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18-P-77                                                 Appeals Court

                     COMMONWEALTH   vs.   DAVID MELO.


                              No. 18-P-77.

          Middlesex.        October 4, 2018. - May 8, 2019.

          Present:    Green, C.J., Hanlon, & Maldonado, JJ.


Indecent Assault and Battery. Assault and Battery. Open and
     Gross Lewdness and Lascivious Behavior. Practice,
     Criminal, Required finding, New trial, Assistance of
     counsel, Instructions to jury, Lesser included offense.


     Complaints received and sworn to in the Ayer Division of
the District Court Department on March 18 and 29, 2016.

     The cases were tried before Mark A. Sullivan, J., and a
motion for a new trial, filed on June 2, 2017, was heard by him.


     Andrew P. Power for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.


    HANLON, J.   After a jury trial, the defendant was found

guilty of indecent assault and battery on a person age fourteen

years or older, disorderly conduct, and open and gross lewdness.

The judge sentenced the defendant on the indecent assault and

battery and the open and gross lewdness charges and placed the
                                                                    2


disorderly conduct conviction on file with the defendant's

consent.   The defendant appeals from the judgments and from the

orders denying his motions for a new trial and for findings of

fact on the denial of the new trial motion.    He argues that the

evidence was insufficient to prove open and gross lewdness; his

counsel was ineffective for failing to request that the jury be

instructed on the lesser included offense of indecent assault

and battery; the judge erred when he failed to make findings of

fact on the defendant's motion for a new trial; and the judge's

instruction to the jury on the charge of indecent assault and

battery was "deficient."    We affirm.

    Background.    In March 2016, the victim had worked as a

server at Dippin' Donuts for approximately two years.    Dippin'

Donuts was located in a gasoline station in Littleton, and the

defendant was a frequent customer, usually appearing at the

coffee shop between 7 and 8 A.M. every weekday morning.    The

victim did not know the defendant's name, and her interactions

with him had been confined to exchanging pleasantries and taking

his orders.

    At approximately 7:30 A.M. on March 18, 2016, the victim

took a break and went outside to smoke a cigarette and drink her

coffee.    The defendant drove into a handicap parking spot near

where she was standing, got out of his car, and approached her,

saying, "Good morning."    She responded, "Good morning," and he
                                                                       3


said, "Give me a hug, give me a kiss, just a little one," and

extended his arms.     She said, "No," and pushed him away from

her.     The defendant repeated his request, and when he received

the same response, he reached around and squeezed her buttocks.

The victim told him to get his donut and leave, and she went

back into the coffee shop to finish her shift.     The defendant

followed her into the store and told her he wanted to buy

something for her.     Again, the victim told the defendant to

leave.    Still insisting that he wanted to buy her something, the

defendant went to the manager and asked what kind of cigarettes

the victim smoked; she told the manager that she did not want

anything, but the defendant bought the cigarettes anyway.        The

victim took them back to the manager.

       The defendant left the store and moved his car to another

location in the parking lot.     The victim then told her coworkers

that the defendant had assaulted her outside the store.     Some

minutes later, the defendant approached the window of the store,

pulled his pants down around his ankles, and danced around the

parking lot; at least at one point, the victim saw him also pull

down his underwear, leaving his buttocks fully exposed.     Her

coworker saw the defendant expose his buttocks "multiple times."

The defendant continued to pull his pants up and down for

several minutes.     The victim described her reaction as "very,

very distraught."     Her coworker described herself as "shocked";
                                                                      4


it was she who called the police.     The victim testified, "I was

like frantic.   I didn't even know what was going on.    I was

scared.   I didn't know what he was going to do."    In addition,

there were other customers both inside the gasoline station and

in the parking lot.

    Littleton Police Officer Patrick O'Donoghue was the first

to arrive on the scene.     O'Donoghue asked the defendant if he

had exposed himself, and the defendant replied that he "had just

taken off his . . . outer layer sweatshirt off of him."       After

speaking with the victim and her coworker, in addition to the

defendant, O'Donoghue placed the defendant under arrest.

