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SJC-12152

                N.M., a juvenile   vs.   COMMONWEALTH.



         Suffolk.      March 7, 2017. - October 10, 2017.

 Present:   Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.1


Youthful Offender Act. Practice, Criminal, Indictment,
     Interlocutory appeal. Rape.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 15, 2016.

     The case was considered by Botsford, J.


     Harry C. Mezer (Joseph J. Machera also present) for the
juvenile.
     Ronald E. DeRosa, Assistant District Attorney, for the
Commonwealth.
     Robert E. McDonnell, Vanessa M. Brown, & Joshua
Silverstein, for Youth Advocacy Division of the Committee for
Public Counsel Services, amicus curiae, submitted a brief.


     BUDD, J.   Here we consider whether a juvenile, who has been

indicted as a youthful offender, is entitled as of right to




     1 Justice Hines participated in the deliberation on this
case prior to her retirement.
                                                                   2


interlocutory review of a denial of a motion to dismiss that

indictment.   We also consider whether the youthful offender

indictment in this case was sufficiently supported by probable

cause.   We conclude that a juvenile is not entitled to G. L.

c. 211, § 3, interlocutory review as a matter of right in these

circumstances.     Nevertheless, we exercise our discretion to

reach the merits of the petition and conclude that the youthful

offender portion of the indictment was not sufficiently

supported by probable cause because the charged conduct did not

involve the infliction or threat of serious bodily harm.2

     Background.     The following facts are taken from the

testimony and exhibits presented to the grand jury.     In

December, 2014, or January, 2015, the complainant disclosed to

her mother that her female cousin, the juvenile, had been

sexually touching her for the last few years, starting when the

complainant was age five or six and the juvenile was age

fourteen or fifteen.     The girls attended weekly dance classes

together and afterward would spend time in the juvenile's

bedroom napping or watching movies, away from adult supervision.

The complainant told her mother that in this setting the

juvenile had "kissed" her on her breasts, "touched" and




     2 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services.
                                                                    3


"inserted [a] finger" in her vagina, and "instructed" her to

touch the juvenile's vagina.    The complainant's mother reported

the sexual activity to police in May, 2015.

     Investigators conducted a sexual abuse intervention network

interview,3 during which time the complainant shared similar

descriptions of the activities.4   The complainant reported that

the juvenile would sometimes discuss her sex life with the

complainant and would "explain what she was doing" to the

complainant when she touched the complainant.    Sometimes the

sexual touching "kind of hurt" because the complainant "was

littler than [the juvenile]."   Sometimes the complainant "did

want to do it," but other times she (in her mind) did not but

nevertheless "felt like [she] had to."    In response to a

question from a member of the grand jury, a detective testified

that the juvenile had made no threats to the complainant, and

that the juvenile and the complainant "care[d] a lot" about each


     3 The sexual abuse intervention network (SAIN) was
established to avoid multiple interviews of children who may
have suffered abuse. A SAIN interview team is generally made up
of members of several different agencies, one or more of whom
interview the child. See Commonwealth v. Howard, 446 Mass. 563,
565 n.1 (2006).

     4 The Commonwealth includes additional arguments based on
academic studies that were not before the single justice. We
decline to consider these materials or the arguments based
thereon. G. L. c. 211, § 3. See, e.g., Tran v. Zoning Bd. of
Appeals of Provincetown, 439 Mass. 1005, 1006 n.4, cert. denied,
540 U.S. 1008 (2003), citing Milton v. Boston, 427 Mass. 1016,
1017 (1998).
                                                                     4


other.   The juvenile told the complainant to tell her to stop

the touching if it hurt.

     A grand jury returned a youthful offender indictment

against the juvenile, charging her with rape of a child.5    See

G. L. c. 119, § 54; G. L. c. 265, § 23.    The juvenile moved to

dismiss the indictment, citing insufficient evidence to

establish probable cause to believe that the alleged conduct

involved the infliction or threat of serious bodily harm.     After

the denial of that motion, she petitioned for review by a single

justice of this court pursuant to G. L. c. 211, § 3.    The single

justice denied the petition, and the juvenile appealed.

