Opinion
16-P-100
07-11-2017
COMMONWEALTH v. Oscar SANCHEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Oscar Sanchez, appeals from his convictions of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H, and open and gross lewdness and lascivious behavior, in violation of G. L. c. 272, § 16. On appeal, the defendant argues that the Commonwealth presented insufficient evidence for the jury to find him guilty of open and gross lewdness, and that the Commonwealth improperly appealed to the jury's emotions throughout the trial and during closing argument, improperly vouched for the credibility of a witness, and misstated the evidence. For the reasons that follow, we affirm the judgment on the charge of indecent assault and battery on a person over the age of fourteen. We reverse the judgment on the charge of open and gross lewdness and set aside that verdict. We remand the matter for entry of a conviction of the lesser included offense of indecent exposure and for resentencing thereon.
Background. The trial proceeded with the testimony of two witnesses—the arresting police officer and the female victim, whom we shall refer to as Amy (a pseudonym), in whose home the incident occurred. A third individual, a male visitor to the home, whom we shall refer to as Kevin (a pseudonym), who had also observed the defendant exposing himself, did not testify. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following.
Amy resided with her husband; he frequently invited people to their home to drink alcohol with him. On the night of December 11, 2012, the defendant knocked on the couple's door. Amy recognized him as a friend of her husband's. At that time, Amy's husband was "passed out" in the bedroom and Kevin was drinking in the kitchen. Amy initially did not let defendant into the home because he appeared intoxicated, but she eventually yielded to his requests and let him in.
While Amy, the defendant, and Kevin were in the kitchen, the defendant exposed his penis to them. He stroked it and commented to them about its size. Because Amy did not want to see it, she turned her head away and retreated to the bedroom, where her husband was sleeping. Kevin had also observed the defendant expose himself.
During her testimony, Amy stated that "this is embarrassing," and "my mind's racing," when describing the defendant's conduct.
At some point, Amy's husband got up to use the bathroom, and the defendant entered the bedroom. He thrust his hips at Amy and told her that he wanted to have sex with her. She then went into the living room; the defendant followed her. He touched her breasts and grabbed her crotch and buttocks. Meanwhile, Kevin went into the bathroom. The defendant followed him and said, "[B]itch, you're next."
At that point, Amy tried telephoning the police, but the defendant pulled the telephone from the wall. Amy eventually plugged the telephone back into the telephone jack and called 911. The police arrived shortly thereafter.
The responding police officer observed that Amy was sober and that both the defendant and Kevin were not. Amy told the police that defendant had touched her breasts, crotch, and buttocks. Kevin asked the officer for a restraining order against the defendant, and the defendant blurted out, "[Y]ou're my bitch." The defendant was arrested.
After the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, which the judge denied. The defense rested without putting on a case-in-chief. The judge then called a lunch recess before closing arguments.
After the lunch recess, the prosecutor informed the judge that the complaint did not specify a victim with regard to the open and gross lewdness charge but that the application for the complaint named only Kevin as the victim. The prosecutor then moved to amend the complaint to have Amy also named as a victim with regard to that charge. Defense counsel objected, arguing that in reliance on the application listing only Kevin as the victim of that offense, she confined her cross-examination of Amy to the events underlying the indecent assault and battery charge, and did not cross-examine her on the circumstances surrounding the open and gross lewdness charge. As a result, the judge denied the Commonwealth's motion to amend, and the case proceeded with only one victim named with regard to the open and gross lewdness offense—Kevin.
We note that a complaint that is "phrased in the statutory form ... is sufficiently detailed to apprise the defendant of the particular offense charged." Commonwealth v. McClaine, 367 Mass. 559, 560 (1975). A defendant may file a motion for a bill of particulars to seek any additional information that might be necessary. Ibid.
To this end, the judge instructed the jury:
"I just want to make one clarification.... [T]here may have been some confusion and I apologize for that. You have the two charges, indecent A&B, and the open and gross lewdness. On the indecent A&B, the alleged, if it's proven to your satisfaction, the alleged victim would be the woman that testified. On the second charge, the alleged victim is [Kevin], not the woman who testified."
