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13-P-1766                                               Appeals Court

                     COMMONWEALTH   vs.   KEITH TODD.


                             No. 13-P-1766.

            Essex.      February 6, 2015. - August 6, 2015.

                Present:   Cypher, Hanlon, & Agnes, JJ.


Youthful Offender Act. Grand Jury. Evidence, Grand jury
     proceedings. Practice, Criminal, Grand jury proceedings,
     Dismissal. Probable Cause. Rape.



     Indictment found and returned in the Superior Court
Department on February 26, 2013.

     After transfer to the juvenile session of the Gloucester
Division of the District Court Department, a motion to dismiss
was heard by Joseph W. Jennings, III, J.


     Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
     Patricia L. Garin for the juvenile.


    CYPHER, J.       A District Court judge granted a motion by the

juvenile, Keith Todd, to dismiss a youthful offender indictment

on a charge of rape of a child.      The juvenile argued in his

motion to dismiss that the evidence presented to the grand jury
                                                                     2


was insufficient to establish that he committed the crime of

rape, specifically that there was insufficient evidence "that

the conduct constituting the alleged sexual assault involved the

infliction or threat of serious bodily harm" and that the grand

jurors were not properly instructed on this element of the

youthful offender statute.    The Commonwealth appeals, arguing

that the Commonwealth presented sufficient evidence to sustain

the indictment, where the evidence of the digital penetration,

coupled with the circumstances of the penetration, demonstrated

that the juvenile's conduct involved threat of serious bodily

harm to the victim to sustain a rape charge under the youthful

offender statute.

    1.     Evidence before the grand jury.   Detective Steven

Mizzoni of the Gloucester police department presented the

Commonwealth's case to the grand jury.    The juvenile was a

fifteen year old boy; the victim was an eight year old girl.

According to the victim, she had been "playing down the street a

few blocks away" from her house with three boys, including her

brother.    One of the boys was performing bicycle tricks, while

the others watched.    While the victim was there, the juvenile

allegedly directed her away from where the other boys were

playing to an area of an abandoned building.    Once in this area,

the juvenile then allegedly put his hands down the front and

back of the victim's pants.    The victim said that when the
                                                                     3


juvenile first put his hand down her pants, he "put his hand a

little bit near her butt" and touched her "butt hole" by

"dragg[ing] his fingers over" it.   He allegedly used his fingers

to touch the victim's vagina, "mov[ing] [his fingers] slightly,"

"rubb[ing] against . . . her vagina," and putting one of his

fingers inside her vagina "a little bit."   The victim said that

it felt "like a bug [was] inside of her pants."   The juvenile

allegedly also asked the victim to rub his leg with her hand,

but she did not do so.   After the alleged assault occurred, the

victim went home and told her mother what happened.

    Detective Mizzoni, who met with the victim and her mother

at the Gloucester police station after the alleged incident

occurred, was familiar with the abandoned building the victim

described.   It had been "vacant for quite a while."    The victim

also accurately described to Detective Mizzoni the location of

the alleged incident as "right across from [the juvenile's]

house."   The victim told Detective Mizzoni that the other boys

had continued playing in the area where she had been, but that

they would not have been able to see her in the area where the

juvenile allegedly took her.

    The juvenile told Detective Mizzoni that he and his brother

were walking to their home on Pleasant Street, at the

intersection of Pleasant and Cedar Streets, in Gloucester.    As

they neared their house, a friend on his bicycle approached them
                                                                      4


and asked the juvenile if he would watch him perform some

bicycle tricks.   The juvenile agreed, sitting down against a

wall of a "somewhat abandoned" building on Cedar Street to watch

the bicycle tricks.   There were other children playing in the

area, one of whom was the victim.

    While the juvenile was watching the performance, the victim

asked the juvenile if he wanted a piece of candy.    He accepted.

The juvenile continued to watch his friend perform the bicycle

tricks.   He then went home.

    2.    Procedural history.   The grand jury returned an

indictment for rape, based on the evidence presented to it.     The

Commonwealth then asked the grand jury to consider whether the

juvenile was a youthful offender.   The Commonwealth instructed

the grand jury that to conclude that the juvenile was a youthful

offender they had to find these elements:    that the juvenile was

"between fourteen and seventeen years of age at the time of the

offense, said offense being a felony, said offense involving the

infliction or threats of infliction of serious bodily harm, or

said offender previously having been committed to the Department

of Youth Services."   The Commonwealth explained that the

youthful offender portion of the indictment would be based on

the testimony the grand jury had already heard because the

Commonwealth had no additional witnesses to present.
                                                                      5


       The motion judge allowed the motion to dismiss with a

margin endorsement setting forth three findings:      (1) there was

no caretaker relationship between the victim and the juvenile,

and the victim accompanied the juvenile voluntarily; (2) "the

victim's statements that there was 'a little bit' of penetration

and that [the victim] felt like 'she had a bug in her pants'"

was not "sufficient to establish the charge of rape"; and (3)

there was not "sufficient evidence of a threat of serious bodily

harm[,] noting that no such injury was actually sustained."         The

judge made no ruling on the juvenile's argument that the grand

jury instructions were insufficient.

