Com. v. Militello

• Decision Date: 24 May 2006
• Docket Number: No. 04-P-829.,04-P-829.
• Parties: COMMONWEALTH v. Frank S. MILITELLO.
• Court: Appeals Court of Massachusetts

848 N.E.2d 406

COMMONWEALTH v. Frank S. MILITELLO.

No. 04-P-829.

Appeals Court of Massachusetts, Berkshire.

Argued August 5, 2005.

Decided May 24, 2006.

COPYRIGHT MATERIAL OMITTED

John M. Thompson for the defendant.

Raymond J. Jacoub, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, BROWN, & BERRY, JJ.

GELINAS, J.

The defendant, Frank S. Militello, appeals from his convictions by a District Court jury of (1) four counts of contributing to the delinquency of a child, in violation of G.L. c. 119, § 63; (2) one count of open and gross lewdness, in violation of G.L. c. 272, § 16; (3) four counts of disseminating matter harmful to minors, in violation of G.L. c. 272, § 28; and (4) four counts of furnishing alcoholic beverages to persons under twenty-one years of age, in violation of G.L. c. 138, § 34.

On appeal the defendant argues that (1) the jury instructions with respect to the charges of disseminating matter harmful to minors and contributing to the delinquency of a child were fatally flawed, and the failure to give a requested intoxication instruction requires reversal of all counts; (2) the evidence was insufficient to support any of the charges other than contributing to the delinquency of a child; (3) the complaints for contributing to the delinquency of a child failed to allege the requisite scienter element; (4) the cumulative impact of these errors warrants reversal; and (5) trial counsel was ineffective.

We set forth the evidence in the light most favorable to the Commonwealth, although many of the facts are, in the main, uncontroverted. The defendant resided in a house in Cheshire that he shared with M.S., among others. In June of 2002, M.S. hosted a birthday party for his older son, Tim, who was turning thirteen the next day. The defendant was among the twenty or so guests who attended, including adults and children. As the party was breaking up, Tim, his brother Gabriel, Doug, and Brian,¹ the latter three aged nine, twelve, and thirteen years, respectively, walked to an area known as "the Grove" to camp out. The area is surrounded by trees and contains a hammock, fire pit, picnic table, and a cleared area for a tent. The record is silent as to the distance from the home to the Grove, but a field must be crossed to reach it. The boys were assisted by other adults, including M.S. and the defendant, in setting up a tent and building a campfire. By about midnight only the defendant remained with the four boys. The boys asked the defendant to stay with them, because they could not continue to have a campfire without an adult being present.

Tim went to sleep in the tent. The three other boys remained outside, talking to the defendant. The defendant had been drinking beer earlier in the evening and continued to do so while talking with the boys around the campfire. Eventually, the defendant suggested that they go "skinny dipping" in a nearby pool. The three boys accompanied the defendant to the pool. The boys changed into their gym shorts, while the defendant undressed in the pool house. The defendant came out unclothed, his genitals visible to the boys, and jumped into the pool.

Although the boys went swimming, they were not comfortable with the defendant's nakedness. For example, when the defendant went to the deep end of the pool, the boys swam to the shallow end. Doug testified that when he saw the defendant, it made him feel, in his words, "[d]isgusted[,] I guess." According to Doug, the boys swam away from the defendant because, in his words, "[a]h, I guess we didn't want to be near him. I think I heard a joke about making a warm spot or something, so."

When the defendant asked Gabriel to take his shorts off, Gabriel swam away "[b]ecause [he] didn't want to get close to him because he was naked." When the defendant got out of the pool, his naked backside was visible, and Brian testified that that "made [them] feel a lot more uncomfortable and . . . about after five minutes [they] all got out because of that . . . [they] were nervous."

The group returned to the campsite and warmed up by the campfire. Tim woke up and joined them. As they were sitting around the fire, the defendant asked the boys on several occasions to get him beer from the cooler on the deck of the house, where the party had been held. The boys complied, crossing the field to the home to retrieve the beer. At one point, the defendant offered beer to the boys; Tim, Brian, and Doug each took a sip. Gabriel was attempting to take a sip of beer when the defendant bumped the bottom of the bottle, forcing the nine year old to take a gulp.