And during the final charge, the judge reiterated:
"The alleged victim in this case is [Kevin]. In order to prove the Defendant of guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt. First, that the Defendant exposed his genitals to one or more persons. That the Defendant did so intentionally. That the Defendant did so openly, and that means that he intended public exposure or he recklessly disregarded substantial risk of public exposure so that others might be offended by such conduct. Fourth, the Defendant's act was done in such a way as to produce alarm and shock. And fifth, that if we [sic] did in fact produce alarm and shock."
1. Motion for required finding. The defendant challenges the sufficiency of the evidence as to his conviction of open and gross lewdness and lascivious behavior, asserting specifically that there was no evidence that Kevin, who was present when the defendant exposed himself and whom the Commonwealth named as the victim of the offense in the application for the complaint, experienced shock or alarm from the defendant's exposure of his genitals. We agree.
On a claim of insufficiency of the evidence, the court determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). There are five essential elements to the charge of open and gross lewdness and lascivious behavior. These are as follows: "that the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons." Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008), quoting from Commonwealth v. Kessler, 442 Mass. 770, 773 & n.4 (2004). This fifth element of the offense is what is at issue here.
The statute reads in its entirety:
"A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars."
G. L. c. 272, § 16, as amended by St. 1987, c. 43.
The offense of open and gross lewdness is "conduct-based," rather than "victim-based." See Commonwealth v. Botev, 79 Mass. App. Ct. 281, 288 (2011). As such, a person who exposes himself on one occasion and shocks or alarms multiple people would be charged with one count of open and gross lewdness. Ibid. Similarly, where the exposure occurred in the presence of several individuals, the Commonwealth need prove that only one those individuals experienced shock or alarm. Ibid. In this case, however, consistent with the Commonwealth's application for a criminal complaint, the judge held the Commonwealth to a more narrow standard of proof. The judge charged that the jury must consider that charge only as it pertained to Kevin, who did not testify, and not to Amy, who did testify. In the peculiar circumstances of this case, therefore, the judge narrowed the field of potential victims whose reaction the Commonwealth could rely to satisfy the element of "shock" or "alarm." Commonwealth v. Maguire, 476 Mass. 156, 158 (2107). We see no harm to the defendant flowing from this. See generally Commonwealth v. Hamilton, 459 Mass. 422, 430-431 (2011) (defendant not prejudiced by instruction that increased Commonwealth's burden).
In support of this more narrow proof requirement, the Commonwealth points to three pieces of evidence. It asserts that Kevin's subjective shock or alarm was demonstrated by evidence that (1) at some point during the night, Kevin beat the defendant; (2) the defendant told Kevin, "[B]itch, you're next," and "[Y]ou're my bitch"; and (3) Kevin asked the police for a restraining order against the defendant. We are not persuaded that this quantum of evidence permitted a rational jury to find that Kevin, who did not testify to the events, "personally experienced shock or alarm." Commonwealth v. Maguire, supra at 160.
The witness's testimony was not clear as to when the fight occurred and whether it was in response to the defendant exposing his genitals:
Q: "Okay. So was [Kevin] trying to assist you?"
A: "Yes, he was."
Q: "Okay. What was he doing to try to help you?"
A: "What was he doing? He—after he got out of the bathroom—"
Q: "No, before he went to the bathroom."
A: "Oh before he went to the bathroom, I don't know exactly. But he got him—I don't know if this is the time, but he beat him up one time."
Q: "Okay."
A: "He got him on the ground and—"
Q: "Okay. Now [Kevin] went to the bathroom?"
A: "Yes."
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"What is required ... is evidence that a witness personally sustained the type of ‘serious negative emotional experience’ that is stronger that ‘mere nervousness and offense.’ " Ibid., quoting from Commonwealth v. Ora, 451 Mass. 125, 127 (2008). "This requires evidence of strong negative emotions—a subjective inquiry—most commonly corroborated by an immediate physical response." Id. at 159. There was no evidence of such a reaction by Kevin here.
