106 N.E.3d 1125
Mass. App. Ct.2018Background
- Defendant (58) met victim (13) at a family barbecue; they were only distantly related.
- As guests dispersed, defendant hugged the victim in a doorway where no one else was present.
- Defendant pulled the victim tightly to his chest, would not let her go, and she tried to break away.
- Defendant extensively licked around the victim’s ear piercings and inserted his tongue into her ear repeatedly; conduct stopped when another relative approached.
- Trial was jury-waived; judge convicted defendant of indecent assault and battery on a child under 14 (G. L. c. 265, § 13B) and sentenced him to incarceration with most time suspended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency: whether ear-licking and hugging constituted "indecent" touching | Commonwealth: conduct was sexual, forcible, surreptitious, and objectively offensive | Colon: hugging and ear contact insufficient as matter of law to show indecency | Affirmed — viewed in context (age gap, force, surreptitiousness, prolonged ear-licking), evidence sufficient |
| Vagueness: whether term "indecent" is unconstitutionally vague as applied | Commonwealth: statutory standard and precedents provide adequate guidance | Colon: ordinary person could not predict that ear-licking falls within "indecent" | Affirmed — statute not vague as applied; conduct fits established objective standards of indecency |
Key Cases Cited
- Commonwealth v. Lattimore, 378 Mass. 671 (standard for reviewing sufficiency of evidence)
- Commonwealth v. Mosby, 30 Mass. App. Ct. 181 (examples of sexual/private areas and definition of indecent touching)
- Commonwealth v. Rosa, 62 Mass. App. Ct. 622 (mouth and other non-enumerated areas may be intimate; context matters)
- Commonwealth v. Castillo, 55 Mass. App. Ct. 563 (insertion of tongue during kiss can be indecent)
- Commonwealth v. Cruz, 93 Mass. App. Ct. 136 (contrast facts where brief hug and kiss were insufficient)
- Commonwealth v. Quinn, 439 Mass. 492 (vagueness challenge standard)
- Commonwealth v. Gallant, 373 Mass. 577 (statutes requiring judicial construction not necessarily vague)
- United States v. Powell, 423 U.S. 87 (vagueness challenges examined in light of facts)
- Commonwealth v. Miozza, 67 Mass. App. Ct. 567 (objective standards for indecency)
- Commonwealth v. Ortiz, 47 Mass. App. Ct. 777 (indecency framed as "immodest and improper" with sexual overtones)