Commonwealth v. ColonCommonwealth v. Colon
ENGLANDER, J. The defendant challenges the sufficiency of the evidence to convict him of indecent assault and battery on a child under fourteen, where he hugged the victim for a prolonged time while extensively licking in and around her ear. We hold
Background. We recite the facts in the light most favorable to thе Commonwealth. The defendant and the victim met for the first time at a family barbecue on September 6, 2015. The defendant was fifty-eight years old at the time; the victim, thirteen. The family relationship was distant; the defendant was the brother of a relative of the victim‘s stepfather. There were twelve to fifteen people at the barbecue.
Sometime during the barbecue thе victim was introduced to the defendant; the victim testified that during the barbecue the defendant was looking at her in a way that made her “uncomfortable.” As the barbecue was winding down, the victim went to leave and encountered the defendant in a doorway. The defendant put his arms out for a hug; no one else was present, as the remaining guests were in another room at thе time. The victim hugged the defendant. The defendant then pulled the victim to him, “right on his chest,” and “wouldn‘t let [the victim] go.” The defendant then began licking the victim‘s ear, including licking all around her three ear рiercings, and inserting his tongue in her ear. The victim tried to get away, but the defendant held on. The hugging and ear licking went on
The trial was jury-waived. The judge convicted the defendant of indecent assault and battery on a child under fourteen, in violation of
On appeal, the defendant raises two issues: first, that the evidence of ear licking and hugging was insufficient to constitute indecent assault and battery as a matter of law, and second, that the term “indecent” in the criminal statute is not sufficiently defined and therefore is uncоnstitutionally vague.
Discussion. a. Sufficiency of the evidence. As to the defendant‘s first argument, we review a challenge to sufficiency of the evidence to determine “whether, after viewing the evidence in the light most favorable tо the prosecution, any rational trier of fact could have found the essential elements
To sustain a conviction of indecent assault and battery on a child, the Commonwealth must prove “that (1) the child was not yet fourteen years old at the time of the offense, (2) the defendant intentionally touched the child without legal justification or excuse, and (3) the touching was indecent.” Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138 (2018). See
Several of our cases have addressed the question of what conduct constitutes “indecent” assault and battery. We have stated that “the intentional, unjustified touching of private areas such as the breasts, abdomen, buttocks, thighs, and pubic area of a female constitutеs an indecent assault and battery.” Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991) (quotation omitted). These areas have been classified as “sexual parts.” Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625 (2004). But this list “is not intended to be exhaustive,” and our cases have held that the unjustified touching of other areas of the body may also qualify as indecent, depending upon
In an effort to define an “indecent touching” morе generally, we have said that it is a touching that is “fundamentally offensive to contemporary moral values,” Mosby, 30 Mass. App. Ct. at 184 (quotation omitted), and that “society would regard as immodest and impropеr because of its sexual overtones . . . .” Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 779 (1999). See Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 572 (2006). The test is an objective one, see Castillo, 55 Mass. App. Ct. at 565, and our cases have set forth several other guideposts for consideration, to wit: whether there is a disparity in age and sophistication between assaulter and victim; whether there is an existing relationship between them; and, whether there is evidence of surreptitious behavior or the use of force. See id. at 567; Cruz, 93 Mass. App. Ct. at 139. These guideposts can help to separate conduct that is objectively offensive and sexual from conduct that may in fact be innocent.
b. Vagueness. The defendant argues, alternatively, that “indecent assault and battery,” as defined under
We disagree. A statute is not unconstitutionally vague merely because its terms require judicial construction, or because “it requires a person to conform his conduct to an imprecise but comprehensible normative standard.” Commonwealth v. Gallant, 373 Mass. 577, 580 (1977) (quotation omitted). The vagueness challenge is to the statute as applied to the defendant‘s facts. See id. at 581, quoting from United States v. Powell, 423 U.S. 87, 92 (1975) (“[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand“). Here, once again, we have no difficulty concluding that the defendant‘s conduct fell comfortably within those behaviors that are encоmpassed within the standards for “indecency” previously set forth in our cases -- because the conduct was “fundamentally offensive,” and “immodest and improper because of its sexual overtones.” Moreover, nothing in our prior cases suggests that the conduct at issue would not qualify as indecent. Under the above standards there is no material difference betweеn the intentional insertion of a tongue into the victim‘s mouth in
Recently, in Commonwealth v. Cruz, 93 Mass. App. Ct. 136 (2018), we addressed facts that were not sufficient to constitutе indecency. Those facts included a brief but tight hug, “like a hug [the victim‘s] parents would give her,” a kiss on the neck, which in the victim‘s words was “not anything that necessarily alarmed her,” and the slight lifting of a cornеr of the victim‘s shirt, but without exposing or touching of skin. Id. at 137. While the majority and concurring opinions in Cruz help to further define the boundaries of indecent assault, the facts here are plainly distinguishable from Cruz. This case does not involve a pаrental-like hug and a brief kiss on the neck; it involves a forced hug that “felt like forever,” coupled with the licking of an ear, and the insertion of a tongue “over and over again.”2 See id. at 137-139. There is nothing unconstitutionally vague about the term “indecent” as applied to these facts.
Judgments affirmed.