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16-P-202                                             Appeals Court

                            A.P.   vs.   M.T.


                             No. 16-P-202.

           Essex.      January 6, 2017. - September 1, 2017.

            Present:   Kafker, C.J., Hanlon, & Agnes, JJ.1


Civil Harassment. Harassment Prevention. Evidence, Cross-
     examination, Identification. Identification.



     Complaint for protection from harassment filed in the Essex
County Division of the Juvenile Court Department on October 30,
2015.

    The case was heard by Mark Newman, J.


    Benjamin L. Falkner for the defendant.


    HANLON, J.      After a hearing, a Juvenile Court judge

extended a civil harassment order, pursuant to G. L. c. 258E,

against a juvenile (the defendant, M.T.) who, along with another

boy, was accused of committing an indecent assault and battery

    1
       Chief Justice Kafker participated in the deliberation on
this case and authored the concurring opinion while the Chief
Justice of this court, prior to his appointment as an Associate
Justice of the Supreme Judicial Court.
                                                                     2


on a four year old neighbor girl (the plaintiff, A.P.).       M.T.

now appeals the ex parte order and the extension, arguing that

(1) the evidence was insufficient to support the issuance of the

order; (2) the judge abused his discretion in limiting the

cross-examination of A.P.'s mother (mother); and (3) the

mother's in-court identification of M.T. and the other boy was

improper.     M.T. asks this court to vacate the order and expunge

all records or, in the alternative, to vacate the order and

remand for further proceedings.2    We affirm.

     Background.3    A.P. and M.T. and their families live on a

cul-de-sac.    Their properties border one another, and are

separated by a fence.     The other boy's property is in the same

cul-de-sac, but does not border A.P.'s property.    At the time of

the incident, A.P. was four years old and had developmental

delays related to speaking and expression.

     At the ex parte hearing, A.P.'s father (father) appeared

alone and testified that he was at work when he received a



     2
       The order was issued against both boys, but only M.T.
filed an appeal. The record does not reveal the age of either
boy. At oral argument, M.T.'s counsel informed us that his
client was eight years old.
     3
       The facts are drawn from testimony and evidence presented
at the ex parte hearing and the hearing after notice. The same
judge presided over both hearings and, at the outset of the
hearing after notice, counsel for M.T. and the other boy
indicated that they had reviewed the ex parte order and the
mother's affidavit.
                                                                    3


telephone call from the mother.4   The father summarized the

events as the mother had relayed them to him:

          "[A.P.] was in the backyard in our fenced-in yard
     playing. We have a swing set, jungle gym, and some
     toys. And my wife's Vietnamese. She's pretty
     protective, generally won't let the kids out of her
     sight for more than [ten] to [twenty] minutes, if
     that. So I don't know how long she was out there.

          "But my wife went to the back door and hollered
     [A.P.]'s name. And our jungle gym sort of blocks --
     there's a blind spot right behind the jungle gym. And
     [A.P.] came running from behind the jungle gym holding
     her underwear and no clothes. She was naked. And the
     two boys jumped the fence and just ran back to their
     homes."

Based on the father's testimony, the judge issued an ex parte

order and scheduled a hearing after notice.

     At the hearing after notice before the same judge, the

mother testified with an interpreter and was cross-examined; we

summarize her testimony.5   She explained that she knew the boys

because they had played with A.P. and also with a third boy who

had lived in her home; that boy had since returned to his home

in Vietnam.   On the day of the incident, she was painting a door

when she heard her daughter's voice.   "I heard her excitement

because she loves to play with [M.T.].   And then I looked . . .


     4
       The father's testimony essentially tracks the mother's
affidavit, filed at the time of the hearing on the ex parte
order.
     5
       The mother's direct testimony was brief, occupying perhaps
twelve pages of transcript, including arguments of counsel at
various points.
                                                                     4


out through the door, and I saw [M.T.] climbing the fence. . . .

So [A.P.] pushed the door open and the two boys came . . . into

the house."   The mother said that the boys had climbed the fence

before "just like in Vietnam, you know.    That's what kids do."

When M.T. asked about the third boy, she told the two boys that

he had gone back to Vietnam.

     The boys played in the house for a few minutes, and then

went outside.    A.P. asked to follow the boys and the mother

initially said no.    The mother stated that she was reluctant to

agree because the boys "play so rough and they make her cry."

However, A.P. cried and begged to go; eventually, the mother

allowed A.P. to follow the boys.    "So I told her put on your

shoes and your jacket and go outside because it's cold outside

and Mommy will join you right away."6

     The mother testified that, after agreeing to let A.P. go,

she did not "feel . . . good" about the situation and,

eventually, decided to go outside herself.    "[S]o I went and

washed my hands . . . [and] after I washed my hands, I didn't

even get out to the back door . . . and [A.P.] came running

inside.    She slammed the door and she said, 'Mom, help me, help

me.'"    A.P. was "holding onto her underwear, her panty" and

wearing nothing else.    "So I told her it's cold outside, why did

     6
       When A.P. went outside "she was completely dressed. She
had a dress on and I put on her shoes and her jacket. She knew
that it was cold."
                                                                     5


you take -- remove your jacket."    When the mother went outside

to determine what had happened, she saw the boys running away.

"As they were running, they turned back to look at us, and I

just felt funny about that."   A.P.'s clothes were piled outside

near her toys.   Inside, the mother inspected A.P. and saw "some

spot and stain" on her underwear.