       3.   Sufficiency of the evidence before the grand jury.

Generally, a motion to dismiss cannot be used to inquire into

the adequacy or competency of the evidence on which an

indictment is based.     Commonwealth v. McCarthy, 385 Mass. 160,

161-162 (1982).    If, however, there has been no evidence

presented to the grand jury, the validity of the indictment may

be challenged.    Id. at 161-163.    When considering a motion to

dismiss an indictment, the judge must determine whether the

grand jury heard "sufficient evidence to establish the identity

of the accused . . . and probable cause to arrest him."      Id. at

163.

       a.   Rape indictment.   At the hearing on the motion to

dismiss, the defense attorney disavowed an argument in her
                                                                   6


memorandum in support of her motion that the evidence was

insufficient to establish rape and focused instead on the

evidence concerning the requirements of the youthful offender

indictment.   Nevertheless, the judge included as a reason for

dismissal that "the victim's statement that there was 'a little

bit' of penetration and that she felt like 'she had a bug in her

pants'" was not sufficient to find penetration and was, "in and

of itself," insufficient "to establish the charge of rape."

This was erroneous as a matter of law, as it is well settled

that penetration, however slight, of a person's genital opening

is sufficient.   Commonwealth v. Lopez, 433 Mass. 722, 726-727

(2001).

    b.    Youthful offender indictment.   Where, as here, the

Commonwealth sought to obtain a youthful offender indictment

under G. L. c. 119, § 54, in addition to the indictment for

rape, the Commonwealth was required to offer evidence sufficient

to establish probable cause to show that "(1) the juvenile was

between fourteen and seventeen years old at the time of the

offense; (2) the offense, if committed by an adult, is

punishable by imprisonment in State prison; and (3) the juvenile

has either previously been committed to the Department of Youth

Services, or 'the offense involves the infliction or threat of

serious bodily harm,' or the person committed a violation of

G. L. c. 269, § 10(a), (c), or (d), or § 10E."   Commonwealth v.
                                                                     7


Washington W., 462 Mass. 204, 209-210 (2012), quoting from G. L.

c. 119, § 54.    Where the evidence is insufficient to establish

probable cause to find that the requirements of the youthful

offender statute have been met, a judge may dismiss the

indictment.    See Commonwealth v. Quincy Q., 434 Mass. 859, 863,

865 (2001).    See also Commonwealth v. Mogelinski, 466 Mass. 627,

652-653 (2013) (Gants, J., concurring in part and dissenting in

part).   When making such a determination, the evidence is

examined in the light most favorable to the Commonwealth.

Washington W., supra at 210.

     In the case at bar, the juvenile focuses exclusively on the

third element of the youthful offender statute and argues that

the evidence was insufficient to establish the infliction or

threat of serious bodily harm.1    Our decisional law has

considered this particular element in the context of the

youthful offender statute on a handful of occasions.    See, e.g.,

Commonwealth v. Clint C., 430 Mass. 219 (1999); Quincy Q.,

supra; Washington W., supra; Felix F. v. Commonwealth, 471 Mass.

513 (2015).2    "[W]here a prosecutor seeks a youthful offender


     1
       We note that none of the other bases for establishing this
element is applicable in this case.
     2
       In Felix F., the juvenile was indicted as a youthful
offender for possession of heroin with intent to distribute.
The court held "that the definition of 'threat' in the juvenile
offender statute requires a communication or declaration,
explicit or implicit, of an actual threat of physical injury by
                                                                     8


indictment relying on 'the infliction or threat of serious

bodily harm' component of the statute, the conduct constituting

the offense must involve the infliction or threat of serious

bodily harm."   Quincy Q., supra at 863.   See Clint C., supra at

226.   It is necessary to consider the "actual conduct undertaken

by the defendant, rather than merely the elements of the

underlying crime, in determining whether an indictment is

authorized under" the youthful offender statute.    Commonwealth

v. Hoshi H., 72 Mass. App. Ct. 18, 19 (2008).

