Commonwealth v. Melo

95 Mass.App.Ct. 257

123 N.E.3d 791

COMMONWEALTH

v.David MELO.

No. 18-P-77

Appeals Court of Massachusetts, Middlesex..

Argued October 4, 2018

Decided May 8, 2019

Andrew P. Power, Salem, for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

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

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 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 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"; 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 [393 N.E.2d 370 (1979) ]. ‘The inferences drawn from [the] evidence need only be reasonable and possible, not necessary or inescapable.’ Commonwealth v. Morgan, 449 Mass. 343, 349 [868 N.E.2d 99] (2007) (quotation omitted)." Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 402, 105 N.E.3d 266 (2018).

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, 65 N.E.3d 1160 (2017), quoting Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261, 897 N.E.2d 1015 (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, 105 N.E.3d 266, quoting Maguire, supra at 161, 65 N.E.3d 1160.

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, 65 N.E.3d 1160.

As we noted in Taranovsky, 93 Mass. App. Ct. at 402, 105 N.E.3d 266, "[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

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, 789 N.E.2d 138 (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, 883 N.E.2d 1217 (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."

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, 315 N.E.2d 878 (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, 113 N.E.3d 828 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (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, 5 N.E.3d 530 (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 not touch her. He then continued to emphasize facts that supported that theory: there was no surveillance video to corroborate the victim's testimony,...