Amy testified that at some point in the night Kevin beat the defendant. However, she did not specify when during the night this occurred, and it is clear she never indicated that it occurred immediately following the defendant's exposing himself. Commonwealth v. Militello, 66 Mass. App. Ct. 325, 333-334 (2006) (where "boys did not experience a reaction so intense that they immediately sought to notify someone of the defendant's behavior," evidence was insufficient to establish "serious negative emotional experience" [quotation omitted] ). Kevin's request for a restraining order also did not flow immediately from the defendant's exposing himself. See ibid. Nothing in the defendant's statements to Kevin suggests a reaction from him. Accordingly, the Commonwealth's proof on that element fails.
The defendant does not challenge the sufficiency of the proof as to the other elements of the offense, nor do we see a basis for such a challenge. Accordingly, as we stated at the outset of this decision, on remand a conviction shall enter on the lesser included offense of indecent exposure. See Commonwealth v. Maguire, supra at 160 (proof of shock or alarm is element distinguishing charge of open and gross lewdness and lascivious behavior from charge of indecent exposure).
2. Prosecutor's statements during trial and closing argument. The defendant also contends that over the course of the trial and in closing argument, the prosecutor improperly appealed to the emotions and sympathies of the jury, vouched for the credibility of a witness, and misstated the evidence. He contends that these alleged errors collectively created a substantial risk of a miscarriage of justice.
In her opening statement, the prosecutor apologized to the jury for the "vulgar," "lewd," and "crude" testimony that they would hear over the course of the trial. After a witness later apologized for using vulgar language, the prosecutor said, "It's okay, I've let the jury know that it's a lewd conversation that we're going to have, okay?" In closing, the prosecutor said, "[L]ike I promised you at the beginning of this trial, what you heard today was a rather disgusting set of behaviors." The prosecutor's statements, although perhaps hyperbolic, were based on fair inferences from the evidence, and, even if they were error, they did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998), quoting from Commonwealth v. Sanna, 424 Mass. 92, 107 (1997) (" ‘[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ are not grounds for reversal").
The prosecutor also made a number of statements about Amy that the defendant now contends were in error. The prosecutor described her as someone who was not strong or confident and had difficulty saying no to people. In closing, the prosecutor stated that Amy's husband did not protect her from the defendant. These statements responded directly to defense counsel's cross-examination of Amy, where she indicated that Amy's husband failed to intervene and Kevin "stayed to protect [her] from [the defendant]." The statements were grounded in the testimony and, albeit forceful, they did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Wilson, supra.
The defendant further contends that the prosecutor vouched for Amy's credibility when she argued, "If [Amy] was going to make something up, don't you think she would have made [up] a better story? She said, why would I make that up." "Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ " Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting from Commonwealth v. Wilson, supra at 352. (1998). Here, the prosecutor's statements did no such thing. Rather, the prosecutor permissibly responded to defense counsel's attack on Amy's credibility. See Commonwealth v. Sanders, 451 Mass. 290, 297 (2008) (where defense places witness credibility at issue during closing, prosecutor is "entitled to respond within the limits of the evidence and to provide the jury with reasons for believing" witness). The statements were grounded in the testimony. "We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
Last, the defendant asserts that the prosecutor stated facts not in evidence when she argued "nobody knows where [Kevin] is today whatsoever." The prosecutor elicited testimony from the responding officer that he had not been able to locate Kevin. Amy testified that Kevin was "[j]ust an acquaintance," and that she did not know where he was. While there was no evidence that "nobody" knew where Kevin was, the jury could infer that the prosecutor was referencing the testimony of Amy and the police officer. To the extent it was hyperbole, in that there was no testimony that "nobody" knew Kevin's whereabouts, the jury had "the ability to discount [the] hyperbole." Commonwealth v. Santiago, 425 Mass. 491, 495 (1997).
This case turned on witness credibility. The judge properly instructed the jury that the opening and closing statements were not evidence. Furthermore, "although not dispositive of the issue," the defendant's failure to object gives some indication that "the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Mello, 420 Mass. 375, 380 (1995) (quotation omitted). Accordingly, we see no error or miscarriage of justice.
For all these reasons, we affirm the judgment on the count of indecent assault and battery on a person over the age of fourteen. On the count charging open and gross lewdness and lascivious behavior, the judgment is reversed and the verdict is set aside. The matter is remanded for entry of a conviction on the lesser included offense of indecent exposure and for resentencing on that conviction.
So ordered.
Affirmed in part; reversed in part; remanded.