    The mother telephoned the father and, when he told her that

the police were on their way, she took photographs of her

daughter.   The photographs were admitted in evidence at the

hearing, and we have seen them as well.    There is a photograph

of A.P. from earlier in the day when she went to school; in the

photograph, she is fully dressed in a pink dress, a white

sweater, and pink shoes, with her arms outstretched in a yard

with fallen leaves.    As the father testified, "And then later on

when the incident took place, she was still wearing that dress

but with another jacket."    Taken after the incident, three other

photographs show A.P. lying with her legs spread and wearing

only underpants.   She was smeared with mud on her bare feet, her

legs and knees, and on her underwear between her legs, in the

area of her bottom up into her crotch area.    The mother

testified that she tried to ask A.P. what had happened, but the

four year old would not say anything beyond "that person, that

person."    In addition, the father told the judge that a doctor's
                                                                      6


report included observations of fresh abrasions and bruising on

A.P.'s body.7

     The judge then asked the mother if she could identify the

two boys from that day.     That exchange, with the defendants'

objections, transpired as follows:

     Judge: "Okay. And you described seeing two boys that
     day? Do you --"

     Mother:     "That's right."

     Judge: "Do you see those two boys in the courtroom
     today?"

     Counsel for the other boy:     "Objection."

     Mother:     "One here, one here."

     Counsel for M.T.:     "Objection, Judge."

     Judge:     "Okay.   I'll note your -- "

     Mother: "[M.T.] was wearing an orange-color outfit,
     and I'm not sure what this -- his name. He was
     wearing something gray maybe, but I didn't pay much
     attention to what he was wearing. Because [M.T.]
     actually said hi."

     Counsel for M.T.: "Judge, I object.       That couldn't be
     a more suggestive identification."

     Judge: "Right. But, again, this is not a penal or a
     criminal hearing. It's a civil hearing."

     On cross-examination, M.T.'s attorney elicited the

following testimony from the mother:      (1) she never saw M.T. or


     7
       The father told the judge at the hearing after notice, "My
pediatrician called me as I was driving in saying they've got a
copy of the hospital report, but it was too late because I was
coming here. I'm going to go get that report when I leave."
                                                                     7


the other boy touch A.P. or remove her clothing; (2) it was

uncommon for A.P. to take off her own clothes and she only does

so when she takes a bath; "[e]ven then if you try to remove her

underwear she would cry"; (3) the mother's prior testimony about

A.P. playing "rough" referred to playing on the slide and

playing on the father's shoulders;8 (4) A.P. rarely comes in

dirty from playing outside and when she does she tells her

mother that she is dirty and asks her mother to change her

clothes.   After M.T.'s attorney cross-examined the mother for a

relatively brief period of time (approximately four pages of

transcript), the judge cut off the cross-examination, explaining

that "this is a very limited hearing" and that it was customary

to hear from both parties but not to have examinations.     M.T.'s

attorney objected to the limitation and also objected to the

admission of evidence that violated "the rules of evidence."

     The other boy's attorney continued the line of questioning

relating to whether A.P. had a history of getting dirty while

playing outside.   The judge then asked if there was any evidence

or testimony from the defendants, and both counsel responded in

the negative.   The judge heard final arguments and

     8
       On cross-examination, the mother clarified that, "playing
rough doesn't mean that she likes to . . . [take] off her
clothes. . . . She likes to play on the slide. So when I say
playing rough, meaning, like -- for example, when she plays with
Daddy, Daddy would put her on Daddy's shoulder, and then they
turn around like that. We don't play like that in Vietnam, and
that I meant rough."
                                                                    8


recommendations from both defendants' attorneys; each argued

that there was insufficient evidence to support an extension of

the order.

    At the end of the hearing, the judge described the evidence

as "circumstantial," but noted that he found the photographs

"compelling" and that he had made copies for the record.    He

also considered "the child's state of mind at the time and her

reaction to the circumstances and the fact that [the] mother

observed this."   He concluded there was "sufficient evidence to

issue a civil harassment order [for] indecent assault and

battery on a child under the age of [fourteen] where consent is

not a defense [and] the circumstantial evidence here is

sufficient to support it."

    Discussion.   We review harassment prevention orders under

G. L. c. 258E to determine "whether the judge could find, by a

preponderance of the evidence, together with all permissible

inferences," that the defendant had committed one or more of the

enumerated sex crimes or three or more specific acts of wilful

or malicious conduct.   Gassman v. Reason, 90 Mass. App. Ct. 1, 7

(2016).   See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 598-599

(2015).

    Harassment prevention orders under G. L. c. 258E were

"intended to protect victims who could not legally seek

protection under G. L. c. 209A," when the victims did not
                                                                    9


satisfy the relationship requirement for jurisdiction under

c. 209A.    Seney v. Morhy, 467 Mass. 58, 60 (2014), citing

O'Brien v. Borowski, 461 Mass. 415, 419 (2012).    As a result,

the language in c. 258E is "analogous to the language found in

c. 209A."   J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109 (2017).

