Commonwealth v. Gomes

483 Mass. 123

130 N.E.3d 1234

COMMONWEALTH

v.Jean GOMES.

SJC-12692

Supreme Judicial Court of Massachusetts, Bristol..

Argued May 6, 2019.

Decided September 13, 2019.

Dana Alan Curhan, Boston, for the defendant.

Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

In this case, we must determine whether the defendant's conviction of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, was aggravated by his status as an alleged mandated reporter at the time of the offense. See G. L. c. 265, § 13B 1/2 (b ). Because there was no evidence that the defendant was acting in his professional capacity when he committed the offense, we must conclude that the judge erred in denying the defendant's motion for a required finding of not guilty as to G. L. c. 265, § 13B 1/2 (b ). We also conclude, however, that there was sufficient evidence to convict the defendant of the lesser included offense. G. L. c. 265, § 13B.

1. Background. a. Facts. We recite the facts the jury could have found, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

The victim, Jane,¹ lived in New Bedford with her mother and her grandmother.

Her adult cousin lived in a nearby apartment. The defendant met and began dating Jane's mother when Jane was approximately eighteen months old. The two dated "on and off" for approximately ten years. Throughout that period, the defendant was a police officer in a K-9 unit. He was trained as a mandated reporter. The defendant often visited the mother's house. Frequently, he, the mother, and Jane watched television together, or Jane and the defendant watched television while the mother was upstairs.

On one occasion when Jane was approximately eight years old, she, the mother, and the defendant went to Jane's cousin's apartment so that the defendant could repair a broken television stand. The defendant was in plain clothes. Upon arriving at the apartment, he went upstairs to inspect the television stand. Jane remained downstairs, where she sat on a couch and watched television.

The defendant later came downstairs, and sat on the couch near Jane. He tickled her. She then "ended up on his lap," such that she was "facing out," away from the defendant. The defendant clasped Jane's waist with his hands and repeatedly pushed her downward while thrusting his "private area" upward into Jane's "butt." The defendant then told Jane "not to tell anybody because he'd get into trouble."

Jane said that, although the defendant's conduct made her "uncomfortable," she thought that his actions were normal. Later, when Jane was approximately ten years old, she told one of her friends about the defendant's conduct. Several days later, the friend informed her mother about what Jane had said. The friend's mother then contacted Jane's mother, who apparently filed a police report. By that time, Jane had come to regard the defendant's conduct as "weird." She also was experiencing anxiety, nervousness, stomach pain, headaches, and hair loss.

b. Procedure. The defendant was indicted on three separate counts of indecent assault and battery on a child under the age of fourteen by a mandated reporter, in violation of G. L. c. 265, § 13B 1/2 (b ). At the time of trial, the defendant was sixty years old and had retired after approximately thirty-two years of employment as a police officer.

Prior to trial, the Commonwealth filed a motion requesting the judge to take judicial notice that the defendant, as a police officer, was a mandated reporter at all times relevant to the three charges. The defendant objected on due process grounds; he argued that the Commonwealth was required to prove beyond a reasonable doubt that he had been a mandated reporter at the time of the offense. The judge concluded that "whether or not a police officer is a mandated reporter" is "a matter of law." The judge then informed the parties that he would instruct the jury that "a police officer is a mandated reporter."

At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, pursuant to Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995); the motion was denied. At the close of all the evidence, the judge denied the defendant's renewed motion for a required finding. In his final charge, the judge instructed the jury that a police officer is a mandated reporter. After two days of deliberation, the jury convicted the defendant of one count of indecent assault and battery on a child under fourteen by a mandated reporter, pertaining to the events at the cousin's apartment, and acquitted him of the other charges.

The defendant moved to set aside the verdict or, in the alternative, to set aside so much of the verdict as included the mandated reporter element of G. L. c. 265, § 13B 1/2 (b ). The judge denied the motion. The judge then sentenced the defendant to the minimum mandatory term of incarceration in a State prison of not less than ten years and not more than ten years and one day. The defendant filed an appeal in the Appeals Court, and we transferred the case to this court on our own motion.

