Opinion
10-P-1447
12-05-2011
COMMONWEALTH v. DANIEL M. LAK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of open and gross lewdness in violation of G. L. c. 272, § 16. On appeal, he argues that his motion for a required finding of not guilty should have been allowed and that the prosecutor's improper argument and the judge's jury instructions deprived him of a fair trial. We affirm.
Background. The jury could have found the following. On Wednesday, August 19, 2008, Justin Santerre was working an overnight shift at the Castle Adolescent Treatment Center (Center) in Brockton. At approximately 1:00 A. M., Santerre was walking around the Center and an adjacent building, which was under construction, when he heard 'sexual noises' coming from behind the building under construction. He walked toward the noises and discovered the defendant laying on top of a wood pallet. Santerre saw the defendant masturbating. He was 'shocked and surprised' and 'screamed' at the defendant to leave the property. Santerre then returned to the Center.
A residential treatment center for teenagers with substance abuse problems.
A nurse inside the Center called the police while Santerre and his coworker Brooke Anderson-Williams (Williams) went back outside to see if the defendant had left. Despite having been told to leave the property, when Santerre returned with Williams, the defendant was still gratifying himself in a sexual manner on the pallet.
Discussion. 1. Required finding of not guilty. In reviewing a ruling on a motion for a required finding of not guilty, we analyze the evidence in the light most favorable to the Commonwealth to determine whether the Commonwealth presented sufficient evidence to permit the jury to infer the existence of the essential elements of the crime charged. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that the judge's denial of his motion was erroneous because the Commonwealth failed to prove that he intended public exposure or recklessly disregarded a substantial risk of such exposure. More specifically, he states that his actions were not 'open' because they took place behind an unoccupied building on private property at night.
'To be 'open,' under G. L. c. 272, § 16, the conduct need not occur in a public place, but must occur in the presence of another person who can be alarmed or shocked.' Commonwealth v. Quinn, 439 Mass. 492, 496 n.9 (2003). The Commonwealth presented, and defense counsel elicited, evidence that on a weeknight, the defendant was masturbating behind a building under construction that was adjacent to a fully staffed building. Such evidence could support an inference that the defendant either intended public exposure or recklessly disregarded a substantial risk that he would be discovered. See Commonwealth v. Moran, 453 Mass. 880, 885 (2009) (intent 'may be inferred from the facts and circumstances presented'). 'The defendant's arguments are in reality directed toward the weight and credibility of the evidence, a matter wholly within the province of the jury.' Commonwealth v. Nardone, 406 Mass. 123, 129-130 (1989). Therefore, there was no error.
Santerre testified that it took from one to one and one-half minutes to walk between the buildings.
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2. Prosecutor's closing argument. The defendant claims that he was prejudiced by the prosecutor's misstatement of the law in her closing argument. Specifically, the defendant faults the prosecutor for stating that the defendant's alleged intoxication was 'not important to what he was doing that night.' As noted by the Commonwealth, the defendant's failure to object at trial or request a curative instruction suggests that neither the defendant nor the judge considered the comment improper at the time. See Commonwealth v. Toro, 395 Mass. 354, 359-360 (1985). We nevertheless review the alleged error for a substantial risk of a miscarriage of justice. Commonwealth v. Miranda, 458 Mass. 100, 114 (2010).
While 'any effects of the consumption of drugs, including alcohol, may be considered whenever the Commonwealth has the burden of proving the defendant's intent,' Commonwealth v. Sires, 413 Mass. 292, 299 (1992), intoxication will bear on a defendant's specific intent only if it is 'debilitating.' Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001). Here, the evidence was that the defendant was not placed under arrest, was allowed to leave, and did so on his bicycle. While Santerre and Williams believed that the defendant was intoxicated, there was no evidence of the defendant's consumption of alcohol or drugs on the evening in question. The police did not 'request the [defendant] to submit to reasonable tests of coordination, coherency of speech, and breath,' suggesting that they did not consider him to be 'incapacitated' such that protective custody was warranted. G. L. c. 111B, § 8, as appearing in St. 1979,
c. 597, § 1. Because the evidence did not support a reasonable inference that the defendant was so intoxicated that he 'could not form the requisite criminal intent,' the prosecutor did not misstate the law. Chaleumphong, supra, quoting from Commonwealth v. James, 424 Mass. 770, 789 (1997). Moreover, the defense at trial was not that the defendant was too intoxicated to form the requisite intent. Rather, the defendant argued that the defendant did not commit the offense with which he was charged and that the witnesses were mistaken. Accordingly, the prosecutor's statement did not create a substantial risk of a miscarriage of justice.
3. Remaining arguments. The defendant's remaining arguments require little discussion. We need not consider the defendant's purported appeal from the judge's failure to instruct on the definition of privacy because the defendant did not adequately address that issue in his brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). We may disregard the defendant's claim of ineffective assistance of counsel for the same reason, and also because it is raised for the first time on appeal. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), and cases cited.
Judgment affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),