the two detectives who conducted the interview, and

the defendant's sister.     Because the motion judge considered the

audiotape in light of the hearing testimony and made credibility

determinations relevant to his subsidiary findings of fact, we
                                                                    3


afford those findings substantial deference.   See Commonwealth

v. Clarke, 461 Mass. 336, 341 (2012).

    The judge found that the detectives had the opportunity to

assess the defendant's sobriety, and credited their testimony

that the defendant was not under the influence of alcohol or

narcotics.   The detectives testified that the defendant had no

difficulty walking, did not slur his speech, and appeared to

understand the proceedings.   Consistent with the audiotape

recording, they also reported that he responded to numerous

questions and provided a coherent narrative.

    The judge also credited the testimony of the defendant's

sister that the defendant had ingested an unknown quantity of

alcohol and drugs before going to the police station.    However,

the judge found that this did not undermine the testimony of the

detectives, given that the interview took place several hours

after his sister lost sight of the defendant and, contrary to

his sister's description of the defendant's behavior when

intoxicated, he was able to answer questions cogently.

    Because the judge's findings are warranted by the evidence

and fully support the conclusion that the defendant's waiver of

his Miranda rights was not rendered involuntary due to

intoxication, it was not error to deny the motion to suppress.

    2.   Sufficiency of the evidence.   Viewing the evidence in

the light most favorable to the Commonwealth, Commonwealth v.
                                                                       4


Latimore, 378 Mass. 671, 677 (1979), the jury could have found

the following facts.       In July, 2008, the defendant's five year

old grandniece and her immediate family were residing with the

defendant and other relatives in the defendant's mother's house.

The incident in question began when the child entered the

defendant's bedroom and asked if she could watch television with

him.       The defendant, who was lying in his bed, agreed and

allowed the child to get under the blanket with him.       In his

statement to the police, the defendant gave the following

account of what then transpired.       As they were watching

television, the child put her hand in the defendant's pants and

"grabbed" his penis, pulling it over the elastic of his

underwear.      She "was playing with it . . . like she knew what

she was doing" and was "knead[ing]" and "wiggl[ing]" it "like my

wife would."      While she did this, the defendant's penis became

erect.      The defendant did not stop her for another ten seconds,

at which point he told her to leave.       The defendant stated that

the child had "played with" his penis for "about a minute."

       The defendant claims here, as he did at trial, that he was

only a passive participant in the touching and, hence, there was

insufficient evidence to prove that he intended to commit the

offense.1      This argument is without merit.   The fact that the


       1
       The defendant does not claim that the evidence was
insufficient in any other respect.
                                                                     5


defendant did not directly perform the touching does not

preclude his conviction of indecent assault and battery of a

child.   See Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 75-

76 (2007) (affirming the defendant's conviction where he

encouraged the child victim to touch his penis as part of a

game).   See also Commonwealth v. Nuby, 32 Mass. App. Ct. 360,

362 (1992) (affirming the defendant's conviction where he forced

the child victims to fondle their mother's breasts).

    Furthermore, even when there is "no direct evidence of the

defendant's intent," the fact finder may "infer the element of

criminal intent from the circumstances."   Commonwealth v.

Correia, 381 Mass. 65, 83 (1980).   To be sure, there will be

situations where a child's spontaneous initiation of indecent

contact with an adult will not give rise to a reasonable

inference that the adult possessed criminal intent, such as

where the adult immediately calls a halt to the activity.    Here,

however, the defendant's intent to commit an indecent assault

and battery on the child readily may be inferred.   Even if the

child's initial grabbing of the defendant's penis was

spontaneous and unexpected, the defendant permitted her to touch

him in a sexual manner for "about a minute" before finally

telling her to leave the room.   In these circumstances, the jury

reasonably could conclude from the defendant's acquiescence in

her behavior that he intended the prohibited contact.
                                                                       6


       Other evidence only bolstered this inference.     The child's

mother testified before the grand jury that the child had been

found in the defendant's bedroom on other occasions.       She

described one particular instance where she discovered the child

and the defendant under the covers together in the defendant's

bed.       The defendant was at least partially undressed at the

time; she could see his bare shoulders and that he was not

wearing a shirt.       The child's mother also recounted another

instance where she found the child seated on the defendant's lap

on the back porch of the house.       The defendant was wearing a t-

shirt and shorts, and the child's hand was inside his shorts up

to the middle of her forearm.       The mother immediately told the

child to get off the defendant's lap and addressed the

defendant, saying, "What are you doing?       You're a grown man!"

The defendant's reply was, "Well, she put it there."

       Called by the Commonwealth as a witness at trial, the

child's mother claimed not to remember what she told the grand

jury.       However, after voir dire, the judge found that her lack

of memory was feigned.       He therefore admitted her grand jury

testimony for substantive purposes,2 subject to a limiting

instruction given in the final charge that, if believed, the

defendant's prior acts could be used "only for the limited


       2
       See Commonwealth v. Daye, 393 Mass. 55, 73-75 (1984);
Commonwealth v. Sineiro, 432 Mass. 735, 741 (2000).
                                                                       7


purpose of what light, if any, [they] cast[] upon [his] motive,

intent or state of mind."

    Although the defendant all but ignores this evidence in his

brief, his earlier behavior with the child solidified the

inference that during the incident forming the basis of the

charge, the defendant willingly and intentionally engaged in

improper contact with her.

    3.   Jury instruction.   The defendant's jury instruction

argument fares no better than his argument on sufficiency.       The

judge instructed the jury that the Commonwealth was required to

prove that the defendant intended that the child touch his penis

with her hands, and that the Commonwealth had to prove beyond a

reasonable doubt that the touching was not inadvertent.     He

further instructed that, in determining whether to infer intent,

they were to consider all of the facts and circumstances.

Finally, he told the jury that they must be "satisfied that the

Commonwealth has proven beyond a reasonable doubt that [the

defendant] intended and permitted [the child] to touch his penis

with her hand and that this was not done by any accident and not

done by any inadvertence."

    The defendant argues on appeal that the use of the phrase

"intended and permitted" was error, because the defendant could

only be found guilty if he had coerced, cajoled, compelled, or

created some incentive for the child to act as she did, as was
                                                                  8


true in Commonwealth v. Nuby, 32 Mass. App. Ct. at 362, and

Commonwealth v. Davidson, 68 Mass. App. Ct. at 75-76.   Passing

the question of the applicable standard of review, there was no

error in the instruction.   Nothing in either Davidson or Nuby

limits the proof of intent to commit indecent assault and

battery upon a child in the manner posited by the defendant.     As

previously observed, intent may be proved by circumstantial

evidence, including, as here, evidence that the defendant

permitted prolonged indecent contact with the child.

                                   Judgment affirmed.