     Discussion.   1.   Interlocutory review.   In general, "there

is no right to interlocutory review of the denial of a motion to

dismiss pursuant to G. L. c. 211, § 3."    Flood v. Commonwealth,

465 Mass. 1015, 1016 (2013).   The court's extraordinary power of

superintendence under G. L. c. 211, § 3, "will not ordinarily be

exercised to review interlocutory rulings in criminal cases,

since the rights of criminal defendants are generally fully


     5 The seeking of a youthful offender indictment
differentiates this case from one in which the Commonwealth
files a complaint for delinquency, the adjudication of which is
not a criminal proceeding. G. L. c. 119, §§ 53, 74. "A
'delinquent child' is subject to essentially rehabilitative
penalties and remedies, while a 'youthful offender' is subject
to penalties ranging from placement in a [Department of Youth
Services] facility to adult sentences in the State prison."
Commonwealth v. Mogelinski, 466 Mass. 627, 641 (2013), citing
Commonwealth v. Connor C., 432 Mass. 635, 645 (2000).
                                                                     5


protected through the regular appellate process."    Costarelli v.

Commonwealth, 374 Mass. 677, 679 (1978).    See Jackson v.

Commonwealth, 437 Mass. 1008, 1009 (2002); Ventresco v.

Commonwealth, 409 Mass. 82, 83-84 (1991).    Where truly

extraordinary circumstances are present, however, a defendant

may obtain review by "demonstrat[ing] both a substantial claim

of violation of [her] substantive rights and irremediable error,

such that [she] cannot be placed in statu quo in the regular

course of appeal."   Morrissette v. Commonwealth, 380 Mass. 197,

198 (1980).   "In such a case, [a] single justice may decide the

issues presented, report the matter to the full court, . . . or

authorize an interlocutory appeal to be taken to the Appeals

Court for a decision on the merits" (citation omitted).

Forlizzi v. Commonwealth, 471 Mass. 1011, 1012 (2015).

      Here, the juvenile claims a right to interlocutory review

of the denial of her motion to dismiss under G. L. c. 211, § 3,

because, she argues, if the Commonwealth proceeds against her as

a youthful offender, she will lose the protections afforded by

juvenile proceedings.   These include privacy and confidentiality

considerations, such as having the record and proceedings

shielded from public access.   See, e.g., G. L. c. 119, §§ 60A,

65.   See also Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212-

213 & n.8 (1997).    Loss of the rights afforded by the protective

juvenile cloak, she argues, cannot be remedied in the ordinary
                                                                    6


appellate process because, once her identity is disclosed, there

would be no way to regain her privacy; if she is convicted and

sentenced as an adult, she would be sent to an adult prison; and

the ability to discipline her as a child would be lost.     See

Felix F. v. Commonwealth, 471 Mass. 513, 514 n.2 (2015).

    We acknowledge that the ordinary appellate process will not

restore the protective nature of juvenile proceedings if it is

later determined that the juvenile has been erroneously tried as

a youthful offender.   Nonetheless, her claims are not akin to a

"right not to be tried," a right we have protected by

recognizing a very limited exception to the general rule against

interlocutory appeal for a petition for relief from the denial

of a motion to dismiss on double jeopardy grounds.    See

Forlizzi, 471 Mass. at 1013.   "In that circumstance, because the

double jeopardy right is a right not to be tried, we have held

that 'appellate review of [the denial of the motion to dismiss]

after trial and conviction would not provide adequate relief if

the defendant were to prevail . . . .'"    Flood v. Commonwealth,

465 Mass. 1015, 1016 (2013), quoting McGuinness v. Commonwealth,

423 Mass. 1003, 1004 (1996).   See also Gangi v. Commonwealth,

462 Mass. 158, 160 n.2 (2012) (right not to be tried on sexually

dangerous person petition).    Otherwise, we have "consistently

rejected attempts to obtain interlocutory review as a matter of

right under G. L. c. 211, § 3, of denials of motions to dismiss
                                                                     7


on other bases that defendants have attempted to analogize to

double jeopardy claims."    Soucy v. Commonwealth, 470 Mass. 1025,

1026 (2015), citing Grand-Pierre v. Commonwealth, 461 Mass.

