Opinion
10-P-1471
03-02-2012
COMMONWEALTH v. ROBERT D. GRISWOLD.
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 was convicted of a number of crimes, of which he now appeals only from his conviction for enticement of a child under sixteen, G. L. c. 265, § 26C. The crimes involved multiple victims; however, the enticement charge at issue here is the only conviction involving this particular boy (whom we shall refer to as the victim). On appeal, the defendant argues that the evidence was insufficient in two respects: First, he contends that the crime requires that the victim be enticed to 'enter, exit or remain' in a particular place at a particular time and that there was no evidence of such a particularized invitation. Second, he argues that there was insufficient evidence that he enticed the victim with the intention to indecently assault him while he was under fourteen. Because we agree with the latter argument, we vacate the child enticement conviction and remand for retrial on the second theory that was pressed by the Commonwealth at trial (and which the defendant does not contest on appeal) namely, enticement with the intention of raping a child under the age of sixteen.
The defendant was also convicted of rape of a child (two counts), G. L. c. 265, § 23, improper storage of a firearm (two counts), G. L. c. 140, § 131L(a)&(b), indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and dissemination of matter harmful to a minor (two counts), G. L. c. 272, § 28.
The defendant was also acquitted on two counts of indecent assault and battery on a child under fourteen.
The defendant also argues that the trial judge gave an erroneous instruction on child enticement. In light of our disposition, we do not reach this argument.
Background. We recite the facts relating to the enticement charge in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant invited the then thirteen-year-old victim (who lived next door at that time) to his house to look at his guitar. The victim was in the defendant's house only briefly when his mother called him home and told him not to go there again. There was no other contact between the defendant and the victim before the boy turned fourteen.
When the victim was fourteen, he began to visit the defendant's home approximately once every two weeks. The defendant and the victim would watch movies, talk, and smoke marijuana (sometimes supplied by the defendant, sometimes by the victim). The victim also introduced the defendant to two of his friends, both younger than him (the victim), and these boys would sometimes join the victim at the defendant's house. The defendant engaged in sexual acts with one of the friends. On at least ten occasions, the defendant discussed these activities in intimate and explicit detail with the victim. There was also evidence that the defendant preyed upon other young boys (as young as ten or eleven) and also engaged them in sexual activity. There was, however, no evidence that any of the acts involving other children took place while the victim was under the age of fourteen.
The defendant told the victim how many times he had had sex with the friend, how large the friend's penis was, and how they had kissed.
On two occasions when the victim was fourteen, the defendant asked if 'I [the victim] wanted to try anything out, or if I was curious I could always come to him, but that he would never force me to do anything or try to go around my security, I guess.' The victim understood this to mean that 'I would be able to try sexual activity with him [the defendant] if I wanted to.' The victim described his reaction to this proposition as being 'a little weirded out. I mean, it didn't freak me out too much because it was like a simple proposition. So I just kind of said, okay, thank you, but I think I'm all set.' These conversations took place in the defendant's living room.
When asked to explain why he continued to go to the defendant's house thereafter, the victim testified that 'it didn't really bother me when he said it. I mean, I didn't feel like he was trying to force me into anything. So I would just go over to smoke and hang out, because he's still a nice guy, and I wasn't really afraid of him. . . . [I liked t]he freedom. He would let me just hang out and smoke in his house. And I wouldn't really have to worry about any parents.'
Discussion. The crime of enticement of a child requires the Commonwealth to prove that the defendant (1) enticed, (2) 'a child under the age of 16, or someone he believes to be a child under the age of 16, [3] to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space, [4] with the intent that he or another person will violate' certain enumerated criminal statutes. G. L. c. 265, § 26C(b). As to the fourth element, the Commonwealth proceeded on two theories: intent to rape a child under the age of sixteen, G. L. c. 265, § 23; and intent to commit indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. We are concerned here only with the third and fourth elements of the crime.
For purposes of the statute, the word 'entice' means 'to lure, induce, persuade, tempt, incite, solicit, coax or invite.' G. L. c. 265, § 26C(a).
Or 'any offense that has as an element the use or attempted use of force.' G. L. c. 265, § 26C(b).