For this reason, for the most part, both the Supreme Judicial

Court and this court have applied the case law relating to

c. 209A to cases arising under c. 258E.    See O'Brien, supra at

418-420 (noting distinctions between c. 209A and c. 258E);

Seney, supra at 62 (following case law related to c. 209A when

determining proper appellate procedure for c. 258E orders);

J.S.H., supra at 109-112 (applying c. 209A expungement standards

to c. 258E proceedings).   In addition, this court has cited the

Guidelines for Judicial Practice:    Abuse Prevention Proceedings

(guidelines), which apply to c. 209A orders, when analyzing

c. 258E orders.   See, e.g., F.A.P., supra at 601 n.14 ("[W]e see

no reason why the [guidelines] should not apply equally in

harassment order proceedings, absent some issue particular to

harassment orders").   Furthermore, the Massachusetts Guide to

Evidence applies the same evidentiary standards to c. 209A and

c. 258E orders.   See Mass. G. Evid. § 1106 (2017).

    The purpose of proceedings under c. 258E, like those under

c. 209A, is "protective, not penal," A.T. v. C.R., 88 Mass. App.

Ct. 532, 540 (2015), and in these cases, "the rules of evidence
                                                                    10


need not be followed, provided that there is fairness in what

evidence is admitted and relied on."    Frizado v. Frizado, 420

Mass. 592, 597-598 (1995).   In reviewing the issuance of the

c. 258E order in this case, we have in mind the mandate that

abuse prevention proceedings should be as "expeditious and

informal as reasonably possible."   Zullo v. Goguen, 423 Mass.

679, 681 (1996), citing Frizado, supra at 598.

    We also note that, although M.T.'s age, eight years old,

certainly is concerning, the Legislature explicitly provided

that the "juvenile court department shall have exclusive

jurisdiction" over harassment prevention order proceedings when

a defendant is under the age of eighteen.   G. L. c. 258E, § 2,

as amended by St. 2014, c. 284, § 74.   "As a result, it is fair

to conclude that, when the Legislature deliberately entrusted to

the trial court department most experienced with juveniles

exclusive authority to issue harassment orders against them, it

had young people's limitations and abilities particularly in

mind."   A.T., 88 Mass. App. Ct. at 539.   Compare Commonwealth v.

Ogden O., 448 Mass. 798, 803 (2007) ("[T]he Commonwealth has

developed a system, set forth by legislative enactment in G. L.

c. 119, §§ 52-84, for dealing with delinquent children . . . in

a manner that affords them greater protections than those

afforded adults in the traditional criminal justice system.       See

Commonwealth v. Walter R., [414 Mass. 714, 718 (1993)].     See
                                                                      11


also R.L. Ireland, Juvenile Law § 1.3 [2d ed. 2006] [discussing

philosophy of delinquency proceedings].       This system has

rendered a defense of incapacity based on youth, to the extent

that it ever may have existed in the Commonwealth, inapplicable

to current juvenile proceedings").       In a footnote, the Ogden O.

court continued, supra at 803 n.4, "A '[d]elinquent child' is 'a

child between seven and seventeen who violates any city

ordinance or town by-law or who commits any offence against a

law of the commonwealth.'       G. L. c. 119, § 52."

       General Laws c. 258E provides a number of definitions of

"harassment."9      The second definition "applies to situations

where, as here, a defendant allegedly committed one or more acts

of sexual misconduct.      G. L. c. 258E, § 1 (definition of

'harassment,' subsection [ii])."       F.A.P., 87 Mass. App. Ct. at

599.       "Under this definition, . . . a plaintiff can prove that a

defendant committed any of [ten] specifically enumerated sex




       9
       The first definition requires at least three acts of
"willful and malicious conduct aimed at a specific person
committed with the intent to cause fear, intimidation, abuse or
damage to property," and that in fact causes fear, intimidation,
abuse, or damage to property. G. L. c. 258E, § 1, inserted by
St. 2010, c. 23. In addition, an act "that constitutes a
violation of section . . . 43 [stalking] or 43A [criminal
harassment] of chapter 265" meets the statute's definition of
"[h]arassment." Ibid. None of these other definitions is at
issue here.
                                                                    12


crimes, including -- as relevant here," indecent assault and

battery.10   Ibid.

     a.    Sufficiency of the evidence.   M.T. argues first that

the evidence was insufficient to prove, by a preponderance of

the evidence, that M.T., either alone or with the other boy,

committed an indecent assault and battery on A.P.11    See id. at

599-600.

          "This court . . . has stated: The test for indecent
     assault and battery . . . is an objective one that is
     bounded by contemporary moral values . . . . The measure
     of indecency is common understanding and practices.
     Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 300
     (1994), S.C., 420 Mass. 508 (1995), quoting from
     Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59
     (1982). A touching is indecent when, judged by the
     normative standard of societal mores, it is violative of
     social and behavioral expectations, Commonwealth v.
     Gallant, 373 Mass. 577, 580-581, 589 (1997), in a manner
     which [is] fundamentally offensive to contemporary moral
     values . . . [and] which the common sense of society would
     regard as immodest, immoral and improper. Commonwealth v.
     Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting from
     Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43 (1985).
     So defined, the term indecent affords a reasonable
     opportunity for a person of ordinary intelligence to know
     what is prohibited. Commonwealth v. Conefrey, 37 Mass.
     App. Ct. at 302, quoting from Commonwealth v. Jasmin, 396
     Mass. 653, 655 (1986)."



