Opinion
15-P-855
08-17-2017
COMMONWEALTH v. Paul W. SHARTRAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery on a person with a disability and caretaker abuse on a person with a disability, in violation of G. L. c. 265, §§ 13K(a½) and 13K(d½). He appeals, arguing error in the denial of his motions for required findings of not guilty and in the judge's jury instructions. He also contends that he received ineffective assistance of counsel, and that the cumulative effect of the errors requires reversal. We affirm.
The defendant was found not guilty of assault with intent to rape.
Background. "When the evidence is viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found as follows." Commonwealth v. Cruz, 88 Mass. App. Ct. 206, 207 (2015). In August, 2012, the victim resided at a residential nursing facility in Lee. She suffered from Huntington's Disease, which is a degenerative disease that causes a loss of muscle control. The victim was in the advanced stages of the disease, close to the end of her life, and she "was completely dependent on other people to take care of her." The victim also had contracted C-diff, a contagious bacterial infection that causes "just really awful diarrhea." The defendant was a certified nursing assistant (CNA) who worked at the facility.
The victim could not speak or swallow (she was fed through a gastric tube), and she could not position her own body. She could not open her mouth. "It ha[d] to be opened for her."
On the evening of August 11 and into the early morning of August 12, 2012, the defendant was working in the victim's unit with licensed practical nurse Mawuli Homevor and CNA Alexander Woodard. Around 12:30 A.M. , the defendant asked Woodard if C-diff is contagious through saliva. Woodard responded that it is not. About one hour later, after Homevor realized that he had not seen the defendant for more than thirty minutes, Homevor walked down the wing assigned to the defendant and observed that the victim's door was closed. Thinking that the defendant was caring for the residents in that room, Homevor returned to the nurse's station. Twenty minutes later, when Homevor still had not seen the defendant, he returned to the victim's room. The door was still closed.
The victim shared a room with one other person.
Homevor became concerned because, he testified, "no treatment takes one hour." He entered the victim's room and saw that her "Posey bed" was open. Her privacy screen was drawn and he could hear the victim mumbling. Homevor pulled the curtain aside and saw the defendant standing at the edge of the bed with the victim positioned on her side, facing him. The defendant was holding his exposed penis in his left hand and the victim's head with his right hand. Homevor "saw [the defendant] trying to—forcing his penis inside [the victim's] mouth." When Homevor asked the defendant what he was doing, the defendant jumped and turned away. Homevor said, "[D]on't you have any compassion for the lady?" and the defendant responded that "he [was] not hurting her but he ha[d] a problem." When Homevor pressed the bell to summon Woodard, the defendant asked Homevor to "keep it between us," stating that "he is not going to do that again."
A Posey bed is a bed with a canopy that completely encloses it. The netting around the bed is zippered closed, to keep a patient from falling out. Providers access patients by unzipping the canopy and lowering the netting.
Homevor then reported what he had seen to a supervisor, who asked that all three wait for her to arrive. However, the defendant was not located in the building. Sometime later, the defendant telephoned the facility and spoke to Woodard. He told Woodard that he was "being framed."
Discussion. At trial, the defendant moved for required findings of not guilty on grounds of insufficient evidence (1) that he mistreated or neglected the victim, and (2) that he was her primary caretaker. The judge denied both motions. On appeal, the defendant argues that the word "harm," as found in the statutory definition of "abuse," G. L. c. 265, § 13K(a ), inserted by St. 2004, c. 501, § 3, is unconstitutionally vague as applied to him. He also argues that there was insufficient evidence that his touching of the victim harmed her or was harmful or offensive.
"A statute is unconstitutionally vague as applied if it would have failed to place a person of ordinary intelligence on notice that his or her actions or omissions are criminal under the statute, or if the statute fails to provide law enforcement officers with clear guidelines." Commonwealth v. Chapman, 433 Mass. 481, 487 (2001). Because the defendant did not move for required findings on this basis, we review his "as-applied" statutory challenge for a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 355 n.8 (2015).
General Laws c. 265, § 13K(d½), inserted by St. 2004, c. 501, § 3, criminalizes a caretaker's wanton or reckless acts or omissions if they result in "abuse" upon a disabled person. "Abuse" means "physical contact which either harms or creates a substantial likelihood of harm." G. L. c. 265, § 13K(a ), inserted by St. 2004, c. 501, § 3. The "harm" caused by "abuse" is something other than "substantial impairment of the physical condition." G. L. c. 265, § 13K(a ), inserted by St. 1995, c. 297, § 4 (defining "[b]odily injury"). It "includes, but is not limited to, death, physical injury, pain or psychological injury." 105 Code Mass. Regs. § 155.03 (2000) (defining "harm"). "Psychological injury includes, but is not limited to, conduct which coerces or intimidates a patient or resident, or which subjects that patient or resident to scorn, ridicule, humiliation, or produces a noticeable level of mental or emotional distress." Ibid.
