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17-P-1091                                                 Appeals Court

                  COMMONWEALTH      vs.   JOHNNY COLON.


                               No. 17-P-1091.

            Plymouth.       April 13, 2018. - July 12, 2018.

        Present:        Green, C.J., Desmond, & Englander, JJ.


Indecent Assault and Battery. Practice, Criminal, Required
     finding. Constitutional Law, Vagueness of statute. Due
     Process of Law, Vagueness of statute.



     Complaint received and sworn to in the Wareham Division of
the District Court Department on October 9, 2015.

    The case was heard by Therese M. Wright, J.


     Michelle A. Dame for the defendant.
     Dan A. Jimenez, Assistant District Attorney, for the
Commonwealth.


    ENGLANDER, J.        The defendant challenges the sufficiency of

the evidence to convict him of indecent assault and battery on a

child under fourteen, where he hugged the victim for a prolonged

time while extensively licking in and around her ear.         We hold
                                                                       2


that the evidence, in context, was sufficient to support the

conviction, and that the criminal offense of indecent assault

and battery on a child under fourteen is not unconstitutionally

vague as applied to the facts here.

    Background.    We recite the facts in the light most

favorable to the Commonwealth.     The defendant and the victim met

for the first time at a family barbecue on September 6, 2015.

The defendant was fifty-eight years old at the time; the victim,

thirteen.   The family relationship was distant; the defendant

was the brother of a relative of the victim's stepfather.

There were twelve to fifteen people at the barbecue.

    Sometime during the barbecue the victim was introduced to

the defendant; the victim testified that during the barbecue the

defendant was looking at her in a way that made her

"uncomfortable."   As the barbecue was winding down, the victim

went to leave and encountered the defendant in a doorway.        The

defendant put his arms out for a hug; no one else was present,

as the remaining guests were in another room at the time.        The

victim hugged the defendant.     The defendant then pulled the

victim to him, "right on his chest," and "wouldn't let [the

victim] go."   The defendant then began licking the victim's ear,

including licking all around her three ear piercings, and

inserting his tongue in her ear.    The victim tried to get away,

but the defendant held on.     The hugging and ear licking went on
                                                                      3


for a prolonged period; the victim testified, "I honestly don't

know [the] exact time, but it felt like forever."      When another

of the victim's relatives came in the vicinity and called her

name, the defendant pushed the victim away and she left.

     The trial was jury-waived.   The judge convicted the

defendant of indecent assault and battery on a child under

fourteen, in violation of G. L. c. 265, § 13B; as to this charge

the defendant was sentenced to two and one-half years in the

house of correction, with ninety days to serve, the balance

suspended for two years' probation.1

     On appeal, the defendant raises two issues:    first, that

the evidence of ear licking and hugging was insufficient to

constitute indecent assault and battery as a matter of law, and

second, that the term "indecent" in the criminal statute is not

sufficiently defined and therefore is unconstitutionally vague.

     Discussion.   a.   Sufficiency of the evidence.   As to the

defendant’s first argument, we review a challenge to sufficiency

of the evidence to determine "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements




     1 The defendant was additionally charged and convicted of
assault and battery; the defendant raises no challenge to that
conviction.
                                                                     4


of the crime beyond a reasonable doubt."   Commonwealth v.

Lattimore, 378 Mass. 671, 677 (1979) (quotation omitted).

    To sustain a conviction of indecent assault and battery on

a child, the Commonwealth must prove "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."

Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138 (2018).     See

G. L. c. 265, § 13B.   There is no issue on appeal as to the

sufficiency of the evidence on the first two elements.     Rather,

the question on appeal is whether, on these facts, the evidence

was sufficient to establish that the unwanted touching by the

defendant was "indecent."

    Several of our cases have addressed the question of what

conduct constitutes "indecent" assault and battery.   We have

stated that "the intentional, unjustified touching of private

areas such as the breasts, abdomen, buttocks, thighs, and pubic

area of a female constitutes an indecent assault and battery."

Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991)

(quotation omitted).   These areas have been classified as

"sexual parts."   Commonwealth v. Rosa, 62 Mass. App. Ct. 622,

625 (2004).   But this list "is not intended to be exhaustive,"

and our cases have held that the unjustified touching of other

areas of the body may also qualify as indecent, depending upon
                                                                     5


context.   Ibid.   The mouth, in particular, has been recognized

as an "intimate" body part, and we have held that the insertion

of a tongue during a kiss, Commonwealth v. Castillo, 55 Mass.

