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16-P-1299                                                 Appeals Court

                     COMMONWEALTH   vs.   ROBERTO CRUZ.


                              No. 16-P-1299.

            Essex.       November 8, 2017. - April 13, 2018.

                Present:    Milkey, Blake, & Singh, JJ.


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



     Indictments found and returned in the Superior Court
Department on June 15, 2015.

    The cases were tried before Richard E. Welch, III, J.


     Daniel P. Tarlow for the defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


    SINGH, J.        Following a jury trial in the Superior Court,

the defendant was convicted of two counts of indecent assault
                                                                      2


and battery on a child,1 subsequent offense,2 and sentenced to

fifteen years to fifteen years and one day in State prison.3     On

appeal, the defendant argues that there was insufficient

evidence to support his convictions.   We agree and therefore

reverse the judgments and set aside the verdicts.

     Facts.   In the light most favorable to the Commonwealth,

the jury could have found the following facts.   Jane (a

pseudonym), a thirteen year old girl, was an intern at an

aviation company in the summer of 2014.   While she was working

one day, the defendant, an almost sixty year old man who she had

met before at the airport, waved her over to him.   After a brief

conversation, the defendant told her he would like to get her a

gift for her upcoming birthday.   He said that he would like to

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

Jane went into a nearby hallway for a while, and waited, then




     1 The defendant was acquitted of a third count of indecent
assault and battery on a child, subsequent offense, as well as
one count of child enticement related to the same incident. The
Commonwealth nolle prossed one count of simple assault and
battery before the case went to the jury.

     2 After jury trial on the underlying charges, the defendant
pleaded guilty as to the subsequent offense portion of the
indictments, acknowledging that he previously had been convicted
of indecent assault and battery on a person fourteen years or
older, more than twenty years prior.

     3 The subsequent offense portion of the indictments entailed
a minimum mandatory sentence of fifteen years imprisonment. See
G. L. c. 265, § 13¾.
                                                                   3


returned to work after a couple of minutes.   When she later saw

him again in the airplane hangar, she asked if the defendant

still wanted the hug,4 and he hugged her briefly around the

shoulders.

     The defendant then asked if Jane wanted another hug, and

said that they should go into another room.   He led her to a

separate room, with no one else present.   He gave her a second

hug, a little tighter, with a kiss on the neck.   This was not

"anything that necessarily alarmed [her]" because she believed

it was consistent with the way people of "European descent"

greeted each other.5

     The defendant then gave Jane a third hug without her

permission, which was lower down, on her waist and hips.    He

held her "very tight . . . like a hug [she] would receive from

[her] parents."   At this point, she felt "a little bit alarmed"

and thought the defendant's behavior was "kind of odd."6




     4 Jane testified that she was an honors student, and that
she had Asperger's Syndrome, which did not affect her ability to
understand everyday events, but sometimes made it difficult for
her to "deal with social nuances."

     5 This incident was the basis for the indictment charging
subsequent offense indecent assault and battery on a child, "to
wit: mouth on neck." The jury acquitted the defendant of this
count.

     6 This incident was the basis for the jury's guilty verdict
on the indictment charging subsequent offense indecent assault
and battery on a child, "to wit: hug."
                                                                    4


     The defendant then stepped back with one hand grabbing her

polo shirt at her right hip, "lifting it slightly," but not

exposing or touching any of her skin.     He also grabbed Jane's

hand.    After starting to lift the shirt, he paused, and put it

down.    He then asked her to turn around, and she did, becoming

increasingly concerned.    The defendant then told her she was

very tall, and walked out of the room.7

     Discussion.    At the close of the Commonwealth's case, the

defendant moved for required findings of not guilty, which was

denied.   The defendant argues that the judge erred because there

was insufficient evidence to establish that the assaults in

question were indecent.    In reviewing the motion's denial, we

examine "whether the Commonwealth produced enough evidence,

taken in the light most favorable to the Commonwealth, to

satisfy any rational trier of fact beyond a reasonable doubt

that each element of the crime was present."    Commonwealth v.

