Opinion
No. 12–P–64.
2013-11-6
COMMONWEALTH v. Robert F. SULLIVAN.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert F. Sullivan, was convicted by a jury of one count of indecent assault and battery on a child under the age of fourteen. The defendant argues three issues on appeal. First, he contends that the evidence was insufficient to support a conviction of indecent assault and battery. Second, the defendant argues the trial judge abused his discretion by admitting the first complaint witness's testimony because this testimony contained details that were not included in the child's own testimony. Finally, the defendant maintains that the judge abused his discretion in giving the jury a modified Tuey–Rodriquez charge three hours after the jury began deliberations when the jury reported that it was at an impasse. As the trial judge did not err, we affirm the defendant's conviction.
See Commonwealth v. Rodriquez, 364 Mass. 87, 101–102 (1973) (Appendix).
The defendant claims the judge should have entered a required finding of not guilty both because there was insufficient evidence to prove he kissed the child and because these acts do not fall within the scope of indecent assault and battery. “We consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). The child, a thirteen year old at the time, became close to the defendant through participation in the Boy Scouts. The defendant, then sixty-one years old, was actively involved in leading scouting activities and was also a friend of the child's family. On June 21, 2009, the defendant drove the child and two other scouts back from a camping trip. After dropping off the other scouts and discovering that the child's family had not yet arrived home, the defendant brought the boy to the defendant's home, where the boy helped carry camping gear inside. In the home, the boy complained of a sore back, and the defendant picked him up, placed him on the defendant's bed, and gave him a back massage. The defendant subsequently kissed him on the lips for about five seconds, lifted up the child's shirt and kissed him on his bare stomach below the navel for several seconds, then kissed his lips again. All of these kisses were with a closed mouth. Later that evening, the child told his parents what had happened.
The direct evidence at trial—the child's testimony describing the defendant's conduct—provided a sufficient basis to permit a reasonable jury to conclude beyond a reasonable doubt that the alleged acts occurred. Nonetheless, the defendant further contends that his kisses could constitute only assault and battery, not indecent assault and battery.
The crime of indecent assault and battery requires touching that is “indecent,” as that word is commonly understood—an objective standard rooted in common understandings and practices. See Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 314–315 (1997). Our decisions place the defendant's conduct—a sixty-one year old boy scout leader kissing a thirteen year old scout on the lips and below the navel—squarely within the law's prohibition. Specifically, this court has held that “intentional, unjustified touching of private areas,” including the “abdomen,” “constitutes an indecent assault and battery.” Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 (1991), quoting from Commonwealth v. De La Cruz, 15 Mass.App.Ct. 52, 59 (1982). The abdomen encompasses the area of the stomach below the navel. See Merriam–Webster's Collegiate Dictionary (11th ed.2003) (defining “abdomen” as “the part of the body between the thorax and the pelvis”). The proximity of this area to the boy's pubic region is also a relevant consideration. Cf. Lavigne, supra at 316. Under the circumstances, the defendant's kiss to the child's lower abdomen, in conjunction with the two kisses to the lips, provided the jury with sufficient grounds to find the defendant guilty of indecent assault and battery.
The defendant next argues that he was unfairly prejudiced by the first complaint witness's testimony, which contained certain factual details not mentioned in the child's own testimony. We review the trial judge's decision to admit this evidence for abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
We discern no abuse of discretion, as the rule does not require first complaint testimony to perfectly mirror the victim's testimony. See Commonwealth v. King, 445 Mass. 217, 235 (2005). Here, the first complaint testimony did not “significantly enlarge[ ] the scope of the facts of the alleged assault as described in the complainant's testimony.” Id. at 234. Differences between the recollections of the victim and the first complaint witness go “to the weight of the evidence, not to its admissibility.” Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 415 (2010). Finally, the judge carefully instructed the jury not to use any of the mother's testimony as substantive evidence.
The defendant further contends that the judge prejudicially interfered with the jury's deliberations by prematurely giving a modified Tuey–Rodriquez instruction. Because the defendant timely objected to the judge's instruction, we review this action for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
After approximately three hours of deliberations, the jury submitted a note to the judge stating that it had reached an impasse . The judge stated, “When a jury sends a note suggesting that they are not able to agree, even though its deliberations have not been lengthy and have not been thorough, it's my practice to give an instruction that may assist them in reaching a verdict.” He then gave them an instruction based on Tuey–Rodriquez and the ABA approved instruction. See Commonwealth v. Rodriquez, 364 Mass. 87, 101–103 (1973). The jury deliberated for about four more hours before returning with their verdict.
Against the judge's instructions, the note also included a preliminary vote, which indicated that eight jurors would find the defendant guilty while four supported acquittal. The substance of the note is not an issue on appeal.
The trial judge has broad discretion in deciding whether the Tuey–Rodriquez charge should be given at a particular time. See Commonwealth v. O'Brien, 65 Mass.App.Ct. 291, 295 (2005). The defendant cites no precedent, and we find none, to support his argument that a Tuey–Rodriquez instruction may not be given “when jurors appear to be running into difficulty reaching a verdict,” but before a judge finds that the deliberations have been lengthy and thorough. Rodriquez, supra at 101. Moreover, the judge's modified instruction was tailored to avoid pressuring jurors to give up their positions simply to achieve unanimity. For the most part, his instruction closely tracked the ABA illustrative charge, which the Rodriquez court expressly approved for use even before the jury begin their deliberations. See ibid. Furthermore, the small portion of the judge's instructions drawn from the original Tuey–Rodriquez charge lacks the “sting” that may be felt with the full rendition of that instruction. Cf. id. at 100. We discern no error in the judge's decision to give his instruction under the circumstances of the trial.
Judgment affirmed.