     10
       "Whoever commits an indecent assault and battery on a
child under the age of 14 shall be punished." G. L. c. 265,
§ 13B, as appearing in St. 2008, c. 205, § 1.
     11
       Proof beyond a   reasonable doubt that M.T. committed the
crime is left for any   delinquency proceedings. F.A.P., supra at
599. Furthermore, in    this form of harassment, "[p]roof that the
defendant intended to   instill fear, and in fact did so, would be
wholly unnecessary."    Ibid.
                                                                  13


Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 565-566 (2002),

quoting from Commonwealth v. Lavigne, 42 Mass. App. Ct. 313,

314-315 (1997) (quotations omitted).   Here, based on the

evidence presented, it was reasonable for the judge to conclude

the standard was met.

    As noted, the evidence the judge considered included the

mother's testimony, photographs of A.P. before and after the

incident, and the father's statement regarding the results of

the doctor's examination.   If the judge credited the mother's

testimony, and his findings and conclusion at the end of the

hearing indicate that he did, taking that testimony together

with reasonable inferences, the judge reasonably could have

concluded that it is more likely than not that M.T. committed an

indecent assault and battery against A.P. by removing her

clothing or forcing her to remove it herself.   Because she was

four years old, consent was not an issue.   See Commonwealth v.

Knap, 412 Mass. 712, 714-715 (1992).

    The mother testified that it was cold outside and that A.P.

was fully clothed when she went to play; A.P. was outside alone

with the boys; she never had removed her clothing while playing

outside; she ran into the house with nothing but underpants on,

holding onto them, and crying, "Mommy, help me."   When asked

what had happened, A.P. could only say, "[T]hat person."    She

had mud on the crotch of her underpants and smeared over her
                                                                   14


bare feet and legs; a doctor found evidence of fresh abrasions

and bruising.

    Our case law supports a conclusion that taking a child's

clothing off or forcing her to do so in these circumstances

constitutes an indecent assault and battery.   See Commonwealth

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

conviction of indecent assault and battery when defendant

"pulled up the victim's shirt, exposing her breasts, unbuttoned

her jeans and pulled them off, and removed her panties");

Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 74 (2007)

("[O]ur cases do not require that the defendant himself perform

the touching.    Thus in Commonwealth v. Nuby, 32 Mass. App. Ct.

360, 362 [1992], we held that a defendant who forced the victims

'to fondle their mother's breasts' was guilty of indecent

assault and battery upon two children under the age of fourteen

under G. L. c. 265, § 13B.    We also held adequate the judge's

instruction that the perpetrator need not himself perform the

indecent touching if he directs or commands the victim to touch

a third person in a manner that would be offensive.    Id. at 363-

364").

    In Commonwealth v. Portonova, 69 Mass. App. Ct. 905, 905

(2007), the basis for the indecent assault and battery charge

was a claim that the defendant had "direct[ed] the victim to rub

her vagina."    We rejected "[t]he defendant's argument that G. L.
                                                                   15


c. 265, § 13F [the statute proscribing indecent assault and

battery on a mentally retarded person], proscribes only those

forced offensive touchings in which the perpetrator directly

engages in the 'sexual contact' that causes the offensive

touching."   Ibid.   We noted that that argument "has been

rejected by our cases," citing Nuby, supra; Davidson, supra.

"In Davidson, we pointed out that 'our cases do not require that

the defendant himself perform the touching.' . . .    As in Nuby

and in Davidson, '[t]he gravity of the conduct rises to the

level which the[] statute[] [was] designed to prohibit.'"

Portonova, supra at 905-906 (citations omitted).

    Even if M.T. did not himself take off A.P.'s clothing or

order her to do so, but merely stood by while the other boy did

so and then ran away with him, M.T.'s presence during the act

and, in particular, in running away with the other boy are

evidence that he shared the other boy's purpose.   See

Commonwealth v. Figueroa, 451 Mass. 566, 579 (2008) ("'It is

well settled that evidence of flight may be introduced to show

consciousness of guilt.'    Commonwealth v. Carita, 356 Mass. 132,

140 [1969]").   It is true that "[e]vidence that an accused

associated with persons who committed the crime does not

'justify an inference that [he also] participated in [its]

commission.'"   Commonwealth v. Saez, 21 Mass. App. Ct. 408, 410

(1986) (citation omitted).    However, other actions can support a
                                                                  16


conclusion that a defendant participated in the commission of

the crime under a joint venture theory.

    To prove joint venture, it must be shown "that the

defendant 'knowingly participated in the commission of the crime

charged, alone or with others, with the intent required for that

offense.'"   Commonwealth v. Colton, 477 Mass. 1, 11 (2017),

quoting from Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).

"There is no requirement . . . [to] prove precisely what role

the defendant played -- whether he acted as a principal or an

accomplice (or joint venturer)."    Commonwealth v. Silva, 471

Mass. 610, 621 (2015).

    Moreover, joint venture can be proved with circumstantial

evidence, including flight from the scene together.   See

Commonwealth v. Garcia, 470 Mass. 24, 31-32 (2014); Commonwealth

v. LeClair, 68 Mass. App. Ct. 482, 489 (2007).   Finally, of

course, "[a] person's knowledge or intent is a matter of fact,

which is often not susceptible of proof by direct evidence, so

resort is frequently made to proof by inference from all the

facts and circumstances . . . .    The inferences drawn by the

[fact finder] need only be reasonable and possible and need not

be necessary or escapable."   Commonwealth v. Casale, 381 Mass.

