Opinion
18-P-1408
05-09-2019
COMMONWEALTH v. CHRISTIAN D. BARRETO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In November of 2017 the defendant was convicted by a District Court jury of one count of indecent assault and battery on a child under the age of fourteen. On appeal the defendant argues that the evidence was insufficient to prove the touching was intentional, and not accidental, because it occurred while the defendant and the child purportedly were wrestling. We affirm.
Background. In the light most favorable to the Commonwealth, the jury could have found the following facts. The victim's family and the defendant's family had known each other for over twenty years, and although they were not related they were close and considered themselves family members. When the victim was ten and eleven years old her mother would leave her with the defendant and his family on Wednesday nights while the victim's mother worked late. Also on Wednesday nights the defendant's wife would attend church services, leaving the defendant alone with his daughter, his son, and the victim. It is during this time that the assaults occurred.
The victim testified to three separate incidents. In the first incident the defendant, his daughter, and the victim were "play wrestling" one evening, and the defendant placed his hand next to the victim's vagina and then began touching her there. The victim explained that, due to her young age, she did not immediately realize what had occurred, and believed it could have been a mistake. Two weeks later the defendant's behavior escalated. The defendant touched the victim's chest and vagina while they wrestled, which the victim described as "more intense" than before.
The victim did, however, remove herself from the situation by telling the defendant she was tired and wanted to stop playing.
The third incident occurred the following Wednesday, when the defendant approached the victim and began tickling her while the defendant's daughter was in the bathroom and his son was not home. The victim ended up on the floor with the defendant on top of her. The defendant then placed his hands beneath the victim's shirt, touching her chest "to a point where [the victim] realized that this shouldn't be happening." The victim slapped the defendant and stated that she was going to tell her mother what happened -- to which the defendant reacted with shock and replied, "I'm sorry. I'm sorry."
At trial the victim stated, in regards to the defendant's reaction, "[He was] [s]hocked in a way, like, he knew that he shouldn't be doing what he was doing."
Finally, the victim testified that some days after the third incident the victim confronted the defendant about his behavior. The defendant attempted to explain his behavior by alleging that "something [similar had] happened to him." The defendant then asked the victim to pull her pants down, to which she refused and left.
The defendant moved for a required finding of not guilty at the close of the commonwealth's case, which was denied. Two counts of indecent assault and battery on a child under fourteen were submitted to the jury -- one for touching the victim's chest and the other for touching her vagina. The jury returned a not guilty verdict for touching the victim's chest, and a guilty verdict for touching her vagina. The defendant now appeals.
Discussion. On appeal the defendant argues that the evidence was insufficient to prove that the touching was intentional because it occurred while he was play wrestling with the victim. The defendant argues that we should conclude that a touching under those circumstances was accidental, and that no other evidence established his intent. We disagree, because the evidence surrounding the incidents sufficiently demonstrated the defendant's intention to commit an indecent assault and battery.
The defendant concedes that the other elements of an indecent assault and battery on a child under fourteen were satisfied. See G. L. c. 265, § 13B.
We review the denial of a motion for a required finding to determine whether, after viewing the evidence in the light most favorable to the Commonwealth, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Beal, 474 Mass. 341, 345 (2016), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove the element of intent the Commonwealth must show that the defendant "had a conscious purpose" to commit an indecent assault on the victim. Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010). In the absence of direct evidence, intent can be inferred from the circumstances surrounding the incident. Commonwealth v. Holbrook, 86 Mass. App. Ct. 391, 393 (2014). Even otherwise innocent behavior, such as kissing, can be criminal in light of the circumstances. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 309-310 (2005) (kissing younger nieces in private with open mouth held sufficient); Commonwealth v. Holman, 51 Mass. App. Ct. 786, 792-793 (2001) (rubbing buttocks of twelve year old while hugging her held sufficient).
Contrary to the defendant's argument, the evidence here showed considerably more than innocent wrestling. Indeed, there was ample evidence from which the jury could infer intent -- not only from the victim's direct testimony but also from the defendant's pattern of escalating behavior, the surreptitiousness of his actions, and his consciousness of guilt when confronted. The victim testified that while she initially thought the first incident could have been a mistake, the subsequent incidents were "more intense," and included more obvious touchings of her private areas. See Commonwealth v. Sineiro, 432 Mass. 735, 738 (2000) (holding sufficient evidence of intent where victim testified initially that acts were accidental but later clarified testimony); Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 431 (1985) (pattern of indecent behavior is admissible to prove intent). The defendant also took steps to conceal his behavior and acted surreptitiously, including only committing the acts on evenings when his wife was not home and others were not in the room. See Vazquez, 65 Mass. App. Ct. at 309-310 (defendant's practice of surreptitiously kissing younger nieces on the mouth was sufficient to establish intent). In addition, the jury could infer intent from the defendant's reaction when the victim threatened to tell her mother, see A.P. v. M.T., 92 Mass. App. Ct. 156, 172 (2017) (Kafker, C.J., concurring) (noting that intent may be inferred from evidence of consciousness of guilt), and from the defendant's later conduct, when confronted by the victim, in which he asked her to pull down her pants and expose herself. Finally, we note that the judge gave clear instructions on the definition of intent, as well as the definition of an accident.
Judgment affirmed.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 9, 2019.