The defendant argues that G. L. c. 265, § 26C, requires proof that a victim be enticed to a particular place at a particular time. Although the defendant is correct that most of our cases have involved enticement to a specific location at a particular time, see Commonwealth v. Disler, 451 Mass. 216, 220 (2008); Commonwealth v. Filopoulos, 451 Mass. 234, 235 (2008); Commonwealth v. LaPlante, 73 Mass. App. Ct. 199, 200-201 (2008), such specificity is not required either under the statute or our caselaw. Enticement of a child does not require precision of time and place. An open invitation for sexual activity extended in the same (and only) place where the defendant has been meeting (and grooming) the child is enough to establish that the child is being enticed to 'enter, exit, or remain' within a dwelling as required by the statute. In the circumstances of this case, a jury could reasonably conclude that the defendant was enticing the victim to his home, where all of their encounters had taken place and where the enticement occurred. It matters not that the invitation was open-ended as to time.
The defendant relies primarily on Commonwealth v. Hall, 80 Mass. App. Ct. 317 (2011), in which we stated that 'a primary purpose of the child enticement statute . . . is to provide further protection for children against the risks of danger or harm that lurk when a child is lured to a place chosen and potentially controlled by a predator.' Id. at 324. That statement must be read and understood in the context of the facts, where the defendant was convicted of child enticement because he requested and received nude photos of an eleven-year-old girl from a cell phone. The target offense of the enticement charge, posing a child in a state of nudity, G. L. c. 272, § 29A, was one that could be (and was in that case) accomplished without actual physical contact between the defendant and the victim, and in a place of the victim's choosing. Id. at 323-324. Presented with those facts, we reversed the conviction on the ground that the third element of the crime of enticement had not been satisfied; the child had not been enticed to any place at all. Here, by contrast, the target offenses (rape of a child under sixteen and indecent assault and battery on a child under fourteen) necessarily require physical contact between the defendant and the victim, and a jury could reasonably find that the defendant's home was the intended locus of the enticement.
The defendant also argues that there was insufficient evidence that he intended to commit an indecent assault or battery on the victim while he was under fourteen. We agree. When the target crime in a child enticement charge depends on the victim's age, the Commonwealth must prove that the defendant 'intended that the object of his advances be underage,' even when the target offense is otherwise a strict liability crime. Disler, 451 Mass. at 228. Thus, to prove that the defendant enticed the victim with the intent to commit indecent assault and battery on a child under fourteen, the Commonwealth had to prove beyond a reasonable doubt that the defendant intended 'the object of his advances to be a child under the age of fourteen.' Commonwealth v. Filopoulos, 451 Mass. 234, 243 (2008).
The enticement here occurred when the defendant extended an invitation to engage in sexual activity to the fourteen-year-old victim. Although an inference might be drawn generally about the defendant's willingness or intention to engage in sexual activity with young children from the fact that he engaged in such activity with boys younger than the victim, the Commonwealth acknowledges that there was no evidence that the defendant's sexual offenses against the other boys occurred while the victim was under fourteen. The defendant and the victim had contact only once while the boy was thirteen, when the defendant invited him to see his guitar. Although this was potentially an act of grooming, standing alone it is insufficient to support an inference beyond a reasonable doubt that the defendant intended to commit an indecent assault and battery while the victim was under fourteen.
The enticement charge was submitted to the jury on theories of intent to commit rape of a child under the age of sixteen and indecent assault and battery on a child under fourteen. The jury returned a general verdict that did not specify the theory upon which they convicted the defendant of enticement. The defendant argues that the enticement conviction must be reversed because 'a verdict cannot stand unless it appears that the jury reached their verdict on a theory for which there was factual support.' Commonwealth v. Plunkett, 422 Mass. 634, 635 (1996). Because the defendant did not request a specific unanimity instruction, we review to determine whether the judge's failure to give sua sponte such an instruction resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719 (2007). We conclude that it did because the Commonwealth argued both theories of conviction, and the jury were explicitly instructed that they could convict on either theory. We agree with the Commonwealth's frank acknowledgement that we must reverse the conviction if the evidence was not sufficient on both of the target offenses. See Commonwealth v. Flynn, 420 Mass. 810, 818 (1995).
The defendant did not move for a required finding of not guilty on the ground that the evidence was insufficient with respect to his intent to commit an indecent assault and battery on the victim while he was under fourteen. 'However, findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.' Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
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For these reasons, we reverse the conviction of enticement of a child in violation of G. L. c. 265, § 26C. However, because the defendant does not challenge the sufficiency of the evidence with respect to the defendant's intent to commit rape of a child, he may be retried on that theory.
Judgment reversed.
Verdict set aside.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),