    Discussion.   1.     Sufficiency of the evidence.   The

defendant argues first that the judge erred in denying his

motion for a required finding of not guilty on the open and

gross lewdness charge.     We review 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 of the crime beyond a reasonable doubt'

(emphasis omitted).    [Commonwealth v.] Latimore, 378 Mass.

[671,] 677 [(1979)].     'The inferences drawn from [the] evidence

need only be reasonable and possible, not necessary or

inescapable.'   Commonwealth v. Morgan, 449 Mass. 343, 349 (2007)

(quotation omitted)."     Commonwealth v. Taranovsky, 93 Mass. App.

Ct. 399, 402 (2018).
                                                                   5


    In order to prove the defendant guilty of open and gross

lewdness, the Commonwealth must prove "that the defendant (1)

exposed genitals, breasts, or buttocks; (2) intentionally; (3)

openly or with reckless disregard of public exposure; (4) in a

manner so 'as to produce alarm or shock'; and (5) thereby

actually shocking or alarming one or more persons."

Commonwealth v. Maguire, 476 Mass. 156, 158 (2017), quoting

Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008).

See G. L. c. 272, § 16.   In addition, "[i]n Maguire, the court

announced that one of the five elements of the offense (element

four) requires the Commonwealth to prove an 'objective

component,' namely, that the defendant's conduct not only caused

one or more persons to be shocked or alarmed, but in addition,

'that "shock" or "alarm" was an objectively reasonable reaction

in the circumstances of the conduct.'"   Taranovsky, 93 Mass.

App. Ct. at 400, quoting Maguire, supra at 161.

    The defendant concedes that "four of the five elements of

the offense were established."   However, he argues that the

Commonwealth failed to prove the fourth element.   In his view,

the "exposure of a dancing person's buttocks would not seriously

shock or alarm an ordinary adult looking on from a considerable

distance."   We conclude that the defendant's behavior satisfies

the elements of the crime.   See Maguire, 476 Mass. at 158.
                                                                   6


     As we noted in Taranovsky, 93 Mass. App. Ct. at 402,

"[w]hether a person's reaction is reasonable based on the

circumstances is typically a question to be determined by the

fact finder."1   In the case before us, the defendant deliberately

and repeatedly exposed his buttocks in a public place.     At least

one of the onlookers, the victim, whom the defendant earlier had

assaulted sexually, was distraught and frightened; her shock or

alarm is properly assessed in the context of the defendant's

immediately preceding sexual assault against her.    Another

onlooker was sufficiently shocked that she immediately called

the police.    In the circumstances, we are satisfied that the

evidence was sufficient to permit a reasonable jury to conclude

that the onlookers' shock and alarm here was objectively

reasonable.2


     1 In Taranovsky, 93 Mass. App. Ct. at 404, the jury were not
instructed explicitly that the shock or alarm must be
objectively reasonable. Commenting that we considered the
question to be close, on the evidence in that case, we remanded
the matter for a new trial before a properly instructed jury.
Id. at 402. By contrast, for the reasons that follow, the
present case does not raise a similar concern regarding the
objective reasonableness of the shock or alarm of the victim and
other onlookers.

     2 We note that the defendant raised no claim of error in the
instructions to the jury on this issue, either at trial or in
this appeal. We also note that the judge's instructions advised
the jury that "[m]ere nervousness and offense has never been
held sufficient to warrant a finding that a viewer was in fact
alarmed or shocked." On the charge of disorderly conduct, the
judge also told the jury that the Commonwealth must prove beyond
a reasonable doubt that "the defendant's actions were reasonably
                                                                   7


    We also decline the defendant's invitation to "clarify" the

notion that "exposure of the buttocks in an area where adults --

not children -- are present" is not a violation of the statute.

See Commonwealth v. Quinn, 439 Mass. 492, 495 (2003) ("a

defendant may be convicted under G. L. c. 272, § 16, for

exposing his buttocks provided, of course, that the other

elements of that crime are proved beyond a reasonable doubt").

