23 Mass. App. Ct. 1016 | Mass. App. Ct. | 1987
The defendant has appealed from his conviction by a jury on an indictment framed under G. L. c. 265, § 13B, as in effect prior to St. 1986, c. 187. 1. The evidence at the close of the Commonwealth’s case (Commonwealth v. Kelley, 370 Mass. 147, 149-150 [1976]) was sufficient to warrant a rational trier of fact (Commonwealth v. Latimore, 378 Mass. 671, 677-678 [1979] ) in concluding beyond a reasonable doubt that the defendant had committed each of the elements of the offence as explicated in Commonwealth v. Burke, 390 Mass. 480, 482-487 (1983). In particular, the age of the victim (ten years at the time of the offence) and his obvious difficulty in answering some of the prosecutor’s questions at trial warranted a finding that the victim had not consented to the indecent touching proved through other witnesses. Commonwealth v. Burke, 390 Mass. at 484,487. Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 931-932 (1984). The jury could also consider the improbability that anyone who voluntarily engages in an amateur wrestling match consents to an intentional squeezing of his genitals. Compare Commonwealth v. Sostilio, 325 Mass. 143, 146 (1949) (wanton and reckless driving not an essential part of automobile racing); Commonwealth v. Appleby, 380 Mass. 296, 308-311 (1980) (private consensual sadomasochistic behavior not a defence to charge of assault and battery by means of a dangerous weapon). 2. The request for an instruction on the effect of an accidental touching came late (see Mass.R.Crim.P. 24[b], 378 Mass. 895 [1979]; Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 751 [1980] ) and was defective in the sense that, if given verbatim, it would have had the effect of reversing the burden of proof on that question (see Lannon v. Commonwealth, 379 Mass. 786,792-793 [1980]; Commonwealth v. Zezima, 387 Mass. 748, 756-757 [1982]), but there had been some evidence which warranted a finding that the touching had been accidental and the prosecutor had dealt with that evidence in his closing argument.
Judgment affirmed.