Com. v. Castillo

• Decision Date: 09 August 2002
• Docket Number: No. 01-P-478.,01-P-478.
• Citation: 55 Mass. App. Ct. 563,772 N.E.2d 1093
• Parties: COMMONWEALTH v. Jesus CASTILLO.
• Court: Appeals Court of Massachusetts

772 N.E.2d 1093

55 Mass. App. Ct. 563

COMMONWEALTH v. Jesus CASTILLO.

No. 01-P-478.

Appeals Court of Massachusetts, Worcester.

Argued March 21, 2002.

Decided August 9, 2002.

James Hammerschmith, Committee for Public Counsel Services, for the defendant.

John J. Conte, District Attorney, & Sandra L. Hautanen, Assistant District Attorney, for the Commonwealth, submitted a brief.

Present: LAURENCE, GILLERMAN, & MILLS, JJ.

MILLS, J.

The defendant was charged in two identically-worded indictments with indecent assault and battery on a person fourteen years of age or older, G.L. c. 265, § 13H. A jury returned a guilty verdict on one indictment, and a not guilty verdict on the other. The defendant now claims that the evidence that he forced his tongue into a fourteen year old girl's mouth was insufficient to establish the offense of indecent assault and battery, and that because it is not possible to tell which alleged incident supported the one guilty verdict, his conviction must be reversed. He also claims error in the judge's refusal to instruct that an indecent touch must be proven as to the "complainant's private parts ... such as the breasts, abdomen, buttocks, thighs or pubic area.'" We affirm.

Background. The jury could have found the following facts. Tiffany (a pseudonym), a fourteen year old female, spent the night, for the first and only time, at the home of her friend, Alice (a pseudonym). On the following afternoon, Alice's stepfather, the defendant (in his mid-thirties) was running some errands around the house and at some point, while doing laundry, called from the basement of the home requesting an extension cord. Tiffany took the cord to the basement and, after a brief conversation, the defendant "grabbed [her] hand ... pulled [her] towards him and ... started kissing [her] ... [o]n the lips, with his tongue." Tiffany testified that the defendant "had his tongue out of his mouth and put his tongue in [her] mouth."

When Tiffany was touched, she was "scared," "in total shock," and did not know what to do. After the touching, she physically "pushed him away" and told him not to do that. The defendant then held her hand and said, "Don't tell anybody. I don't want news to travel." Tiffany further testified that she did not expect the defendant to kiss her, had never kissed the defendant in the past, and had never talked to the defendant about kissing her. Tiffany subsequently returned to the living room.

Shortly thereafter, the defendant called for Tiffany to return to the basement. Instead of complying, she went upstairs to the second floor, ostensibly "to go to the bathroom," but actually she went to Alice's bedroom, from which she telephoned her mother to request a ride home. While she was in Alice's bedroom, the defendant knocked on the door and Tiffany opened it "because [she] didn't know what else to do. [She] didn't know if it might have been [Alice]." When she opened the door, the defendant appeared, took Tiffany's hand, pulled her toward him and touched her in the same way as before, with his tongue and on her lips. Tiffany told the defendant not to do that and attempted to push him away, but the defendant held her closer and placed his hand down her shirt and into her bra. She testified that he touched her breast and the nipple of her breast. Tiffany again resisted, and the defendant withdrew his hand from her shirt, held her hand and told her not to tell anyone.

The forced mouth and tongue touching. The defendant first claims that there was insufficient evidence to establish the indecency element of indecent assault and battery under G.L. c. 265, § 13H, as to the forced touching in the basement. He argues that his behavior may have been offensive, but was not indecent because the touching did not involve "portions of the anatomy commonly thought private," whereas the word "indecent" must be read very narrowly and, in consideration of case law, be restricted to the touching of "the breasts, abdomen, buttocks, thighs, and pubic area of a female." See Commonwealth v. De La Cruz, 15 Mass.App.Ct. 52, 59, 443 N.E.2d 427 (1982). The defendant argues that the contact in the basement was not indecent because it was brief and nonviolent, and although it was without consent, was not a touching of the "sexual or other intimate parts" of Tiffany's person. We hold that the evidence of the defendant's behavior in the basement and in the second floor bedroom was sufficient to establish separate offenses under the statute, even though the jury found him not guilty of one of the matching indictments. Accordingly, it makes no difference which incident was the basis for the jury's verdict of guilty. See Commonwealth v. Comtois, 399 Mass. 668, 676, 506 N.E.2d 503 (1987).

"The type of conduct that constitutes indecent assault and battery on a person over fourteen years of age is not defined in G.L. c. 265, § 13H." Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184, 567 N.E.2d 939 (1991). This court, however, has stated:

"The test for indecent assault and battery ... is an objective one that is bounded by "contemporary moral values". ... The measure of indecency is "common understanding and practices.'" Commonwealth v. Conefrey, 37 Mass.App.Ct. 290, 300 (1994), S.C., 420 Mass. 508 (1995), quoting from Commonwealth v. De La Cruz, 15 Mass.App. Ct. 52, 59 (1982). A touching is indecent when, judged by the `normative standard' of societal mores, it is `violative of social and behavioral expectations,' Commonwealth v. Gallant, 373 Mass. 577, 580-581, 589 (1977), in a manner `which [is] fundamentally offensive to contemporary moral values ... [and] which the common sense of society would regard as immodest, immoral and improper.' Commonwealth v. Mosby, 30 Mass.App. Ct. 181, 184 (1991), quoting from Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43 (1985). So defined, the term `indecent' affords a `reasonable opportunity for a person of ordinary intelligence to know what is prohibited.' Commonwealth v. Conefrey, 37 Mass.App.Ct. at 302 , quoting from Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986)."

Commonwealth v. Lavigne, 42 Mass.App. Ct. 313, 314-315, 676 N.E.2d 1170 (1997).

When evaluating evidence of alleged indecent behavior, we consider all of the circumstances. Id. at 316, 676 N.E.2d 1170. Further, the list of anatomical parts and areas referred to in Commonwealth v. Mosby, supra at 185, 567 N.E.2d 939, and the Model Jury Instructions for Use in the District Court, Instruction 5.403 (1995), as being private areas has never been declared to be exhaustive as the defendant contends.¹ Such sources may be read to include other parts of the body — whether clothed or unclothed — that, if intentionally and unjustifiably touched, would violate "our contemporary views of personal integrity and privacy." Commonwealth v. Lavigne, supra at 315, 676 N.E.2d 1170. Intentional, unjustified, and nonconsensual insertion of one's tongue into the mouth of another can, under certain circumstances, constitute such "assaultive conduct which society deems indecent."² Id. at 316, 676 N.E.2d 1170.

In this case, there is a considerable age disparity between the defendant (mid-thirties) and the victim (fourteen), and an obvious disparity in experience and sophistication. There was also an authority disparity: the defendant was the stepfather of the victim's friend. Further, the first forced tongue insertion took place surreptitiously in the basement while others were upstairs and unaware. It was, moreover, effected by...