    The defendant also argues that the fact that he was

"dancing" somehow immunizes him from the consequences of his

behavior or clothes it with the protections offered by the First

Amendment to the United States Constitution.   The argument is

foreclosed by Commonwealth v. Ora, 451 Mass. 125, 130 (2008),

where the court held that "[§] 16 [of G. L. c. 272] is within

the Commonwealth's power to regulate conduct; it furthers the

important State interest in preventing fright or intimidation

from intentional lewd and lascivious conduct imposed on

unsuspecting or unwilling persons, particularly children. . . .

This governmental interest is unrelated to the suppression of

free expression."



likely to affect the public." Although the instructions did not
explicitly advise the jury that the shock or alarm caused by the
open and gross lewdness must be objectively reasonable (because
the case was tried before that requirement was imposed in
Maguire, 476 Mass. at 161), we are satisfied that the
instructions as a whole were adequate, given the facts of this
case. Certainly there was no substantial risk of a miscarriage
of justice.
                                                                     8


    2.   Ineffective assistance of counsel.     The defendant also

argues that his motion for a new trial should have been allowed

because his trial counsel was ineffective for failing to request

a jury instruction on assault and battery as a lesser included

offense of indecent assault and battery.    In order to prevail on

this claim, there must have "been serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer" that "likely deprived the defendant of

an otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).     "We only

disturb the denial of a motion for a new trial where there has

been a 'significant error of law or other abuse of discretion.'"

Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019), quoting

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).     "Particular

deference is to be paid to the rulings of a motion judge who

served as the trial judge in the same case."     Commonwealth v.

Scott, 467 Mass. 336, 344 (2014).

    The victim testified at trial that the defendant grabbed

and squeezed her buttocks when he approached her on her

cigarette break.   Defense counsel's opening statement revealed

his over-all theory of the case, which was that the defendant

did not squeeze the victim's buttocks.     Counsel argued to the

jury that, once the victim had pushed the defendant away, he did
                                                                     9


not touch her.   He then continued to emphasize facts that

supported that theory:     there was no surveillance video to

corroborate the victim's testimony, and she did not immediately

report the assault.

     Indecent assault and battery on a person age fourteen or

over is the "intentional, unprivileged, and indecent touching of

the victim."   Commonwealth v. Kennedy, 478 Mass. 804, 810

(2018), quoting Commonwealth v. Marzilli, 457 Mass. 64, 67

(2010), overruled on other grounds by Commonwealth v. Brie, 473

Mass. 754 (2016).     "It has been held 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), quoting Commonwealth

v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982).     The element of

"indecency" is what differentiates assault and battery from

indecent assault and battery, and here, the only relevant

evidence came from the victim.     As a result, there was no

evidence that the defendant touched the victim but not on the

buttocks.3   Nor would it have been appropriate to instruct the


     3 Although trial counsel insisted at the hearing on the
motion for a new trial that his failure to request the
instruction was an oversight, he also conceded: "[T]he language
of the jury instruction . . . gives an example of an indecent
assault and battery, that it involves touching portions of the
anatomy commonly thought private, such as a person's buttocks.
                                                                    10


jurors that, even if they credited the victim's testimony that

the defendant had touched her on the buttocks, they were free to

conclude that the touching was not indecent, even though she did

not consent and found it offensive.   Such an instruction would

have invited the jurors to ignore the law.   For that reason,

there was no basis for an instruction on assault and battery.

See Commonwealth v. Alcequiecz, 465 Mass. 557, 566 (2013),

quoting Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

("trial counsel was not ineffective for failing to make an

argument that had a 'minimal chance of success'").

    3.     Findings of fact on motion for new trial.    The

defendant also argues that the trial judge erred in denying the

defendant's motion for findings of fact after the evidentiary

hearing on the issue whether trial counsel was ineffective for

failing to request an instruction on assault and battery as a

lesser included offense of indecent assault and battery.       In

denying the motion for new trial, the judge wrote that "[a]fter

hearing and a full consideration of the arguments and written

submissions of counsel, the Court denies the motion for the

reasons set forth by the Commonwealth at the hearing on the

motion."   The motion judge was also the trial judge.    See




So when she testified that the defendant had touched her on her
buttocks, I felt that if the jury believed her testimony . . . I
believed he would be convicted."
                                                                    11


Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009) ("We defer to

a judge's credibility assessments, and we extend special

deference to the action of a motion judge who also was the trial

judge").

