Opinion
16-P-289
05-12-2017
COMMONWEALTH v. Angel ORTIZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgments after his convictions by a jury of indecent assault and battery on a child and enticement of a child. We affirm.
Background. The jury could have found the following facts. The defendant, who was twenty-six years old, and the victim, who was twelve, first communicated on the Web site MySpace and later through text messaging. The victim told the defendant that she was fourteen years old, and she believed him to be sixteen. The defendant told the victim that he wanted to spend his birthday with her and, in the early morning of July 31, 2009, the two agreed that the defendant, who lived in Chelsea, would drive to meet the victim, who lived in Northborough. Around 2:30 a.m., the victim snuck out of her parents' home and walked about one-half mile up the street to meet the defendant in his vehicle. The victim got into the car and the defendant drove to a small dirt parking lot chosen by the victim. The defendant told the victim that she "smelled good" and asked for a hug; the victim told the defendant, "We should have some fun." The defendant touched the victim's "butt" and put his hands inside her pants. He also touched her breasts. At some point, the defendant asked the victim if she wanted to drink vodka, which he supplied, but she declined. The victim testified that she and the defendant engaged in oral and vaginal sex, and that he had been prepared with a condom.
On cross-examination, the victim agreed with defense counsel that she had "invited" the defendant to meet her in Northborough.
When the victim looked at her cellular telephone, she realized that she had missed calls from her father. She got out of the vehicle and the defendant drove away. The victim telephoned her father, who picked her up. She told him at first that she went for a walk because she felt sick, but when pressed further, she told her father that she "had sex with somebody named Angel" and that it was her idea. Her father brought the victim to a hospital and, later, at the Northborough police station, she identified the defendant from a photographic array. Posing as the victim, a Northborough detective sent text messages to the defendant. In one response, the defendant wrote, "Thanks, hun, and sorry I left. I didn't want to get you in trouble."
The defendant was indicted on four counts: (1) rape of a child; (2) rape of a child, aggravated by age difference; (3) indecent assault and battery on a child; and (4) enticement of a child under age sixteen. The jury acquitted him of the rape charges and returned guilty verdicts on the indecent assault and battery and enticement charges. The defendant now appeals.
Jury instructions on indecent assault and battery. The defendant first argues that the trial judge was required to give a specific unanimity instruction, expressly requiring the jury to decide unanimously which particular alleged act of touching formed the basis for their guilty verdict. In the absence of a request from defense counsel, however—and there was none here—the judge was not required to give such an instruction. See Commonwealth v. Comtois, 399 Mass. 668, 676 n.11 (1987). Nor did the defendant object to the instructions as given. "[A] judge's failure to give a specific unanimity instruction sua sponte does not automatically give rise to a substantial risk of a miscarriage of justice," where the evidence was sufficient to withstand a motion for a required finding of not guilty on each of the charged offenses. Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719 (2007). Such was the case here, where the victim testified clearly that the defendant touched both her "butt," as well as her breasts. The jury were entitled to credit her testimony.
The defendant next argues that the judge's substantive instruction on the indecent element of the crime improperly included examples of conduct similar to that of which the defendant was accused. Without objection, the judge instructed as follows:
"What is indecent should be measured by common understanding and practices. For example, the fondling of a person's breast, touching his or her buttocks, or reaching between his or her legs may constitute indecent assault and battery. In determining whether the Commonwealth has met its burden in establishing the indecent element of this offense, you may consider the defendant's alleged actions."
These instructions closely mirrored instruction 3.6 of the Massachusetts Superior Court Criminal Practice Jury Instructions (2013). Moreover, these examples are not analogous to the judge's recitation of specific testimony in Commonwealth v. Kane, 19 Mass. App. Ct. 129, 138-139 (1984), on which the defendant relies. In that case, the judge recited at length the details of the Commonwealth's case, echoing the prosecutor's closing statement, and instructed the jury that it was their responsibility to find such facts. Ibid. Here, the judge merely gave generic examples of indecent conduct in the context of his instructions on all of the elements of this and the other crimes with which the defendant was charged, including examples of the conduct that would satisfy such elements. See Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 703 (2007) (jurors would understand illustrative example in context of entire instruction). The judge in this case did not make reference to the facts in evidence, and his instructions correctly stated the law. There was no error and thus no substantial risk of a miscarriage of justice.