App. Ct. 563, 565-567 (2002), and the insertion of fingers into

the mouth coupled with sexual commentary, can constitute

indecency.   Rosa, 62 Mass. App. Ct. at 624-626.

    In an effort to define an "indecent touching" more

generally, we have said that it is a touching that is

"fundamentally offensive to contemporary moral values," 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).     See Commonwealth v. Miozza, 67 Mass. App. Ct.

567, 572 (2006).     The test is an objective one, see Castillo, 55

Mass. App. Ct. at 565, and our cases have set forth several

other guideposts for consideration, to wit:     whether there is a

disparity in age and sophistication between assaulter and

victim; whether there is an existing relationship between them;

and, whether there is evidence of surreptitious behavior or the

use of force.   See id. at 567; Cruz, 93 Mass. App. Ct. at 139.

These guideposts can help to separate conduct that is

objectively offensive and sexual from conduct that may in fact

be innocent.
                                                                   6


    Applying these standards, we have no difficulty concluding

that there was sufficient evidence of an indecent assault and

battery here.   While ears may not be on the list of "sexual

parts," they are intimate enough so that the insertion of a

tongue into an ear can reasonably qualify as "indecent."

Indeed, here it is very difficult to credit any suggestion that

the conduct was not sexual in nature -- unlike a hug or a kiss,

an extended ear licking is not normal behavior between persons

who are not intimate.    And of course, here the evidence of

context adds greatly to the calculus.    The age disparity was

substantial – - fifty-eight to thirteen.    The location of the

contact was sufficiently separate from the others at the

barbecue that it could be found to be surreptitious --

particularly where the defendant broke off his conduct as soon

as another person was in the vicinity.    This behavior tends to

confirm not only that the conduct was improper, but that the

defendant knew it was.    See Rosa, 62 Mass. App. Ct. at 626.

Importantly as well, there was an element of force used here --

the victim testified that she tried to break away, but the

defendant would not let go.    There was more than sufficient

evidence for the judge to find "indecency."

    b.   Vagueness.      The defendant argues, alternatively, that

"indecent assault and battery," as defined under G. L. c. 265,

§ 13B, is unconstitutionally vague, because "persons of common
                                                                       7


intelligence must necessarily guess at its meaning."    Commonwealth

v. Quinn, 439 Mass. 492, 499 (2003) (quotation omitted).            The

defendant urges that "based on how the statute has previously been

defined and interpreted," one would not know that licking an ear

could qualify as "indecent."

     We disagree.    A statute is not unconstitutionally vague

merely because its terms require judicial construction, or

because "it requires a person to conform his conduct to an

imprecise but comprehensible normative standard."    Commonwealth

v. Gallant, 373 Mass. 577, 580 (1977) (quotation omitted).       The

vagueness challenge is to the statute as applied to the

defendant's facts.    See id. at 581, quoting from United States

v. Powell, 423 U.S. 87, 92 (1975) ("[V]agueness challenges to

statutes which do not involve First Amendment freedoms must be

examined in the light of the facts of the case at hand").     Here,

once again, we have no difficulty concluding that the

defendant's conduct fell comfortably within those behaviors that

are encompassed within the standards for "indecency" previously

set forth in our cases -- because the conduct was "fundamentally

offensive," and "immodest and improper because of its sexual

overtones."   Moreover, nothing in our prior cases suggests that

the conduct at issue would not qualify as indecent.     Under the

above standards there is no material difference between the

intentional insertion of a tongue into the victim's mouth in
                                                                    8


Castillo, and the defendant's intentional insertion of his

tongue into the victim's ear, here.

     Recently, in Commonwealth v. Cruz, 93 Mass. App. Ct. 136

(2018), we addressed facts that were not sufficient to

constitute indecency.    Those facts included a brief but tight

hug, "like a hug [the victim's] parents would give her," a kiss

on the neck, which in the victim's words was "not anything that

necessarily alarmed her," and the slight lifting of a corner of

the victim's shirt, but without exposing or touching of skin.

Id. at 137.    While the majority and concurring opinions in Cruz

help to further define the boundaries of indecent assault, the

facts here are plainly distinguishable from Cruz.     This case

does not involve a parental-like hug and a brief kiss on the

neck; it involves a forced hug that "felt like forever," coupled

with the licking of an ear, and the insertion of a tongue "over

and over again."2   See id. at 137-139.   There is nothing

unconstitutionally vague about the term "indecent" as applied to

these facts.

                                      Judgments affirmed.




     2 Indeed, the defendant's conduct was "overtly sexual based
upon objective standards," and thus would satisfy the standard
proposed in the concurring opinion in Cruz. See id. at 144.
