Com. v. Bucaulis

• Decision Date: 24 February 1978
• Citation: 6 Mass.App.Ct. 59,373 N.E.2d 221
• Parties: COMMONWEALTH v. George BUCAULIS. 1
• Court: Appeals Court of Massachusetts

Page 221

373 N.E.2d 221

6 Mass.App.Ct. 59

COMMONWEALTH v. George BUCAULIS. ¹

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 9, 1978.

Decided Feb. 24, 1978.

Kenneth H. Tatarian, Boston (Morris M. Goldings, Boston, with him), for defendant.

Timothy P. O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and KEVILLE and BROWN, JJ.

HALE, Chief Justice.

The defendant was convicted in a District Court on a complaint charging him with knowingly having suffered the presence of certain females for the purpose of unlawfully having sexual intercourse in premises under his control in violation of G.L. c. 272, § 6. Upon claiming an appeal the defendant was again tried along with one Connie Peria before a jury in the Superior Court. ² He was again found guilty of violating G.L. c. 272, § 6, and now appeals, arguing several assignments of error.

1. We address first the defendant's claim that the judge erred in denying his motions for a directed verdict of not guilty and his motion to set aside the verdict of guilty in that the Commonwealth had failed to present sufficient evidence from which the jury could have concluded that the defendant was guilty of the offense charged. This contention leads us to inquire whether the evidence, read in the light most favorable to the Commonwealth, was sufficient to warrant a finding of guilty. Commonwealth v. Mangula, 2 Mass.App. 785, 786, 322 N.E.2d 177 (1975).

There was evidence admitted against the defendant from which the jury could have found the following facts. The defendant was the president and a director of the United Food Corporation, which does business as the Two O'Clock Lounge in the "Combat Zone" of Boston. The defendant also served as manager and principal representative of the lounge with full authority to control the premises described in the liquor license. As manager, the defendant was usually present and in charge of the lounge during business hours. He was present in the lounge during the events at issue in this case.

The defendant's managerial responsibilities included arranging for entertainment and keeping track of all the "girls" who were employed by the lounge. The primary form of entertainment in the lounge was provided by female performers who stripped and danced in the nude. When those entertainers were not performing, they mingled with the customers and attempted to convince them to purchase bottles of champagne at prices ranging from $6.25 to $150. Peria was employed by the lounge as such a performer at a salary of $100 a week.

In the late afternoon of October 14, 1976, a male customer, one Wolfe, spoke with a barmaid in the main room of the lounge. As the result of that conversation the barmaid summoned Peria, who appeared wearing a white negligee. Wolfe then had a conversation with Peria and the barmaid, as the result of which Wolfe paid Peria $50. She in turn gave the money to the barmaid. Peria then led Wolfe into a room in the back of the lounge. That room was darkened and otherwise unoccupied, as the bar located therein was not usually in operation during the afternoon. In a booth in that room Peria performed an act of fellatio on Wolfe. A champagne bottle and two glasses were later found in the booth. The bottle was partially empty, and there was champagne in each of the glasses.

At about 4:00 P. M. two police officers attached to the vice control unit of the Boston police department entered the lounge and were met by the defendant. The three proceeded to the rear of the premises and were engaged in conversation when Peria, clad in a white negligee, came running from the back room. About ten to fifteen seconds later Wolfe emerged from the same room. Wolfe immediately addressed the officers and the defendant, claiming that after the completion of the act of fellatio he had discovered that his wallet was missing and that it had been stolen. ³

As a result of the information gathered by the officers in this conversation, criminal complaints issued against Peria and the defendant.

The offense defined by G.L. c. 272, § 6, ⁴ may be analyzed as requiring the proof of three elements: (1) that the defendant owned, managed or assisted in the management or control of certain premises; (2) that a female was present on those premises for the purpose of unlawfully having sexual intercourse, and (3) that the defendant induced or knowingly suffered the female's presence on the premises for that purpose. We consider the evidence introduced by the Commonwealth in this case to be sufficient to support the jury's finding that the defendant was guilty of the alleged offense. See Commonwealth v. Martin, 304 Mass. 320, 322, 23 N.E.2d 876 (1939).