Hilton, 398 Mass. 63, 64 (1986).    See Commonwealth v. Latimore,

378 Mass. 671, 676-678 (1979).    No essential element of the

crime may be left to a jury's conjecture, surmise, or guesswork.

Commonwealth v. Kelley, 359 Mass. 77, 88 (1971).




     7 This incident was the basis for the jury's guilty verdict
on the indictment charging subsequent offense indecent assault
and battery on a child, "to wit: hand on waist."
                                                                    5


    To sustain a conviction for indecent assault and battery on

a child, the Commonwealth must prove, beyond a reasonable doubt,

that (1) the child was not yet fourteen years old at the time of

the offense, (2) the defendant intentionally touched the child

without legal justification or excuse, and (3) the touching was

indecent.   See G. L. c. 265, § 13B.   See also Instruction 6.500

of the Criminal Model Jury Instructions for Use in the District

Court (3d ed. 2009).    There is no issue on appeal as to the

sufficiency of the evidence on the first two elements.     There is

also no real dispute as to the facts as they could be found, in

the light most favorable to the Commonwealth.    The question is

whether, on those facts, the evidence was sufficient to

establish that the defendant's touching of Jane was "indecent."

    We have "held that the intentional, unjustified touching of

private areas such as 'the breasts, abdomen, buttocks, thighs,

and pubic area of a female'" is indecent pursuant to the

statute.    Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184-185

(1991), quoting from Commonwealth v. De La Cruz, 15 Mass. App.

Ct. 52, 59 (1982).    These areas have been "classified as sexual

parts of the body."    Commonwealth v. Rosa, 62 Mass. App. Ct.

622, 625 (2004).     The list is not exhaustive, however, and "a

touching need not be confined to these listed areas of the body

to be deemed indecent."    Commonwealth v. Miozza, 67 Mass. App.

Ct. 567, 571 (2006).    Indeed, in addition to the listed areas,
                                                                   6


the mouth and its interior have been held to be intimate parts

of the body, in certain circumstances.   See Commonwealth v.

Mamay, 407 Mass. 412, 418 (1990) (doctor's tongue inserted into

patient's mouth); Commonwealth v. Castillo, 55 Mass. App. Ct.

563, 566-567 (2002) (defendant forced his tongue into mouth of

his stepdaughter's fourteen year old girl friend).

    There is no allegation here that the defendant had any

physical contact with Jane involving any of the body parts that

previously have been held to be intimate.   We recognize that, in

certain circumstances, "the touching of other intimate parts

. . . may violate contemporary views of personal integrity and

privacy."   Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307

(2005).   "[I]ntimacy, as regards parts of the body, must be

viewed within the context in which the contact takes place."

Commonwealth v. Rosa, 62 Mass. App. Ct. at 625, quoting from

People v. Rivera, 525 N.Y.S.2d 118, 119 (N.Y. Sup. Ct. 1988).

    "When evaluating evidence of alleged indecent behavior, we

consider all of the circumstances."   Commonwealth v. Castillo,

55 Mass. App. Ct. at 566.   Our caselaw has established that an

indecent touching is one that is "fundamentally offensive to

contemporary moral values," Commonwealth v. Mosby, 30 Mass. App.

Ct. at 184 (quotation omitted), and that "society would regard

as immodest and improper because of its sexual overtones."

Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 779 (1999).    The
                                                                   7


test for indecency is objective, turning on the nature of the

conduct rather than the defendant's intent.   See

Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314 (1997).

    In the past we have looked to any disparity in age and

sophistication between the parties to inform our understanding

of the act in question.   See Commonwealth v. Castillo, 55 Mass.

App. Ct. at 567.   Here the disparity between the almost sixty

year old defendant and thirteen year old Jane was substantial.

We have also looked to the existing relationship between the

parties as well as any surreptitious behavior.   See ibid.    Here,

the defendant was not well-known to Jane, and the defendant led

her to a more private area.   With this context, the jury readily

could have found, not only that the defendant's actions were

inappropriate, but that he knew that they were so.    The narrow

question before us is not whether the defendant's actions were

wrong, but whether his conduct amounted to an indecent touching.

Thus, context alone is not determinative and we must further

examine the touchings alleged.