The case of Commonwealth v. Pina, 430 Mass. 266, 274 (1999), does not aid the defendant. The judge's examples in that case, while they "bore some resemblance" to the facts, were not error and caused no prejudice, because they concerned an element not in dispute (premeditation). Similarly, here, the defendant did not contest the indecency of the acts alleged, and thus the use of examples from the model jury instructions caused him no prejudice. His defense, rather, was that he and the victim did not have sex (he was acquitted on the rape charges) and that he did not know she was a minor.
Finally, the defendant argues that trial counsel was ineffective for failing to request a specific unanimity instruction and failing to object to the examples of indecent conduct. As neither aspect of the judge's instructions created a substantial risk of a miscarriage of justice, it was not ineffective for counsel to fail to object. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) ("[I]f an omission of counsel does not present a substantial risk of a miscarriage of justice ... there is no basis for an ineffective assistance of counsel claim").
Sufficiency of evidence of enticement. The defendant challenges the trial judge's denial of his motion for a required finding of not guilty on the charge of enticement. He argues that the evidence was insufficient to satisfy the element of enticement, which means "to lure, induce, persuade, tempt, incite, solicit, coax or invite" someone under the age of sixteen to enter or remain in a place, including a vehicle. G. L. c. 265, § 26C, inserted by St. 2002, c. 385, § 3. His argument hinges on the victim's unequivocal testimony that she initiated contact with the defendant, invited him to visit her, and suggested that they have sex.
The crime of enticement, when alleged as committed with the intent to commit a crime that contains an age component (i.e., indecent assault and battery on a child) requires proof that the defendant intended that his act take place with a victim who was underage. See Commonwealth v. Filopoulos, 451 Mass. 234, 238-239 (2008). See also Massachusetts Superior Court Criminal Practice Jury Instructions § 3.19 & n.7 (2013). On appeal, the defendant makes no argument that he did not know the victim was underage, nor that he did not intend to commit one of the crimes enumerated in § 26C.
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We do not agree that evidence that the victim initiated the contact or the sexual encounter precludes a conviction of enticement of a child. Enticement may be committed by "words, gestures, or other means." Commonwealth v. Disler, 451 Mass. 216, 222 (2008). A rational jury could have concluded that the defendant enticed the victim, within the meaning of the statute, to sneak out of her home and to enter his vehicle by telling her that he wanted to spend his birthday together and by providing his vehicle for the encounter. The jury also could have inferred intent to coax the victim to remain in the vehicle from his offering her alcohol once inside. Furthermore, the statutory purpose of § 26C is to protect minors from precisely the type of conduct involved in this case. See Commonwealth v. Hall, 80 Mass. App. Ct. 317, 324 (2011) ("[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"). The motion for a required finding of not guilty of enticement was properly denied.
Inquiry of juror. After the victim's father testified, a juror informed the judge that, four years earlier, the juror's father had been the head coach of a baseball team that included the victim's brother, and that the juror had regularly acted as assistant coach of that team. The judge held a voir dire, during which the juror said that he had not recognized the family's name at the outset of trial and that he had seen the brother only every other weekend for one year. The juror stated that he did not think this would affect his ability to be impartial in the case. Both defense counsel and the prosecutor suggested additional questions, which the judge asked, inquiring whether the juror had ever had conversations with the victim's brother, her father, or his own father about the incident that was the subject of trial, or about something similar having happened to a player's sister. The juror answered in the negative, stating that he only spoke to the kids about baseball. The judge concluded that the coaching of the victim's brother had no relevance to the juror's ability to serve, and that he remained indifferent.
The defendant now claims that the inquiry by the judge was "cursory at best," and that the juror should have been subject to "enhanced scrutiny" or dismissed. However, the defendant has put forth no evidence that the juror was not, in fact, impartial, as required by the case on which he relies. See Commonwealth v. Amirault, 399 Mass. 617, 626 (1987) ("The defendant has the burden of showing that the juror was not impartial and must do so by a preponderance of the evidence"). Neither has he suggested what questions, if any, should have been asked but were omitted from the inquiry. Furthermore, after questioning the juror, the judge asked defense counsel whether she had any concerns, to which she stated, "I don't." The judge's finding that the juror remained indifferent was met with no objection, and we must defer to that finding in the absence of clear error. See Commonwealth v. McCowen, 458 Mass. 461, 493-494 (2010), citing Amirault, supra.
Judgments affirmed.