The defendant then offered to show the boys pictures from a Playboy magazine. He and the boys went to the house, and the defendant retrieved an issue of Playboy magazine from his room. They returned to the Grove, where the defendant initially showed only the three older boys pictures from the magazine, but eventually succumbed to Gabriel's badgering and showed him at least one picture.

The defendant then tried to get into the hammock to go to sleep, as the boys settled into the tent. By this time the defendant was so intoxicated that he kept falling out of the hammock. Brian and Doug tried to help him into the hammock. They eventually succeeded, and all went to sleep.

The following morning, the boys reported to M.S. "the things that happened that night," because, according to Brian, "[they] were thinking all of the stuff that [the defendant] actually did and, that made [them] nervous, and . . . [they] knew that the stuff [the defendant] did was wrong after [they] thought about it and so [they] told [M.S.] then before it was too late."

The defense called three character witnesses who worked with or supervised him in his employment at the DeSisto School, where he counseled troubled teens. The defendant also testified. He admitted showing the boys the Playboy magazine and acknowledged that he probably should have used better judgment. He claimed that he had intended to swim alone, and that he did not realize the boys were there until he had already gotten in the pool without wearing any clothes. When they arrived, the defendant said he got out immediately and put on his boxer shorts before getting back in the pool. The defendant claimed that, because of his intoxication, he did not remember giving the boys sips of beer, although he acknowledged that he asked the boys on at least one occasion to retrieve beer for him from the cooler at the house.

1. Sufficiency of the evidence. We first address the defendant's sufficiency claims, as they are dispositive of three of the categories of charges on appeal. The defendant contends that the evidence did not support the charges of disseminating matter harmful to minors, open and gross lewdness, and furnishing alcohol to minors. The challenges to each of the convictions will be addressed seriatim, along with additional facts necessary to our discussion.

a. Dissemination of matter harmful to minors. The defendant's attack on this charge focuses on the meaning of "matter harmful to minors," G.L. c. 272, § 28, as appearing in St.1982, c. 603, § 2, dissemination of which to minors is prohibited by the former statute, and the definition of which is found in G.L. c. 272, § 31, as amended by St.1982, c. 603, § 6:

"[M]atter is harmful to minors if it is obscene² or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors."

The defendant argues that the evidence was insufficient to permit the jury to conclude that the magazine had the characteristics described in any of the three sections of the definition. There was no dispute at trial, nor is there any on appeal, that the defendant showed a Playboy magazine that contained pictures of naked women to four minors. The prosecutor, however, did not introduce the magazine in evidence, and relied instead on the testimony of the four minor witnesses to describe the pictures. The jury, therefore, had to rely on the evidence provided by the four boys to make their determination whether the material was harmful to minors.

The evidence before the jury was as follows. Tim testified that he looked at the magazine with the defendant, Doug, and Brian for about ten minutes. During that time, Tim saw only one picture of a woman, who was naked from the waist up, and as he looked at the picture the defendant was talking about "what you could do to the girls and talking about their like boobs and stuff." The discussion made Tim "a little bit uncomfortable." Doug testified that he looked at the magazine for about twenty seconds and saw pictures of women who were naked on "[t]he top and the bottom." Doug was not too sure how many pictures he saw, but he testified that as the defendant was flipping through the pages, he "asked us wouldn't you want to suck those nipples."

Brian testified that he looked at the magazine for about fifteen minutes. The defendant was holding it and he kept stopping at particular pictures and asking them "if we ever, would we like to touch those boobies and stuff like that." According to Brian, "two pages had pictures of naked girls on 'em, then it had like, it was like the college girls they were dressed up like but showing their boobs and stuff like that." Brian also testified that he saw the pictures the defendant showed to Gabriel and they depicted "[f]ull pictures of complete naked girls laying down." Gabriel claimed, however, to have seen only one picture, which showed a "lady" whose "upper body" was "naked."

Ordinarily, on a challenge to the sufficiency of the evidence, we consider "whether, after viewing the evidence in the light most...