    As to the hug, Jane described it as tight, like a hug that

her parents would give her, tending to suggest that, though

overly familiar, the contact itself was not sexual.   No

suggestive comments, propositions, or gestures accompanied the

hug, compare Commonwealth v. Rosa, 62 Mass. App. Ct. at 624

(defendant stuck his thumb into mouth of eleven year old
                                                                    8


neighbor girl and asked her if she knew how to suck on it, if

she wanted to suck on it, if she wanted to make it wet), and

there was no indication that the contact lasted for any

noteworthy amount of time.    Compare Commonwealth v. Vazquez, 65

Mass. App. Ct. at 309 (uncle's open mouthed kiss on lips of

twelve year old niece lasted longer than familiar peck on

cheek).    Certainly, contact taking place during a hug may

constitute indecency.    See, e.g. Commonwealth v. Holman, 51

Mass. App. Ct. 786, 792-793 (2001) (defendant rubbed buttocks of

his girl friend's twelve year old daughter while hugging her).

Here, however, there were no such additional circumstances

present.

    Considering the incident in the context of its attendant

circumstances and in the light most favorable to the

Commonwealth, we conclude that there was insufficient evidence

to establish that the hug intruded upon a private or intimate

area of the body so as to be considered "indecent" within the

meaning of the criminal statute.

    As to the defendant grabbing Jane's shirt at the hip and

lifting it, here too the Commonwealth's evidence was

insufficient to establish indecency.    We have held previously

that, in certain circumstances, removing a person's clothes may

constitute indecent assault and battery.    See Commonwealth v.

Kopsala, 58 Mass. App. Ct. 387, 393 (2003) (upholding conviction
                                                                   9


for indecent assault and battery where defendant "pulled up the

victim's shirt, exposing her breasts, unbuttoned her jeans and

pulled them off, and removed her panties").   See also A.P. v.

M.T., 92 Mass. App. Ct. 156, 164 (2017) (in certain

circumstances, removing dress and underwear of four year old

child could constitute indecent assault and battery).

     In contrast to the conduct in those cases, however, the

defendant's slight lifting of Jane's shirt at her hip resulted

in no exposure of any part of her body, let alone any intimate

part.   Again, we conclude 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.

     In holding that the evidence was insufficient in this case,

we note that analysis of the evidence of alleged indecent

contact is highly fact-specific.   While the defendant's general

conduct toward Jane may well have crossed acceptable norms of

appropriate behavior, we cannot say that the touchings

themselves, even in context, were indecent for purposes of a

criminal conviction for indecent assault and battery under G. L.

c. 265, § 13B.   For the reasons stated above, the judgments are
                                                                   10


reversed and the verdicts are set aside.8   Judgment shall enter

for the defendant.

                                   Judgment reversed.

                                   Verdict set aside.

                                   Judgment for the defendant.




     8 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. See Commonwealth v. Farrell,
31 Mass. App. Ct. 267, 268-269 (1991).
    MILKEY, J. (concurring).      Jane (a pseudonym) testified that

the defendant gave her a close hug "like [she] would receive

from [her] parents."     She also testified that, as he was pulling

away from the hug, the defendant lifted the bottom of her polo

shirt "slightly," without touching or exposing any skin.        Based

on such conduct, the defendant was convicted of two counts of

indecent assault and battery on a person under the age of

fourteen, G. L. c. 265, § 13B, and sentenced to fifteen years in

State prison.     I agree with the majority's conclusion that, as a

matter of law, the defendant's conduct -- while improper -- did

not rise to the level of an "indecent" assault and battery.

Ante at          .   I also agree that none of the existing cases

has held that conduct of this nature could be considered

indecent.    Nevertheless, our cases include some expansive

pronouncements that lend support to the Commonwealth's position,

and thereby provide encouragement to the type of prosecution

here.     I write separately to express my view that the case

before us presents an appropriate opportunity to revisit such

language.