The defendant does not seriously contend that the Commonwealth failed to present sufficient evidence as to the first element of the offense. There was ample evidence of the defendant's management and responsibility for the lounge premises. The defendant does, however, challenge the sufficiency of the evidence on the second element. He argues that the Commonwealth proved only that Peria was employed by the lounge as an entertainer and that at most the evidence indicates Peria's willingness to engage in sexual activity rather than her "purpose" to be so engaged. We do not agree. Peria's employment as an entertainer in the lounge does not rule out the inference that her duties also included the performance of sexual services. Given the type of establishment, Peria's occupation and costume, and her response to the barmaid's call and subsequent performance of fellatio for payment, it was open for the jury to determine as a matter of fact that Peria was available for sexual intercourse with customers who desired such service.

The defendant also challenges the sufficiency of the evidence introduced by the Commonwealth with regard to the third element of the offense. He cites the case of Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944), for the proposition that the proof of knowledge required to support a verdict of guilty in certain criminal offenses is not made out when the facts proven are as consistent with an innocent explanation as with a guilty one. The defendant claims that as there was no evidence that he either participated in or was aware of the transaction between Peria, Wolfe and the barmaid, the Commonwealth's evidence could fairly be characterized as establishing both his ignorance of the transaction and his innocence of the offense.

We regard the Altenhaus case as distinguishable on its facts. The evidence in the present case indicates a transaction for sexual services performed on licensed premises, which was undertaken openly at the main bar of the lounge during regular business hours by two employees normally under the direct supervision of the defendant. In view of the apparent openness of this transaction the jury could reasonably infer that the fifty dollars paid to the barmaid was payment for more than champagne and that the lounge made a profit on the sexual aspects of the transaction. Given these and all the other circumstances in the case, the jury could reasonably conclude that the defendant, as manager of the lounge, was aware of and acquiesced in his employees' illicit sexual activities.

2. The defendant also contends that his motions for a directed verdict of not guilty and his motion to set aside the verdict of guilty should have been allowed on the ground that the Commonwealth had failed to satisfy the requirement under G.L. c. 272, § 11, that "(a) person shall not be convicted under sections two to six (of chapter 272), inclusive, upon the evidence of one witness only, unless his testimony is corroborated in a material particular." We do not agree that the quoted provision had any application in the circumstances of this case.

The testimony of two police officers regarding their observations of Peria's and Wolfe's emergence, within seconds of each other, from the back room of the lounge and the officers' discovery of a bottle of champagne and two glasses in a booth in the back room served to corroborate Wolfe's testimony as to what transpired between Peria and himself. This in turn constituted sufficient corroboration of a "material particular" of Wolfe's testimony for the purposes of G.L. c. 272, § 11. Cf. Commonwealth v. Taschetta, 252 Mass. 158, 160, 147 N.E. 553 (1925) (testimony by defense witnesses that defendant had taken a woman to a house in Springfield and that she had subsequently left with him, found sufficient in relation to G.L. c. 272, § 11, to corroborate woman's testimony of defendant's conduct while in the house in prosecution for violation of G.L. c. 272, § 2). There was no error in the denial of the motions.

3. The defendant argues next that G.L. c. 272, § 6, the statute under which he was charged, is impermissibly vague in violation of both the Fourteenth Amendment to the United States Constitution and art. 12 of the Declaration of Rights. He claims that the standard defined under the statutory prohibition of a "purpose of unlawfully having sexual intercourse" is so ambiguous as to preclude fair notice or warning to potential offenders of the type of conduct which is proscribed. In addition to this alleged facial invalidity, the defendant contends that the statute is impermissibly vague as applied to the circumstances of this case. He claims that in light of recent rulings that certain penal statutes do not reach sexual conduct which occurs between consenting adults in private, see e. g. Commonwealth v. Balthazar, 366 Mass. 298, 302, 318 N.E.2d 478 (1974), habeas corpus granted sub nom. Balthazar v. Superior Court, 428 F.Supp. 425 (D.Mass.1977), he could not have been on notice that it was "unlawful" for Peria to engage in sexual activity with Wolfe in a darkened and otherwise unoccupied room. The defendant argues finally that the term "sexual intercourse," as employed in the statute, is commonly understood as...