Opinion
No. 15–P–662.
11-08-2016
COMMONWEALTH v. Victor HUAMAN, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Victor Huaman, Jr., was convicted of indecent assault and battery, G.L. c. 265, § 13H, following a jury trial. The victim testified that the defendant approached him at a bar and touched his genitals. The defendant claimed in his recorded statement to police, admitted in evidence, however, that he only touched the victim's abdomen while suggesting that he tuck in his shirt. On appeal, the defendant claims that the trial judge erred by failing to instruct the jury on simple assault and battery, G.L. c. 265, § 13A, as a lesser included offense of indecent assault and battery, based on his statement. We affirm.
1. Background. On August 30, 2013, at approximately 11:00 P.M., the victim, Thomas Ryan, and his friend, Glen Hurme, arrived at a bar in Boston. The bar was described by its owner as “basically the gay equivalent of your neighborhood bar.” Ryan and Hurme began playing pool. The defendant, unknown to them, approached them and asked to play. Ryan explained that they only wished to play each other, and the defendant walked away. According to the defendant, Ryan then left his game of pool to talk to the defendant. The defendant grabbed Ryan's arm and stated, “you have been working out,” prompting Ryan to take off his shirt. Ryan then put his shirt back on and returned to his game of pool.
Ryan's account of the night did not include this interaction.
Soon thereafter, the defendant approached Ryan at the pool table. According to Ryan, the defendant made a “beeline” for him and grabbed his genitals over his pants. The defendant claimed in his statement to police, however, that he only touched Ryan's abdomen while suggesting that he tuck in his shirt. Ryan's friend, Hurme, became angry, and a physical altercation ensued between Hurme and the defendant. The defendant was ejected from the bar. Later, when the bar closed, Ryan and Hurme returned to their vehicle in a nearby parking garage. The defendant followed them, and a physical altercation again ensued in the parking garage. Ryan pinned the defendant down, and when Ryan asked the defendant why he grabbed his genitals in the bar, the defendant responded that “it's a gay bar” and “[t]hat's what people do.”
At the defendant's trial, prior to closing arguments, the judge asked the parties for proposed jury instructions. The Commonwealth requested an instruction on simple assault and battery as a lesser included offense of indecent assault and battery, based on the defendant's statement to police that he touched Ryan's abdomen, rather than his genitals. See Commonwealth v. Thayer, 20 Mass.App.Ct. 234, 238 (1985) (“touching of portions of the anatomy commonly thought private” distinguishes indecent assault and battery from simple assault and battery). Defense counsel objected, stating that the Commonwealth's theory has always been that the defendant grabbed Ryan's genitals, and that it should not have the opportunity to change its theory of the case at that point in the trial. The judge agreed, and declined to instruct the jury on simple assault and battery. At the conclusion of the jury instructions, defense counsel did not object to the absence of an instruction on simple assault and battery. On appeal, the defendant takes the opposite position of the one he argued at trial. He also does so without bringing an ineffective assistance of counsel claim.
Specifically, defense counsel stated: “I would object to the lesser included. The Commonwealth has been very strong in what they believe the facts are. We've had this recorded statement forever, and if they wanted to bring charges with respect to assault and battery for the patting of the abdomen ... they had time to do it. Their theory of the case has been that his genitals were grabbed. And that's always been their theory of the case. And they shouldn't get to just change it up right now, and ask for another instruction.”
2. Standard of review. As previously explained, the defendant in the present case did not object to the judge's failure to instruct the jury on simple assault and battery as a lesser included offense of indecent assault and battery and, in fact, objected to the Commonwealth's request for this instruction. We therefore review the defendant's claim for a substantial risk of a miscarriage of justice. See Commonwealth v. White, 452 Mass. 133, 139 (2008).
A substantial risk of a miscarriage of justice occurs when the court is “left with uncertainty that the defendant's guilt has been fairly adjudicated.” Commonwealth v. Chase, 433 Mass. 293, 299 (2001). “[W]e review the evidence and the case as a whole, considering the strength of the Commonwealth's case, as well as the nature and significance of the alleged errors.” Ibid.
3. Failure to give lesser included offense instruction. The Commonwealth properly concedes that the judge erred in failing to instruct the jury on simple assault and battery as a lesser included offense of indecent assault and battery. See Commonwealth v. Roberts, 407 Mass. 731, 737 (1990) (“[W]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime” [quotation omitted] ). See Chase, 433 Mass. at 299 (trial judge erred in not giving instruction on lesser included offense, as requested by Commonwealth, despite defense counsel's objection to instruction). Indeed, the Commonwealth had correctly but unsuccessfully sought such an instruction at trial.