2. Discussion. The defendant argues that the judge erred in denying his motion for a required finding because the evidence was insufficient to support a conviction of indecent assault and battery on a child under fourteen, or a determination that the defendant was a mandated reporter at the time of the offense.² In deciding whether the Commonwealth met its burden to establish each element of the offense charged, we rely on the familiar Latimore standard. See Commonwealth v. Sanchez, 476 Mass. 725, 730, 73 N.E.3d 246 (2017) ; Latimore, 378 Mass. at 676-677, 393 N.E.2d 370.

a. Indecent touching. To prove that a defendant is guilty of indecent assault and battery on a child under fourteen, the Commonwealth must establish beyond a reasonable doubt that (1) the alleged victim was not yet fourteen years of age at the time of the alleged offense; (2) the defendant intentionally touched the alleged victim without legal justification or excuse; and (3) the touching was indecent. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 616, 925 N.E.2d 533 (2010) ( Doe No. 151564 ). See Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562, 106 N.E.3d 1125 (2018), quoting Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138, 99 N.E.3d 827 (2018) ; G. L. c. 265, § 13B.

The defendant contests the sufficiency of the evidence that his touching of Jane was "indecent." Although the type of conduct that constitutes an indecent touching is not defined in G. L. c. 265, § 13B, an "indecent" touching has been understood as one that "offends contemporary standards of decency and moral values," Doe, No. 151564, 456 Mass. at 616, 925 N.E.2d 533, to the extent that a "reasonable opportunity" is provided "for a person of ordinary intelligence to know what is prohibited" (citation omitted). Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566, 772 N.E.2d 1093 (2002). The test is an objective one, Colon, 93 Mass. App. Ct. at 562, 106 N.E.3d 1125, and looks to the totality of the circumstances. Castillo, supra.

Here, the defendant's actions of holding Jane by the waist and forcing her to move her body such that her "butt" came into repeated contact with his genitals clearly met the standard of "indecent." It is well established that "the intentional, unjustified touching of private areas such as the breasts, abdomen, buttocks, thighs, and pubic area ... constitutes an indecent assault and battery." See Colon, 93 Mass. App. Ct. at 562, 106 N.E.3d 1125, quoting Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184, 567 N.E.2d 939 (1991) ; Cruz, 93 Mass. App. Ct. at 138, 99 N.E.3d 827. See also Commonwealth v. Trowbridge, 419 Mass. 750, 757, 647 N.E.2d 413 (1995) (no error in instructing jury that "an assault and battery was indecent if it involved the touching of the genitals, buttocks or breasts").

Viewing the facts the jury could have found in the light most favorable to the Commonwealth, a rational jury could have concluded beyond a reasonable doubt that the touching at issue was indecent. See Castillo, 55 Mass. App. Ct. at 567, 772 N.E.2d 1093. The judge thus properly denied the defendant's motion for a required finding as to the charge of indecent assault and battery on a child under fourteen. See G. L. c. 265, § 13B.

b. Mandated reporter. In a motion filed after the jury returned their verdict, the defendant argued that, because he had not been acting in his capacity as a police officer at the time of the offense, the evidence was insufficient to prove beyond a reasonable doubt that he was subject to enhanced punishment under G. L. c. 265, § 13B 1/2 (b ). The judge denied the motion. He again concluded that, as a matter of law, a defendant who is employed as a police officer is a mandated reporter under G. L. c. 265, § 13B 1/2 (b ), even if the defendant was not acting in a professional capacity at the time of the offense.

On appeal, the Commonwealth acknowledges that the evidence was devoid of any suggestion that the defendant had been acting in his professional capacity at the time of the offense. Indeed, the only relevant evidence was to the contrary. Jane testified that the defendant had been wearing plain clothes, suggesting that the defendant, who worked as a uniformed K-9 officer, had been off duty when he went to the cousin's house to fix a television stand. Thus, the limited issue before us is whether the defendant nonetheless may be convicted under G. L. c. 265, § 13B 1/2 (b ), as a mandated reporter.

"Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ " Commonwealth v. Brown, 479 Mass. 600, 606, 97 N.E.3d 349 (2018), quoting Sheehan v. Weaver, 467 Mass. 734, 737, 7 N.E.3d 459 (2014)....