    The narrow question we face is not whether the defendant's

conduct was improper or even illegal.     Instead, it is whether

the Legislature intended that such conduct amounted to an

"indecent" assault and battery of a child, an offense the

Legislature considered so heinous that it merits severe
                                                                   2


mandatory sanctions.1   Thus, the case goes to the heart of what

it means for a touching to be indecent.

     As the majority well explains, an intentional, unjustified

touching of certain enumerated body parts -- such as genitalia,

buttocks, and female breasts -- is deemed indecent under the

statute.   See, e.g., Commonwealth v. Mosby, 30 Mass. App. Ct.

181, 184 (1991).   Cases involving the touching of such off-

limits areas therefore generally are straightforward.2

Difficulties arise where, as here, there has been no contact

with any of those areas, but the defendant nevertheless has

touched the person in a manner that could be considered




     1 Subject to limited constitutional review -- not here
presented -- it is, of course, up to the Legislature to set
whatever minimum mandatory sentences it deems warranted. The
question before us therefore is one of legislative intent:
whether the Legislature intended to include conduct of the sort
at issue here within the scope of the offenses that would be
treated as harshly as the indecent assault and battery statute
does. As the trial judge himself observed in imposing a minimum
mandatory fifteen-year sentence, that punishment was "completely
disproportionate to the crime here," and "the same prison
sentence . . . would be imposed upon someone who committed
murder in the second degree." That the defendant might not have
received any greater punishment for killing Jane than for
hugging her begs the question whether the Legislature intended
to include the latter within the scope of offenses that would be
subject to such sanctions.

     2 That said, the list itself may be over-inclusive. For
example, the list includes the "abdomen," see Commonwealth v.
Mosby, supra at 184, even though it is not immediately apparent
how the touching of a person's abdomen necessarily would be
considered sexual in nature.
                                                                     3


improper.    Our cases hold that such a touching still could be

found to have been "indecent," and they set forth a number of

general guiding principles to assist in resolving that issue.

In this manner, we have pronounced that a touching can be

indecent if it violates "contemporary views of personal

integrity and privacy,"3 if it is "fundamentally offensive to

contemporary moral values,"4 or if it is "immodest and improper

because of its sexual overtones."5

     If the just-quoted principles are indeed what is supposed

to guide the fact finder, then we should be affirming the

conviction before us.    Here, a man who was almost sixty years

old brought a thirteen year old girl he had only recently met to

a back room where he improperly gave her a close hug and briefly

started to lift the bottom of her shirt.    To state what I

believe is obvious, jurors readily could consider such conduct

as flouting contemporary societal norms, as violating the

victim's "personal integrity and privacy," and as having "sexual

overtones."6   Accordingly, if we are to hold -- as I agree we


     3 Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307
(2005).

     4 Commonwealth v. Mosby, supra at 184, quoting from
Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43 (1985).

     5   Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 779 (1999).

     6 Especially since other explanations for the defendant's
actions are not apparent, the jury could have concluded that the
                                                                    4


should –- that the defendant's conduct was not "indecent," then

it must be because our prior pronouncements are too expansive as

to how they define that term.

    To be sure, the term "indecent" emits of a broad range of

definitions, some of which support the Commonwealth's position.

For example, one commonly used dictionary sets a bar that is

markedly low and indefinite for what it means for something to

be "indecent."   See American Heritage Dictionary of the English

Language 891 (5th ed. 2016) (defining "indecent" to mean

"[o]ffensive to accepted standards of decency or modesty; lewd

or vulgar . . . [n]ot appropriate or becoming; unseemly").    But

under the rule of lenity, ambiguity in the meaning of a

statutory term must be resolved in favor of a defendant.     See

Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting

from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992)