This court has also indicated that, even in the absence of a request by the parties, the trial judge's failure to provide an instruction on a lesser included offense may constitute reversible error if such an instruction is warranted by the evidence. See Commonwealth v. Yunggebauer, 23 Mass.App.Ct. 46, 52 (1986) (“Ordinarily, even in the absence of a specific request ... a judge should instruct on lesser included offenses when there is a rational basis in the evidence to do so”); see also Commonwealth v. Egerton, 396 Mass. 499, 503 (1986) (“A judge is required to charge the jury concerning lesser included offenses if the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense”). Furthermore, the trial judge may give such an instruction over the objection of both the Commonwealth and the defendant. See Commonwealth v. Jackson, 419 Mass. 716, 725 n. 8 (1995) (“The test to determine if an instruction on a lesser included offense is required does not depend on whether there is an objection by the defendant or the Commonwealth but rather whether the evidence supports the giving of such instruction” [quotation omitted] ); Commonwealth v. Berry, 431 Mass. 326, 338 (2000) (“when the evidence would warrant a conviction of the lesser included offense and the element differentiating the offenses is in dispute, the judge may give the instruction despite objection by both the Commonwealth and the defendant ... but [he or] she [i]s not required to do so”). Accord Commonwealth v. Paton, 31 Mass.App.Ct. 460, 465 (1991) ( “Even assuming a lesser included offense instruction might, in some circumstances, be required in the absence of a defense request ... the evidence in this case did not require it”).
The judge's error in not instructing the jury on simple assault and battery as a lesser included offense of indecent assault and battery did not, however, result in a substantial risk of a miscarriage of justice to the defendant. The Commonwealth's proof of indecent assault and battery was strong. See ibid. Ryan and Hurme gave nearly identical accounts of the touching. Ryan testified that he felt personally violated and did not give his consent to the touching. When Ryan asked the defendant in the parking garage why he grabbed Ryan's genitals at the bar, the defendant did not deny doing so, and instead offered a justification for the touching.
The defendant's own account of the touching, even if believed, might also constitute an indecent assault and battery. See Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 (1991) (“[T]he intentional, unjustified touching of private areas such as the breasts, abdomen, buttocks, thighs, and pubic area ... constitutes an indecent assault and battery” [quotation omitted] ). A touching is indecent when it violates “social and behavioral expectations,” and society would regard it as “immodest, immoral and improper.” Commonwealth v. Rosa, 62 Mass.App.Ct. 622, 625 (2004), quoting from Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 314–315 (1997). “[I]ntimacy, as regards parts of the body, must be viewed within the context in which the contact takes place.” Rosa, 62 Mass.App.Ct. at 625, quoting from People v. Rivera, 138 Misc.2d 570, 571 (N.Y.Sup.Ct.1988).
The judge also instructed the jury as the defendant requested and such an instruction was consistent with the defendant's trial strategy. “The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review.” Commonwealth v. Roberts, 407 Mass. at 737 (quotation omitted). At trial, the defendant sought to undermine the Commonwealth's evidence that there was “no legal justification or excuse” for the touching, and that the touching was indecent, i.e., “fundamentally offensive to contemporary standards of decency,” because it occurred in a gay bar. Instruction 6.500 of the Criminal Model Jury Instructions for Use in the District Court (2009). Defense counsel stated in her opening statement that “[n]ot every touch between strangers is a criminal act” and that “[i]n gay-friendly establishments, men tend to be a little bit more affectionate with one another. They tend to be a little bit more physical. And they engage in flirtatious and sometimes sexual touching.” Thereafter, in an attempt to support this argument, the defendant presented evidence on the character and decor of the bar, and the types of events held at the bar. In closing, defense counsel did not deny that the defendant touched Ryan, but instead asked the jury to consider whether the touching was “reasonable” and “acceptable, given the place, time, [and] people involved.” The jury obviously rejected this argument.
In sum, because the evidence of an indecent assault and battery was strong and the jury were instructed as the defendant requested in accordance with the defendant's trial strategy, we are “not left with uncertainty that [his] guilt has been fairly adjudicated.” Chase, 433 Mass. at 299. See Roberts, 407 Mass. at 737–739 (defendant's argument on appeal, that jury might have been reluctant to acquit without option of lesser included offense, “inconsistent” with his “all-or-nothing” trial strategy; “the instructions ... requested after the fact, might have undermined his tactical decision to seek an acquittal”). We therefore conclude that there is no substantial risk of a miscarriage of justice, and affirm the defendant's conviction for indecent assault and battery.