167, 173 (1980).

    The evidence established that the two boys visited A.P.'s

home together; all three children were outside playing alone
                                                                  17


together for a very short period of time; A.P. came running in,

crying for help and without most of her clothing; when the

mother went to look for A.P.'s clothing, she saw both boys

running away; they looked back at her, but kept on running.

    We acknowledge that flight from a scene by young children

may call for a different analysis from that of flight by adults.

Here, however, the two boys knew both the mother and A.P. and

had been in their home only moments earlier; there is no

evidence that they had removed any of their own clothes or had

gotten particularly muddy in the very short period of time that

they were alone with A.P.   Combined with A.P.'s apparent

distress and statements, "[H]elp me" and "[T]hat person," after

the mother prodded her for information, the evidence was

sufficient for the judge to conclude, under a preponderance of

the evidence standard, that at least one of the boys either took

off A.P.'s clothes or commanded her to do so, and put her or

ordered her on to the muddy ground while the other aided in some

manner.   See Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 711

(2011) (joint venture may be shown by evidence that each

defendant "was willing and available to assist if necessary"

[citation omitted]).

    The facts here are not dissimilar to those found sufficient

to support a harassment prevention order in F.A.P., 87 Mass.

App. Ct. at 600.   In that case, "there was evidence that a seven
                                                                    18


year old girl suffered a labial tear directly after having been

alone with a defendant who had previously engaged in an indecent

touching of her.   That evidence was sufficient to support a

finding, by a preponderance of the evidence, that the defendant

raped the plaintiff."   Ibid.   As here, the child plaintiff did

not testify and, in fact, this court ruled that, notwithstanding

the fact that the judge in that case erroneously had excluded

the plaintiff's mother's report of what the child had told her,

the admitted evidence was sufficient.    Ibid.

    We also have in mind that, in this civil case, neither boy

testified at the hearing.   While "a defendant's failure to

testify cannot be used to justify the issuance of an abuse

prevention order until a case is presented on other evidence,"

Frizado, 420 Mass. at 596, "[a]n inference adverse to a

defendant may properly be drawn . . . from his or her failure to

testify in a civil matter such as this, even if criminal

proceedings are pending or might be brought against the

defendant.   See McGinnis v. Aetna Life & Casualty Co., 398 Mass.

37, 39 (1986); Commonwealth v. United Food Corp., [374 Mass.

765], 771-772 [1978].   The fact that the defendant may refuse to

testify on the ground of self-incrimination does not bar the

taking of an adverse inference."    Frizado, supra.   See S.T. v.

E.M., 80 Mass. App. Ct. 423, 429 (2011).   For these reasons, we
                                                                     19


conclude that there was sufficient evidence to support the

extension of the ex parte order.

    b.    Cross-examination.    M.T. also argues that the judge

abused his discretion when he limited cross-examination of the

mother.   While it is true that a defendant has a "general right"

to cross-examine witnesses against him, a judge may "limit

cross-examination for good cause in an exercise of discretion."

Frizado, supra at 597.    Furthermore, a judge "should not permit

the use of cross examination for harassment or discovery

purposes [although] each side must be given meaningful

opportunity to challenge the other's evidence."     Id. at 598 n.5,

citing Draft Standards of Judicial Practice, Abuse Prevention

Proceedings (Dec., 1994) (eventually adopted, with amendments,

as the guidelines).

    Here, the judge allowed cross-examination, and was within

his discretion to end it.    Contrast C.O. v. M.M., 442 Mass. 648,

658 (2004), where "the issue whether to limit cross-examination

was never reached by the judge because he allowed no cross-

examination at all."     The boys' attorneys collectively elicited

testimony from the mother regarding A.P.'s clothing habits and

playing style, and they explored possible alternative

explanations for why A.P. came in the house wearing only her

underwear and covered in mud.    When the judge cut off M.T.'s

attorney's cross-examination, the judge said, sua sponte, "I'll
                                                                  20


note your objection because this is a very limited hearing."

When M.T.'s counsel asked to be heard further, the judge agreed,

and counsel argued only that "there is no case law anywhere to

suggest that these are limited hearings and that the Defense

isn't entitled to a full cross-examination.   There is no case

law anywhere that suggest[s] the rules of evidence don't apply

to this proceeding."12   There was no offer of proof as to what

any further cross-examination would have entailed.

     Counsel for the other boy was then permitted to cross-

examine the witness and, apparently, was permitted to ask as

many questions as he liked.13   In addition, neither attorney

offered any other evidence after the other boy's attorney

finished his cross-examination of the mother.   Looking at the

record as a whole, it is clear that both boys' attorneys were

given a meaningful opportunity to cross-examine the mother and

to challenge the evidence.   See F.A.P., 87 Mass. App. Ct. at

600-601.