1003, 1004 (2011) (challenge to constitutionality of statute

under which defendant was charged), Garden v. Commonwealth, 460

Mass. 1018, 1019 (2011) (statute of limitations claim),

Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 (2009)

(jurisdictional claim), Bateman v. Commonwealth, 449 Mass. 1024,

1024-1025 (2007) (challenge to sufficiency of evidence before

grand jury), Cousin v. Commonwealth, 442 Mass. 1046, 1046 (2004)

(speedy trial claim), King v. Commonwealth, 442 Mass. 1043, 1044

(2004) (claim of preindictment delay), and Jackson, 437 Mass. at

1009 (due process challenge to prosecution).    See Brea v.

Commonwealth, 473 Mass. 1012, 1012-1013 (2015) (prearraignment

denial of motion to dismiss).    The juvenile's claims in this

case involve a claimed right to be tried in a different forum,

not the right not to be tried at all, and the limited exception

does not apply.   See Watkins v. Commonwealth, 469 Mass. 1006,

1006 (2014).

    Where we do not recognize a right to interlocutory review,

even the absence of an adequate alternative remedy, as the

juvenile claims here, does not by itself make review under G. L.

c. 211, § 3, automatic.    See, e.g., Care & Protection of Zita,

455 Mass. 272, 278 (2009); Commonwealth v. Cook, 380 Mass. 314,
                                                                      8


319 (1980).   It remains incumbent on a juvenile in these

circumstances to demonstrate that his or her claims are suitable

for consideration under G. L. c. 211, § 3.     Although, as it

happens, a single justice exercised his discretion in an earlier

case to review the merits of the denial of a motion to dismiss a

juvenile's indictment as a youthful offender, see Felix F., 471

Mass. at 513-514, his decision to do so in that case "does not

compel us to decide that the single justice should have done so

in this case, or must do so in every instance."     Esteves v.

Commonwealth, 434 Mass. 1003, 1004 (2001).    See Watkins, 469

Mass. at 1006 (decision to transfer proceedings from Juvenile

Court to Superior Court, pursuant to G. L. c. 119, § 74, may be

reviewed on direct appeal).     In this case, we are satisfied that

the single justice neither erred nor abused her discretion in

denying interlocutory review.    The court's power of

superintendence is exercised sparingly, and the juvenile did not

demonstrate that any extraordinary circumstance compelled the

single justice to accord review.

    The question whether a juvenile has a right to

interlocutory review under G. L. c. 211, § 3, of the denial of a

motion to dismiss a youthful offender indictment was not settled

at the time we issued our order under S.J.C. Rule 2:21, as

amended, 434 Mass. 1301 (2001), allowing this appeal to proceed.

For that reason we directed the parties to brief both that
                                                                      9


threshold procedural issue and the substantive merits of the

judge's underlying ruling on the motion to dismiss.     Although we

now have concluded that there is no right to review as a matter

of law, and we therefore would not ordinarily consider the

merits of the underlying order where the single justice did not

exercise his or her discretion to allow interlocutory review,

see Ventresco, 409 Mass. at 83-84, we exercise our discretion to

reach the merits in this case.

    2.   Sufficiency of the evidence.   The juvenile argues that

the grand jury did not hear sufficient evidence to support her

indictment as a youthful offender under G. L. c. 119, § 54.     See

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).    We

consider evidence heard by the grand jury in the light most

favorable to the Commonwealth.   Commonwealth v. Moran, 453 Mass.

880, 885 (2009).

    The Commonwealth may pursue a criminal charge against a

juvenile by indictment only where

    "[the] person is alleged to have committed an offense . . .
    while between the ages of fourteen and [eighteen] which, if
    [she] were an adult, would be punishable by imprisonment in
    the [S]tate prison, and the person has previously been
    committed to the [D]epartment of [Y]outh [S]ervices, or the
    offense involves the infliction or threat of serious bodily
    harm."

G. L. c. 119, § 54.   Here the prerequisites concerning the

juvenile's age and the nature of the offense are met.     As the

juvenile has not "previously been committed to the [D]epartment
                                                                   10


of [Y]outh [S]ervices," the issue remaining is whether "the

offense involves the infliction or threat of serious bodily

harm."

     There is no requirement that the infliction or threat of

serious bodily harm be an element of the crime itself; however,

where a prosecutor seeks a youthful offender indictment relying

on the serious bodily harm component of § 54, the conduct

constituting the offense must involve the infliction or threat

of serious bodily harm.   Commonwealth v. Quincy Q., 434 Mass.