       In Clint C., a fifteen year old juvenile was babysitting

his six year old niece and put his penis in her mouth, making

her perform fellatio while she stroked his penis without threats

or physical injury.   Although the underlying charge was

statutory rape, which contained no requirement of force, threat,

or lack of consent, the Supreme Judicial Court ruled that "the

invasive nature of the act of penetration created the threat of

serious bodily harm."    Clint C., supra at 226.   The court added



the juvenile." Felix F., 471 Mass. at 516. Recognizing that
the underlying crime in that case does not "involve an explicit
threat and there is no identifiable victim," id. at 517, the
court concluded that the threat requirement was not satisfied.
Id. at 516. Here, the age difference between the juvenile and
the victim, along with the fact that the juvenile directed her
away from a public area to a private location where the rape
occurred, is sufficient to establish an implicit threat of
serious bodily harm. Id. at 517, citing Washington W., 462
Mass. at 210.
                                                                    9


that "[t]he juvenile's position of authority, the age difference

between the juvenile and the victim, and the vulnerability of

the victim are sufficient to support a youthful offender

indictment," and vacated the dismissal of the indictment.    Ibid.

     In Quincy Q., the fifteen or sixteen year old juvenile was

alleged to have touched the vagina of a young girl and to have

forced her to touch his penis over a period of two years and on

at least ten occasions when the girl was between the ages of

three and five, evidence that supported a charge of indecent

assault and battery.3   The Supreme Judicial Court concluded that

"the touching involved in this case is not sufficiently invasive

in nature (as compared to penetration) to create the threat of

serious bodily harm," and ruled that the motion judge erred in

denying the juvenile's motion to dismiss the indictment.     Quincy

Q., supra at 863-864.

     In Washington W., the Supreme Judicial Court held that the

act of the juvenile pushing a similarly aged child to the

ground, pulling down the child's pants, and entering the child's

anus with his penis was sufficient evidence of the threat of

serious bodily harm to support a finding of probable cause

necessary to establish the requirements of the youthful offender

     3
       Although the juvenile in Quincy Q. was also charged with
rape, the youthful offender indictment at issue in Quincy Q. was
related solely to the charge of indecent assault and battery.
See generally Quincy Q., 434 Mass. at 863-864.
                                                                   10


indictment.   Washington W., supra at 210.4   The court declined to

rule generally, however, that penetration "alone, in every

circumstance, creates a threat of serious bodily harm."    Id. at

210 n.4.

     The facts of this case are closest to those of Clint C. in

terms of the conduct that allegedly occurred.    The evidence

shows that the fifteen year old juvenile took an eight year old

child to a secluded area and penetrated her vagina with his

finger.    As in Clint C., supra at 226, "the invasive nature of

the act of penetration created the threat of serious bodily

harm," and the age difference between the juvenile and the

victim and the vulnerability of the victim "are sufficient to

support a youthful offender indictment."

     In addition, the case at bar can be distinguished from the

facts at issue in Quincy Q., where the youthful offender

indictment was rejected on the basis that there was no

penetration, but merely an indecent touching that the court

found insufficient "to create the threat of serious bodily

harm."    Quincy Q., supra at 863.




     4
       The court held, however, that the indictment should have
been dismissed on the unrelated ground of the Commonwealth
having withheld exculpatory evidence from the grand jury.
Washington W., supra at 211-213.
                                                                    11


    4.   Instruction to grand jury on "youthful offender"

indictment.   The requirements of G. L. c. 119, § 54, were set

forth in the indictment at issue here and the indictment was

read to the grand jury by the prosecutor, including a recitation

of the three requisite elements.    No additional instruction was

provided to the jury.    The juvenile argues that there is no

reason to believe that the grand jurors understood what they

were expected to decide in hearing the indictment alone.

    "Generally speaking, the Commonwealth is not required to

provide legal instructions on the elements of an offense for

which it seeks an indictment, out of a concern that such a

requirement 'would add delay and complexity without serving any

significant purpose.'"    Commonwealth v. Rex, 469 Mass. 36, 41

n.10 (2014), quoting from Commonwealth v. Noble, 429 Mass. 44,

48 (1999).    While decisional law has recognized two limited

exceptions to this general rule, neither is applicable here.

See Noble, supra (where grand jury requests legal instruction,

"prosecutor should have provided the appropriate information");

Commonwealth v. Walczak, 463 Mass. 808, 810 (2012) (where there

is substantial evidence of mitigating circumstances or defenses

in murder case where defendant is juvenile, grand jury must be

instructed on elements of murder and mitigating circumstances

and defenses).   More was not required in this case where the

grand jury had before them the indictment, which the prosecutor
                                                               12


had read out loud, and which set forth in plain language the

elements of the youthful offender statute.

                                   Order allowing motion to
                                     dismiss vacated.