    "The judge must make findings of fact necessary to resolve

the defendant's allegations of error of law in a motion for a

new trial.   See Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001).   A judge's failure to make findings required

by rule 30 (b) is 'not fatal . . . where the ultimate conclusion

is clearly evident from the record,' Commonwealth v. Lanoue, 392

Mass. 583, 586 n.2 (1984), or where we are satisfied that 'on

review of the whole case manifest injustice would [not] result,'

Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984)."

Commonwealth v. Torres, 469 Mass. 398, 403 (2014).     Here, we

are, in fact, satisfied that trial counsel has not been shown to

have been ineffective, for the reasons explained supra.       We also

conclude that there was no error and certainly no substantial

risk of a miscarriage of justice in the judge's failure to make

written findings.    Cf. Torres, supra at 409 (substantial

likelihood standard).

    4.     Deficient jury instructions.   Last, we consider the

defendant's challenge to the judge's instruction to the jury on

the charge of indecent assault and battery.    There was no

objection at trial; indeed, as the defendant concedes, the judge
                                                                    12


read the instruction requested by defense counsel, which

essentially tracked Instruction 6.500 of the Model Jury

Instructions for Use in the District Court (2009).4   We therefore

review to see if there was error and, if so, whether the error

resulted in a substantial risk of miscarriage of justice.

Commonwealth v. Gichel, 48 Mass. App. Ct. 206, 208 (1999).     We

conclude there was no error.

     The defendant argues that this instruction "failed to

convey the important moral underpinnings of the crime, and

provided a hypothetical example that mirrored the accusation

against the defendant."    In particular, the defendant contends


     4   The judge instructed the jury as follows:

          "To prove the defendant guilty of [indecent assault
     and battery on a person age fourteen or over], the
     Commonwealth must prove four things beyond a reasonable
     doubt.

          "First, that the alleged victim was at least 14 years
     of age at the time of the alleged offense. Second, that
     the defendant committed an assault and battery on the
     alleged victim. Assault and battery is essentially the
     intentional touching of another person without legal
     justification or excuse. An unwanted touching. Third, the
     Commonwealth must prove beyond a reasonable doubt that the
     assault and battery was indecent as the word is commonly
     understood, measured by common understanding and practices.

          "An indecent act is one that is fundamentally
     offensive to contemporary standards of decency. An assault
     and battery may be indecent if it involves touching
     portions of the anatomy commonly thought private, such as a
     person's genital area or buttocks or the breasts of a
     female. And fourth, the Commonwealth must prove that the
     alleged victim did not consent."
                                                                      13


that articulating specific body parts in the jury instruction

could have been heard by the jury as a "preapproved selection of

private parts," thus removing from the jury the responsibility

to decide whether the touching violated contemporary moral

values.     For support, he relies on the definition of "indecent"

in Webster's Third New International Dictionary 1147 (2002), and

Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314-315 (1997).

It is difficult to understand how either of these assists him.

Webster's, of course, is not binding precedent, and in Lavigne,

where the issue was whether the defendant's touching of the

victim's inner thigh was indecent, we cited approvingly an

earlier, but similar, version of the model instruction,

including specifically the following language:     "an unjustified

touching of another person is indecent 'if it involves touching

portions of the anatomy commonly thought private, such as a

person's genital area or buttocks, or . . . breasts.'"      Lavigne,

supra at 315, quoting Model Jury Instructions for Use in the

District Court, Instruction 5.403 (1995).

    The defendant's argument that there were no sexual

overtones to the touching is simply belied by the evidence.      The

defendant approached the victim and twice asked for a hug or a

kiss.     When she refused, he squeezed her buttocks.   Thereafter,

he did not, as he asserts, "[leave] the premises and [drive]

away."     He insisted on buying her something, and after that, he
                                                                 14


did move his car, but he then pulled down his pants repeatedly

and danced around the parking lot exposing his naked buttocks.

We see no error in the judge's decision to read to the jurors

the model jury instruction requested by the defendant.

Certainly, there is no risk of a miscarriage of justice.

    Conclusion.   The judgments and the orders denying the

motions for a new trial and for findings of fact are affirmed.

                                   So ordered.