859, 863 (2001), citing Commonwealth v. Clint C., 430 Mass. 219,

225 (1999).   Here, the Commonwealth argues that the evidence

presented was sufficient for the grand jury to find probable

cause that the juvenile subjected the complainant to a threat of

serious bodily harm.6   We disagree.

     The youthful offender act does not define the phrase

"threat of serious bodily harm."   See G. L. c. 119, §§ 52, 54.

See also Clint C., 430 Mass. at 225.   Generally, this element is

satisfied when the juvenile defendant makes a communication or

declaration, explicit or implicit, of an actual threat of

physical injury.   Felix F., 471 Mass. at 516.   In the specific

context of child rape, a "juvenile's conduct must be considered




     6 The Commonwealth is not proceeding on the theory that
probable cause existed to establish actual infliction of serious
bodily harm to the victim.
                                                                    11


in relation to the effect on the victim."   Id. at 517.    "[T]he

act of penetrating a child, without more, [does not] satisf[y]

the threat of serious bodily harm component . . . ."    Id. at

517-518, citing Commonwealth v. Washington W., 462 Mass. 204,

210 & n.4 (2012).

    The inquiry is fact-intensive.    In Clint C., 430 Mass. at

226, we said that the juvenile's position of authority over the

victim as her babysitter, the age difference between the teenage

juvenile and the six year old victim, and the invasive nature of

coerced fellatio were together sufficient to support a youthful

offender indictment.   In Washington W., 462 Mass. at 210, we

upheld a youthful offender indictment because, in that case,

"the [juvenile's] act of physically pushing [the victim] to the

ground to be penetrated carries with it the implied threat of

bodily harm if the [victim] were to resist."   In contrast, in

Quincy Q., 434 Mass. at 861, 863, we dismissed a youthful

offender indictment because the teenage juvenile's conduct of

touching the toddler victim, to whom he was ostensibly providing

day care, over ten different occasions on her vagina and

buttocks was not accompanied by any "evidence that the defendant

overtly threatened [the complainant] or that serious bodily

injuries were actually inflicted."

    In this case, a grand juror asked if the juvenile

explicitly threatened the complainant; the detective responded
                                                                  12


that the juvenile did not and stated further that the juvenile

and complainant "care[d] a lot" about one another.     The

Commonwealth argues that, by digitally penetrating a complainant

who is very young, among other "aggravating" factors, the

juvenile "implicitly communicated an actual threat of physical

injury."   We have held otherwise.   See Felix F., 471 Mass. at

518-519, citing Commonwealth v. Sherry, 386 Mass. 682, 694, 696

(1982), and Commonwealth v. Chou, 433 Mass. 229, 234 (2001)

(implied threat found only where victim's failure to resist

reasonably was caused by fear and apprehension).

     Apart from the sexual conduct itself, the juvenile did not

employ any additional violence or make any threats toward the

complainant and specifically told the complainant to tell her to

stop if it hurt.     Contrast Washington W., 462 Mass. 208, 210

(juvenile accomplished anal intercourse by physically forcing

victim to ground).    That the complainant sometimes "did not want

to do it" but nevertheless did "do it" is, in context, not the

consequence of a fear that the juvenile would otherwise inflict

serious bodily harm on her.    Given the evidence of the nature of

the girls' relationship, the complainant was compliant because

the juvenile was someone about whom the complainant "care[d] a

lot."7   The grand jury heard nothing to suggest that the


     7 For the same reason, the fact that the complainant lied to
her aunt on the juvenile's behalf about an unrelated incident
                                                                  13


complainant feared for her safety.   Contrast id. at 208-209

(victim too "afraid" to tell parents about repeated aggressive

sexual encounters where juvenile "instructed him not to tell

anyone").

    To be sure, the charged crime of rape of a child is a

serious offense.   However, the juvenile's alleged conduct does

not meet the threshold above which the youthful offender statute

allows the case to be heard as a criminal matter rather than as

a complaint for delinquency.

    Conclusion.    We remand the case to the county court for

entry of a judgment allowing the petition for relief under G. L.

c. 211, § 3, and reversing the Juvenile Court judge's order

denying the motion to dismiss.

                                     So ordered.




does not constitute evidence that the complainant perceived a
threat of serious bodily harm from the juvenile.