("[W]hen a criminal statute can 'plausibly be found to be




defendant's actions were driven by sexual urges. This alone
likely would be enough to create "sexual overtones" in the mind
of the jurors. If the standard is one of mere "sexual
overtones," proper jury instructions about ignoring a
defendant's intent are unlikely to cure the problem. See
Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 327 n.37 (2012)
(Milkey, J., dissenting) ("In the context of [a child
pornography] case . . . an instruction [that the jury are not to
consider whether the defendant found the photograph lewd] has as
realistic a chance of successfully getting the jury to put the
defendant's thoughts out of their minds as would a plea to 'stop
thinking about the elephant in the room'").
                                                                   5


ambiguous,' the rule of lenity applies, and we 'give the

defendant the benefit of the ambiguity'").     Indeed, the

interpretation proffered by the Commonwealth –- in my view -–

rests on notions of impropriety so vague as to raise due process

concerns.   A more narrow interpretation is necessary to avoid

those concerns.   See Commonwealth v. Kenney, 449 Mass. 840, 850

(2007), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734

(1977) ("It is well established that due process requires

criminal statutes that are not 'sufficiently explicit to give

clear warning as to proscribed activities' to be declared

unconstitutional").   See also Commonwealth v. Carpenter, 325

Mass. 519, 521 (1950) ("The vice of the ordinance [prohibiting

'sauntering or loitering' in a street] lies in its failure to

prescribe any standard capable of intelligent human evaluation

to enable one chargeable with its violation to discover those

conditions which convert conduct which is prima facie lawful

into that which is criminal"), and cases cited.     Put simply,

courts have a responsibility to make explicit where the

boundaries of illegality are drawn.   The role of a jury should

be to decide whether a defendant has committed the offense

charged, not to resolve what that crime is.7


     7 I recognize that courts have not always adopted this view
in cases dealing with human sexuality. In fact, examples abound
of cases in which -- in defining sex offenses -- judges have
tolerated levels of vagueness and ambiguity that would be deemed
                                                                   6


     How then should courts draw the line between an ordinary

assault and battery and an indecent one in cases that do not

involve the touching of one of the forbidden body parts?   In my

view, mere sexual "overtones" are not enough.   Instead, the

contact should be required to be overtly sexual based on

objective standards.8   In other words, for a touching to be

indecent, it would have to involve a level of physical

invasiveness comparable to the touching of one of the forbidden

body parts.9   A hug like a parent would give and the "slight[]"

lifting of the bottom of Jane's shirt do not meet that standard.



unacceptable in other contexts. See, e.g., Jacobellis v. Ohio,
378 U.S. 184, 197 (1964) (Stewart, J., concurring) (where
Justice Stewart famously declaimed, with regard to trying to
define obscenity, "I know it when I see it"). See also United
States v. Frabizio, 459 F.3d 80, 85-86 & n.9 (1st Cir. 2006)
(declining to define "lasciviousness" for jury in child
pornography case, because term "needs no adornment" and because
defining term risked removing some conduct from intended scope
of statute); Commonwealth v. Sullivan, supra at 294, 302
(upholding child pornography conviction based on possession of
single photograph of naked child playing on beach even though
nakedness alone could not make photograph "lewd" and jury had
been given little objective direction as to what more was
needed). Providing juries objective guidance on what it means
for a touching to be indecent is especially important given that
the subject area of human sexuality tends to evoke such strong
emotional responses.

     8 Applying such a standard would not have changed the result
of the past reported cases. For example, a doctor's inserting
his tongue into his patient's mouth would still constitute an
indecent assault and battery. See Commonwealth v. Mamay, 407
Mass. 412, 418 (1990).

     9 Compare Commonwealth v. Sullivan, supra at 320 (Milkey,
J., dissenting) ("A visual image of a naked child cannot be
                                                                   7


     Notably, adhering to such a standard would not have left

the Commonwealth without a remedy here.   Had 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.   Moreover, the Commonwealth could have

asked the judge to take the particular nature of these touchings

into account as a factor to be considered during sentencing.10

The fact that the Commonwealth did not pursue that sensible

course of action is due in part to the undue breadth of our

prior pronouncements.




considered a 'lewd exhibition' unless it presents the child in
an overtly 'sexualized' manner that is tantamount to sexual
abuse or exploitation of the child").

     10In this regard, I note that at sentencing, Jane's mother
gave an eloquent statement about the impact of the defendant's
actions on her daughter. It is apparent from the transcript
that the judge was moved by this statement, and he observed that
he still would have imposed a prison sentence if one had not
been required, even though he believed the "touchings here[] are
certainly not worthy of [the] Draconian sentence [required by
the statute]."