     12
       Counsel acknowledged that the Massachusetts Guide to
Evidence noted that "the rules of evidence don't apply to 209A
hearings," but added, "This is not a 209A hearing. . . . The
rules of evidence apply to all hearings in Massachusetts except
for those that are specifically exempted under the Mass. Guide
to Evidence, and this is not one of those." Counsel was
mistaken.
     13
       That cross-examination occupied approximately one page of
transcript. While the judge may have interrupted when he said,
"Okay. Thank you," counsel did not object and, like M.T.'s
counsel, made no offer of proof about what else he would have
asked.
                                                                     21


    c.   In-court identification.     Finally, M.T. argues that the

in-court identification was unreliable and unnecessarily

suggestive and should not have been admitted absent "good

reason," as required by Commonwealth v. Crayton, 470 Mass. 228,

241 (2014).    In Crayton, the court said, "Where an eyewitness

has not participated before trial in an identification

procedure, we shall treat the in-court identification as an in-

court showup, and shall admit it in evidence only where there is

'good reason' for its admission."     Ibid.   However, Crayton was a

criminal case, and the court there expressly refused to decide

whether Crayton would apply to civil cases.     See id. at 241

n.16.

    Furthermore, in Crayton, the court explained that one good

reason to permit an in-court identification, with no prior

identification procedure, would be "where the eyewitness was

familiar with the defendant before the commission of the crime,

such as where a victim testifies to a crime of domestic

violence."    Id. at 242.   Here, the mother testified that she

knew both boys because they had visited her home in the past and

had played with her daughter and with the third boy in her home.

Indeed, one of the boys lived next door to her.     She recognized

them both as they climbed over the fence and came into her house

when A.P. opened the door.     She permitted her daughter to go

outside to join them in her yard, and she saw them running away.
                                                                22


As a result, there was good reason to permit the in-court

identification of both boys.

                                  Harassment prevention order
                                   affirmed.
     KAFKER, C.J. (concurring).   I concur in the result in this

very difficult harassment prevention order case because I

believe that there is sufficient evidence, albeit barely, for a

Juvenile Court judge to find by a preponderance of the evidence

that M.T. committed an indecent assault and battery as a joint

venturer.    I write separately, however, to stress the importance

of M.T.'s very young age -- he was apparently only eight years

old at the time of the incident -- and how that age complicates

the analysis and distinguishes this case from those on which the

majority relies that involve adults.    I am also troubled by how

little evidence we have of what occurred here.   We have no

testimony about what the three children were doing when they

went outside to play, how or by whom A.P.'s clothes were

removed, what M.T. himself did, or the age of the other boy.

Nevertheless, I conclude that the combination of the removal of

A.P.'s clothes; her distress following the incident; the

obviously rough physical treatment of her by the boys while they

were playing outside, as demonstrated by the photographs of her;

the father's statements about the bruises and abrasions on

A.P.'s body;1 and the boys' running away together and looking

back at the mother is sufficient to support the order and the

extension.

     1
       The father stated in his affidavit accompanying the
application for the G. L. c. 258E order that a hospital found
"several bruises and abrasions on [A.P.'s] body."
                                                                     2


     Indecent assault and battery on a child, G. L. c. 265,

§ 13B, requires proof of an "indecent" touching.     Commonwealth

v. Rosa, 62 Mass. App. Ct. 622, 624 (2004).     "A touching is

indecent when, judged by the normative standard of societal

mores, it is violative of social and behavioral expectations, in

a manner which [is] fundamentally offensive to contemporary

moral values . . . [and] which the common sense of society would

regard as immodest, immoral and improper."    Id. at 625

(quotation omitted).    "When evaluating evidence of alleged

indecent behavior, we consider all of the circumstances"

(emphasis supplied).    Id. at 626 (citation omitted).   This

includes the ages of the participants, any "age disparity"

between them, "difference[s] in [their] experience and

sophistication," and any "authority disparity" between them.

Ibid.    See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 567

(2002).

     We therefore must consider M.T.'s very young age in

determining whether his alleged acts are indecent, or

"fundamentally offensive to contemporary moral values."     Rosa,

62 Mass. App. Ct. at 625 (citation omitted).     Most of the cases

relied upon by the majority in concluding that M.T. committed an

indecent assault and battery involve adults.2    Adult cases (with


     2
       The majority also relies on F.A.P. v. J.E.S., 87 Mass.
App. Ct. 595 (2015), which I address in note 5, infra.
                                                                    3


child victims) are different, as they involve an age and an

authority disparity and differences of experience and

sophistication that are not present here.3   See, e.g., Castillo,

55 Mass. App. Ct. at 567 (noting "considerable age disparity,"

"obvious disparity in experience and sophistication," and

"authority disparity" in concluding that thirty year old man

committed indecent act by forcing his tongue into fourteen year

old girl's mouth; defendant was stepfather of victim's friend);

Rosa, supra at 626 (noting "age disparity" and "difference in

experience and sophistication" in concluding that man committed

indecent act by putting finger in eleven year old girl's mouth);

Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307, 309 (2005)

(man in his thirties committed indecent act by kissing twelve

year old niece due to "the age difference . . . and [the

defendant's] position of familial authority over her"; "an

unwanted kiss on the mouth has been held to constitute indecent

conduct . . . when coupled with surreptitiousness and a

considerable disparity in age and authority between the

perpetrator and the victim" [emphasis supplied]); Commonwealth

v. Miozza, 67 Mass. App. Ct. 567, 572 (2006) (noting ages, age


     3
       I recognize that there is an age disparity between an
eight year old child and a four year old child. However, this
is not the "considerable" disparity of experience and
sophistication, particularly regarding sexual matters, Castillo,
55 Mass. App. Ct. at 567; Commonwealth v. Vazquez, 65 Mass. App.
Ct. 305, 307 (2005), that is emphasized in the indecency cases.
                                                                   4


disparity and "position of authority" in concluding that thirty

year old "close family friend" committed indecent act by kissing

girls younger than age eleven; "the defendant's behavior

violated clearly delineated and accepted societal expectations

governing relationships between adults and children, and was

therefore 'indecent'" [emphasis supplied]).

