Opinion
20-P-179
01-24-2022
COMMONWEALTH v. John GREENE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a person age fourteen or older, in violation of G. L. c. 265, § 13H. On appeal, the defendant argues that the evidence presented at trial was insufficient to prove that he intended to touch the victim in an indecent manner. He also argues that the judge improperly instructed the jury on the element of intent. We affirm.
Background. We summarize the facts the jury could have found as follows. On January 31, 2018, the defendant was admitted to Boston Medical Center for congestive heart failure. At the time of his admission, he had difficulty breathing. As part of the defendant's treatment, the victim, a registered nurse assigned to care for the defendant, entered the defendant's room to give him a breathing treatment. The treatment required the use of a nebulizer and associated tubing. The plug for the nebulizer was located behind the defendant on the right-hand side of the hospital bed. To establish a proper connection, the victim had to "reach over the IV tubing and over the table to plug in the tubing into the wall." During the victim's initial attempt to connect the equipment, he "felt something brush against [his] groin" and took a step back believing he had not given the defendant, who was a large man that weighed about three hundred pounds, enough room. When the victim reached over a second time, the defendant grabbed his genitals. Specifically, the victim testified that he felt the defendant "cupping" his penis. The defendant then asked the victim for his phone number. The victim refused to do so and told the defendant that his conduct was "inappropriate."
A nebulizer is a drug delivery device used to administer medication in the form of a mist inhaled into the lungs to help the patient breathe.
Soon thereafter, the victim spoke with his clinical educator, Donald Johnstone, and told him what had happened. Johnstone testified as the Commonwealth's first complaint witness. Johnstone relayed that as the victim described the incident, he appeared to be "red in the face, shocked, [and] bewildered" about what happened despite being a "laid-back guy" who was "carefree" and not easily rattled. After their conversation, the victim decided to finish his shift because he did not want to burden his fellow nurses by forcing them to take on his patients. However, the victim did not reenter the defendant's hospital room without a nurse or nursing assistant present.
The defendant testified on his own behalf and claimed that he touched the victim by accident. It was not disputed that the defendant was a large man. Given his size, the defendant filled the hospital bed and his arms hung over the sides. He testified that when the victim came into his hospital room to administer the breathing treatment, he reached out to stretch his arms and "accidentally hit [the victim] in the groin area." According to the defendant, his fingers "rubbed against [the victim's] groin area" one time. The defendant denied grabbing the victim's penis or intentionally touching him. He acknowledged that he asked the victim for his phone number, but claimed he did so because the victim was a "very good nurse" who was "congenial" to him.
The defendant testified that he weighed 311 pounds at the time of the incident.
Discussion. 1. Sufficiency of the evidence. We review the sufficiency of the evidence under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We consider 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 crimes beyond a reasonable doubt" (citation and emphasis omitted). Id. at 677.
"To prove indecent assault and battery on a person age fourteen or older, the Commonwealth is required to establish that the defendant committed ‘an intentional, unprivileged, and indecent touching of the victim.’ " Commonwealth v. Benedito, 95 Mass. App. Ct. 548, 549 (2019), quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018).
The defendant argues that the evidence of his intent to commit an indecent assault and battery is insufficient for two reasons. First, he claims that the evidence was inadequate because there was no evidence of the touching other than the victim's testimony. This argument is unavailing. It is well settled that a victim's testimony provides sufficient direct evidence to support a conviction. See Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 78 n.3 (2005) (noting that "[t]he victim's testimony, of course, provides sufficient direct evidence to support the jury's conclusion").
Second, the defendant argues the evidence is insufficient to support the conviction because the Commonwealth failed to disprove that the touching was an accident beyond a reasonable doubt. We are not persuaded. A rational juror could have found that a brushing of the victim's groin area followed by a "cupping" of the victim's penis and a request for the victim's phone number was not accidental conduct.
Accordingly, we conclude that the evidence, when viewed in the light most favorable to the Commonwealth and taken together with the reasonable inferences drawn therefrom, was sufficient to support the jury's conclusion.
2. Jury instructions. The defendant argues that the judge erroneously defined the element of intent in her final instructions to the jury. Because the defendant asked for the instruction as given and did not object to it, our review is limited to determining whether an error occurred and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013).
The judge instructed the jury as follows:
"The second element that the Commonwealth must prove beyond a reasonable doubt is that the defendant intended to commit the touching. You must determine whether the defendant intentionally committed the act or whether what occurred was an accident. An accident is defined as an unexpected happening that occurs without intention or design on the defendant's part. It means a sudden, unexpected event that takes place without the defendant intending it. Stated otherwise, an accident is an unintentional event occurring through inadvertence, mistake or negligence. If an act isn't accidental, it is not a crime. When considering the evidence, bear in mind that the defendant does not have to prove anything. The Commonwealth must prove beyond a reasonable doubt that what occurred was intentional and not an accident.
"If the Commonwealth has failed to prove to you beyond a reasonable doubt that what occurred was not an accident, then you must find the defendant not guilty. You, the jury, may or may not infer the defendant's intent by considering all of the facts and circumstances as well as the evidence of the defendant's conduct offered during the trial."
The defendant asserts that by incorporating the definition of accident into the instruction on intent, the judge failed to adhere to the definition of intent set forth in § 1.10 of the Massachusetts Superior Court Criminal Practice Jury Instructions (3d ed. 2018), and, as a result, the instruction on intent, an essential element of the crime, was inaccurate.
"Our review of claimed jury instruction errors requires us to evaluate the instructions as whole, looking for the interpretation a reasonable juror would place on the judge's words" (quotation and citation omitted). Arias, 84 Mass. App. Ct. at 465. "We do not consider bits and pieces of the instructions in isolation" (quotation and citation omitted). Id.
Here, reviewing the instructions as a whole, we conclude that the jury were adequately instructed. "The intent element is satisfied upon proof that the defendant intended -- had a conscious purpose ... -- to commit an indecent or offensive touching without [the victim's] consent" (quotation and citation omitted). Kennedy, 478 Mass. at 810. In this case, the judge clearly informed the jury of the Commonwealth's burden to prove each element of the crime, including intent to commit the touching, beyond a reasonable doubt. In particular, the judge stated, "The second element that the Commonwealth must prove beyond a reasonable doubt is that the defendant intended to commit the touching." The judge went on to say that "[t]he Commonwealth must prove beyond a reasonable doubt that what occurred was intentional and not an accident." We are satisfied that the judge's instruction on intent conveyed to the jury that the defendant had to have a conscious purpose to commit an indecent touching without the victim's consent.
Next, the defendant argues, correctly, that the judge misspoke at one point during her instructions to the jury. At one point, the judge said, "If an act isn't accidental, it is not a crime" instead of "If an act is accidental, it is not a crime." However, the misstatement amounts to no more than a slip of the tongue that did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 204 (2008) ("A mere slip of the tongue does not constitute a substantial risk of a miscarriage of justice").
Judgment affirmed.