Drawing all reasonable inferences from the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. at 676-677, the defendant, a CNA employed to care for the victim, closed the door to her room and remained there for longer than a treatment would take. He unzipped her protective bed cover, manipulated her body into a position she could not have achieved voluntarily, and manipulated open her mouth. The defendant then held his exposed penis in one hand and the victim's head in the other. Because she could not speak, the victim's mumbles reasonably could be understood to constitute her protest. Upon being discovered, the defendant stated that he was not hurting the victim but that he had a "problem." He immediately left the scene. Given all of that, we are satisfied that "[t]he defendant was on notice that the manner in which [ ]he conducted [him]self [that night] was criminal under the statute." Commonwealth v. Chapman, 433 Mass. at 487.
The evidence here clearly permitted "a rational trier of fact [to] f [ind] the essential elements of the crime[s] beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). The defendant was employed as a CNA on the victim's unit. See G. L. c. 265, § 13K(a ), as amended by St. 2004, c. 501, § 4 (defining "caretaker"). There is no dispute that the defendant touched her. The jury could have inferred from the victim's mumbling that she neither consented to nor welcomed the defendant's touching. , See Commonwealth v. Burke, 390 Mass. 480, 482 (1983) ("[e]very battery includes an assault"); Commonwealth v. Cohen, 55 Mass. App. Ct. 358, 359 (2002) (battery requires proof "that, without justification or excuse, and without consent, the defendant intentionally committed a touching, however slight, that was offensive to the victim"). If credited by the jury, the defendant's statements to Homevor tended to "establish his guilt," Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957), and he exhibited consciousness of his guilt when he fled from the facility. See Commonwealth v. Vick, 454 Mass. 418, 426 (2009). Inferences to be drawn "from circumstantial evidence ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). Considering the state of the evidence both at the close of the Commonwealth's case and at the close of all evidence, Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006), we see no error, and therefore no substantial risk of a miscarriage of justice, in the denial of the defendant's motions for required findings of not guilty.
We note that the judge's instruction on this element, that "[i]t may be inferred that a person who receives monetary or personal benefit or gain as a result of a bargained for agreement to be responsible for providing primary and substantial assistance for the care of a person with a disability is a caretaker," was an accurate statement of the law. See G. L. c. 265, § 13K(a ) (defining "caretaker"). The judge merely paraphrased the statutory language. There was no error, and no risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The jury also could infer from the evidence that the victim lacked the capacity to consent to the defendant's actions. See Commonwealth v. Burke, 390 Mass. 480, 484 (1983).
We reject the defendant's argument that his convictions could not be based on evidence that he held his exposed penis close to the victim's face because the jury acquitted him of assault with the intent to rape. The jurors convicted the defendant of assault and battery. We cannot know why they acquitted him on the more serious charge and, even if they were not persuaded on some element of assault with intent to rape, their verdict is justified by evidence that the defendant manipulated the victim's body and held her head close to his penis. See Commonwealth v. Burke, 390 Mass. 480, 483 (1983) ("The affront to the victim's personal integrity is what makes the touching offensive").
As G. L. c. 265, § 13K, and G. L. c. 265, § 13J, are "substantively identical," Commonwealth v. LaBrie, 473 Mass. 754, 766 n.24 (2016), and "there is no basis for interpreting ‘assault and battery’ in G. L. c. 265, § 13J, in a manner different from the interpretation applicable to ‘assault and battery’ under G. L. c. 265, § 13A," Commonwealth v. Cabral, 46 Mass. App. Ct. 917, 918 (1999), "assault and battery" under § 13K has the same meaning as "assault and battery" under § 13A.
The defendant's remaining claims require little discussion. Any failure by the trial judge to instruct the jury that an "offensive" touching requires a lack of consent could not have created a substantial risk of a miscarriage of justice, Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), because there was no evidence from which the jury could infer that the victim consented. The defendant has not moved for a new trial, see Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), and the factual basis for his claim that trial counsel rendered ineffective assistance does not "appear[ ] indisputably on the trial record." Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). "Since we have found no errors, ... there is no cumulative effect." Commonwealth v. Gagliardi, 418 Mass. 562, 572 (1994), cert. denied, 513 U.S. 1091 (1995).
Trial counsel was not ineffective for failing to object to Homevor's testimony that he previously had reported the defendant for improperly moving a patient, because the defense at trial was that Homevor, motivated by personal animus arising out of the earlier incident, lied about the defendant's actions on the night of the assault. A decision by counsel not to object to evidence which lays the foundation for the defense is not "manifestly unreasonable." Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002).
Judgments affirmed.