    This court has also held that § 13B is not

unconstitutionally vague "[b]ecause a person of average

intelligence can be expected to be able to identify [indecent]

conduct," Miozza, 67 Mass. App. Ct. at 571, an assumption that

must be considered in proper context when dealing with very

young children.   See Commonwealth v. Lavigne, 42 Mass. App. Ct.

313, 315 (1997) ("the term 'indecent' affords a 'reasonable

opportunity for a person of ordinary intelligence to know what

is prohibited'" [citation omitted]).

    If M.T. were an adult, or even an older teenager, I would

have no trouble concluding that the actions alleged in this case

are indecent, understood as such by the perpetrator, and

recognized by society at large.   When the defendant is an eight

year old child, however, and the crime is indecent assault and

battery on another child, the inquiry is much more complicated.

I understand that a child of this age should know that treating

another child roughly and removing her clothing is inappropriate

and should result in severe parental discipline and other types
                                                                   5


of corrective action, including counselling.   But what an eight

year old child can reasonably be expected to understand beyond

that on these facts, and whether our society would consider such

behavior by a young child to be "fundamentally offensive to

contemporary moral values," is a very different question.      Rosa,

62 Mass. App. Ct. at 626, quoting from Castillo, supra at 566.

It seems to me that a young child would have difficulty

recognizing that these actions -- particularly if the children

were only "roughhousing" -- are indecent or immoral, and that

society would acknowledge that difficulty.   See Adoption of

Olivette, 79 Mass. App. Ct. 141, 150 (2011) (eight year old

exhibited "age-inappropriate awareness of sexual matters").

While very young children may be expected to recognize more

obvious harms and risks, such as those associated with fire,

their ability to understand inappropriate sexual contact cannot

be so assumed.4   Compare Commonwealth v. Ogden O., 448 Mass. 798,


     4
       The case law also provides very little guidance on how to
review the criminality of such behavior by a very young child.
For older adolescents, we have simply recognized their
differences from adults and taken them into account, at least
for sentencing purposes. See generally Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 660 (2013), S.C.,
471 Mass. 12 (2015). See also Commonwealth v. Mogelinski, 466
Mass. 627, 647 (2013) ("Adolescents are socially, emotionally,
and cognitively different from adults" [citation omitted]).
Other States and commentators have gone further. See generally
In re T.S., 133 N.C. App. 272, 276-277 (1999) (reversing
adjudication of delinquency of nine year old boy for lewd act on
three year old boy; "[A] lewd act by adult standards may be
innocent between children . . . . Adults can and should be
                                                                    6


802 (2007) ("Nothing in the record suggests that the [ten year

old] juvenile had any developmental handicaps or other

disabilities that might have impaired his ability to perceive

the common and severe risks associated with fire").

    The majority explains that, because the Legislature

"deliberately entrusted to the trial court department most

experienced with juveniles exclusive authority to issue

harassment orders against them, it had young people's

limitations and abilities particularly in mind," quoting from

A.T. v. C.R., 88 Mass. App. Ct. 532, 539 (2015).   Ante at      .

I agree and recognize the expertise of the Juvenile Court

Department in this area.   However, we unfortunately have limited

analysis here by the Juvenile Court judge, and the majority

relies for the most part on cases involving adults, particularly

to support the conclusion that the removal of A.P.'s clothes

constitutes an indecent assault and battery and that M.T.'s

flight confirms that he acted as a joint venturer in a sex

crime.




presumed to know the nature and consequences of their acts; this
is not always the case with children"); Northrop & Rozan, Kids
Will Be Kids: Time for a "Reasonable Child" Standard for the
Proof of Objective Mens Rea Elements, 69 Me. L. Rev. 109, 112,
118 (2017) ("the juvenile code should be amended to explicitly
refer to a reasonable child standard"; "[b]rain research tells
us that a juvenile's deviation from an adult reasonable standard
of behavior is not the indicator of a 'criminal mind' in the
same way that it might be for an adult").
                                                                     7


     I also agree with the majority that "a defense of

incapacity based on youth" is "inapplicable to current juvenile

proceedings," quoting from Ogden O., 448 Mass. at 803.      Ante

at       .   This does not mean, however, that M.T.'s youth is not

significant.      I believe that M.T.'s young age should be more

expressly taken into account, as age, including the difference

between an eight year old child and a seventeen year old

juvenile, is a relevant and important factor when determining

whether conduct is indecent in this context.5     Compare Miozza, 67

Mass. App. Ct. at 572.


     5
       I also note that in the two most relevant juvenile cases,
the evidence that a sex crime had occurred was significantly
stronger than it is here. The majority relies in part on
F.A.P., 87 Mass. App. Ct. at 595. Ante at     . However, F.A.P.
involved only one eleven year old boy, who had previously
engaged in inappropriate touching with the seven year old
victim. Id. at 596-597. Thus, it was reasonable to conclude
that the boy committed a sex crime on the girl when, immediately
after being alone with him, she was bleeding from her vaginal
area, told her mother that he had "shoved his fingers up there,"
and told her not to tell anyone. Id. at 597. Here, by
contrast, we know very little about what happened and, while
there was a history of rough play, there was no history of
sexual misconduct.

