Com. v. Lavigne

• Decision Date: 12 March 1997
• Docket Number: No. 96-P-520,96-P-520
• Citation: 42 Mass.App.Ct. 313,676 N.E.2d 1170
• Parties: COMMONWEALTH v. James E. LAVIGNE.
• Court: Appeals Court of Massachusetts

Page 1170

676 N.E.2d 1170

42 Mass.App.Ct. 313

COMMONWEALTH v. James E. LAVIGNE.

No. 96-P-520.

Appeals Court of Massachusetts Plymouth.

Argued Sept. 18, 1996.

Decided March 12, 1997.

David Michael Butler, Quincy, for defendant.

Robert C. Thompson, Assistant District Attorney, for Commonwealth.

Before IRELAND, LAURENCE and FLANNERY, JJ.

LAURENCE, Justice.

Erik, a seventeen year old high school junior, decided to hitchhike home from his after-school job when he got out of work late in the afternoon of a cold December day. He was offered a ride by the defendant, James E. Lavigne, and entered the front passenger seat of the defendant's car. After a brief conversation about Erik's studies and plans to become an electrician, the defendant asked Erik if he "wanted to make some money." Assuming that the defendant was interested in having some electrical work done, Erik inquired "doing what?" At that point, the defendant put his right hand on Erik's upper left thigh, within a few inches of the genitals, reached down into the inner area of the thigh, and massaged the area in a manner Erik later testified "was like I'd give my girlfriend."

Erik pushed the defendant's hand away, saying, "No, I don't do that." The defendant then asked Erik if he "had ever tried it before." In response to Erik's repeated protest that "I don't do that," the defendant asked if Erik "had ever like thought about it." Shortly thereafter, upon Erik's request, the defendant let him out of the car. Erik soon contacted the police regarding the incident, and the defendant was eventually charged with a nonconsensual "indecent assault and battery on a person who has attained age fourteen," in violation of G.L. c. 265, § 13H, as inserted by St.1980, c. 459, § 2, and "offer[ing] to pay another person to engage in sexual conduct," contrary to G.L. c. 272, § 53A, as inserted by St.1983, c. 66, § 2.

The defendant was convicted of both charges after a District Court bench trial, at which the facts described above were presented through Erik's testimony and a courtroom demonstration by Erik of where and how the defendant had touched him. The defendant's appeal postulates the insufficiency of evidence to establish the essential elements of either crime. He contends that what he did was not indecent as matter of law because it did not involve a commonly understood "private part"; and that the "momentar[y] touch[ing] of [Erik's] thigh and ... general comments about making some money" could not be construed as soliciting any type of sexual conduct involving commonly understood private parts.

Unpersuaded by the defendant's arguments, we affirm his convictions.

1. Indecent assault and battery. The test for indecent assault and battery--a statutory crime without distinct common law antecedent or relevant legislative history--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, 640 N.E.2d 116 (1994), S.C. 420 Mass. 508, 650 N.E.2d 1268 (1995), quoting from Commonwealth v. De La Cruz, 15 Mass.App.Ct. 52, 59, 443 N.E.2d 427 (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, 369 N.E.2d 707 (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, 567 N.E.2d 939 (1991), quoting from Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43, 477 N.E.2d 1061 (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, 640 N.E.2d 116, quoting from Commonwealth v. Jasmin, 396 Mass. 653, 655, 487 N.E.2d 1383 (1986).

Under this standard, the Commonwealth satisfied its burden of proving beyond a reasonable doubt that the defendant "committed an intentional, unprivileged and indecent touching of the victim." Commonwealth v. Mosby, 30 Mass.App.Ct. at 184, 567 N.E.2d 939, quoting from Commonwealth v. Perretti, 20 Mass.App.Ct. at 43, 477 N.E.2d 1061. The judge found--a determination not claimed by the defendant to be legally erroneous or factually unwarranted--that the defendant had, deliberately and intentionally touched Erik "fairly high up on his thigh. It was over the top of his thigh and it reached down ... as [Erik] demonstrated it, into the inner area of the thigh and ... the defendant's hands or fingers were within three inches of [Erik's] genitals."

The "inner thigh" is, under our contemporary views of personal integrity and privacy--whether clothed or unclothed--a body part that our law views as requiring protection from improper touching. See G.L. c. 12, § 11L, as inserted by St.1994, c. 360 (penalizing various forms of undesirable "sexual contact" with patients by health care professionals, including the "intentional touching ... of the patient's ... genital area, groin, [or] inner thigh ... or the clothing covering any of these body parts"). See also Commonwealth v. Mosby, 30 Mass.App.Ct. at 184, 567 N.E.2d 939 (construing Commonwealth v. De La Cruz, 15 Mass.App.Ct. at 59, 443 N.E.2d 427, as holding that "the intentional, unjustified touching of private areas such as 'the breasts, abdomen, buttocks, thighs, and pubic area ...' constitutes an indecent assault and battery"); Model Jury Instructions for Use in the District Court, Instruction 5.403 (1995) (an unjustified touching of another person is indecent "if it involves touching portions of the anatomy commonly thought private, such as a person's genital area or buttocks, or ... breasts"). Cf. State v. Samson, 388 A.2d 60, 63 (Me.1978) (indecent touching of young girl's "crotch" by placing hand on the outside of her pants is as "abhorrent to society" as a touching of the flesh and is not insulated from the reach of the criminal statute); People v. Graydon, 129 Misc.2d 265, 492 N.Y.S.2d 903 (Crim.Ct.1985) (the leg is an "intimate" body part, the unconsented-to rubbing of which is statutory "sexual abuse in the second degree").

The judge was entitled to find, on the evidence he heard and viewed, that the defendant's touching had not merely involved the inner thigh but, because of the proximity of the defendant's fingers to Erik's genitals, had actually extended to the "genital area," the "pubic area," or the "groin" area, as commonly understood. See The American Heritage Dictionary of The English Language 798 ("groin.... The crease or hollow at the juncture of the inner part of each thigh with the trunk, together with the adjacent region and often including the external genitals") and 1464 (3d ed.1992) ("pubic.... Of, relating to, or located in the region of the pubis.... The forward portion of either of the hipbones, at the juncture...