     We also have much less evidence here than in A.T., supra at
540, in which this court affirmed a harassment prevention order
against an eleven year old boy who committed three acts of
wilful and malicious conduct against an eleven year old girl.
See G. L. c. 258E, § 1. The boy stated in a video chat with the
girl that he sometimes stares at her "big jugs of milk" during
class. A.T., supra at 533. The boy later told the girl that he
would "make her life a living hell" if she showed the video chat
to anyone. Ibid. The boy also described a sexual fantasy about
her to several classmates and, after their parents became
involved, told the girl that he wanted to "punch [her] in the
                                                                     8


    The joint venture rationale is also complicated by M.T.'s

very young age.   Joint venture requires proof that the defendant

"shared the intent to commit the crime."   Commonwealth v.

Montalvo, 76 Mass. App. Ct. 319, 330 (2010).    See A.T., 88 Mass.

App. Ct. at 538 ("The defendant's age, eleven, certainly is a

factor in determining his intent").   In discerning such intent,

we draw inferences from a defendant's collective actions,

including flight evidencing consciousness of guilt.

Nevertheless, the joint venture inferences that can be drawn

from the actions of an adult or even a teenager differ from

those that can be drawn from the actions of an eight year old

child.   See State v. Rice, 110 Ariz. 210, 212 (1973) (expressing

"some doubts as to the capability of children of such tender

ages as nine, ten or eleven to be accomplices").   Although the

majority "acknowledge[s] that flight from the scene by young

children may call for a different analysis from that of flight

by adults," ante at     , the majority relies exclusively on

cases involving adults in concluding that M.T. could be deemed a

joint venturer.

    I recognize that, in the instant case, there is some

evidence to support the joint venture theory.    The boys went to

the house together, had engaged in rough play with A.P. on prior



titties." Id. at 534. Both children testified at the hearing
about these events. Id. at 540.
                                                                    9


occasions, and were seen running away together.    The mother

"felt funny" about the way the boys turned and looked back at

her as they ran away.   Although we do not know how or by whom

A.P.'s clothes were removed, M.T. was present and stayed with

the other boy throughout the incident.    Collectively, these are

relevant factors, and they were appropriately considered by the

Juvenile Court judge.   However, these factors must be considered

in the context of M.T.'s age, as with our indecency analysis.

See A.T., 88 Mass. App. Ct. at 538.    Very different inferences

can be drawn from a young boy running away when he knows he is

going to be in trouble with his neighbor's mother than from an

adult fleeing the scene of a crime.    See Commonwealth v. Ward

W., 47 Mass. App. Ct. 208, 212 (1999) (fourteen year old fled,

looking back at police cruiser many times; "[d]espite evidence

of the juvenile's consciousness of guilt . . . and his

association with people who may have committed armed robbery and

carjacking . . . , the inference that the juvenile participated

in the crime . . . is unwarranted").    The case law recognizes

that even much older juveniles "lack the ability to extricate

themselves from horrific, crime-producing situations."

Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.

655, 660 (2013), S.C., 471 Mass. 12 (2015), quoting from Miller
                                                                     10


v. Alabama, 567 U.S. 460, 471 (2012).     The entire incident here

also happened quickly, leaving little time for reflection.6

     In sum, this is a very close case.    M.T.'s young age

significantly affects our analysis whether his actions were

indecent and whether he acted as joint venturer.     We also have

limited guidance in the case law regarding such young offenders.

Finally, we have large gaps in the evidence, specifically

regarding what M.T. himself did.   I nonetheless recognize that

when all the evidence is considered, including the mud and the

abrasions on A.P., the removal of her clothes, her distress, and

the boys' flight, "together with all permissible inferences,"

A.T., 88 Mass. App. Ct. at 535, there is sufficient evidence for


     6
       I also interpret the mud on A.P.'s clothes and body
differently from the majority. The majority describe the mud as
being on the "crotch of her underpants and smeared over her bare
feet and legs" and state that the boys "put her . . . on to the
muddy ground." Ante at     . This depiction is, in my view,
more forceful and sexual than I believe the photographs in and
of themselves prove. The mud appears to be on A.P.'s bottom,
which could have resulted from her sitting or playing in the
mud, going down the backyard slide, or playing on the jungle
gym, as she liked to do. Her mother testified that she enjoyed
roughly playing with M.T. in the past, and that such rough play
easily could have resulted in the mud on her clothes and body.
A.P. was wearing a dress, and the mother also testified that she
sometimes falls down and comes in muddy from playing outside.
The judge did not make any specific findings with respect to the
significance of the mud in the photographs; he merely stated
that the photographs are "compelling." What conclusions they
compel, however, is not clear to me given the very young age of
the participants and their history of rough outdoor play. See
Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002) (fact
finder in "no better position to evaluate the content and
significance" of photographs).
                                                                  11


a Juvenile Court judge to find by a preponderance of the

evidence that M.T. committed an indecent assault and battery as

a joint venturer.   The removal of A.P.'s clothes, in particular,

indicates that something different from ordinary roughhousing

occurred here.   I therefore agree that the harassment prevention

order was properly issued and extended in this unique case.
