Com. v. Mosby

• Decision Date: 06 March 1991
• Docket Number: No. 90-P-747,90-P-747
• Citation: 567 N.E.2d 939,30 Mass.App.Ct. 181
• Parties: COMMONWEALTH v. David A. MOSBY.
• Court: Appeals Court of Massachusetts

Page 939

567 N.E.2d 939

30 Mass.App.Ct. 181

COMMONWEALTH v. David A. MOSBY.

No. 90-P-747.

Appeals Court of Massachusetts,

Hampshire.

Argued Nov. 7, 1990.

Decided March 6, 1991.

Joseph A. Hanofee, Northampton, for defendant.

Frederic G. Bartmon, Asst. Dist. Atty., for Com.

Before SMITH, FINE and PORADA, JJ.

SMITH, Justice.

The defendant was charged in the District Court with indecent assault and battery on a person over fourteen years of age (G.L. c. 265, § 13H). He was found guilty at a bench trial and received a six-month sentence to a house of correction, suspended, with two years' probation. He appealed to the jury-of-six session. A jury convicted him of the charge and he was sentenced to thirty days in a house of correction. The defendant appeals and alleges error in (1) the denial of his motion for a required finding of not guilty, (2) the denial of his request to cross-examine a rebuttal witness, and (3) the judge's allegedly inflammatory remark to defense counsel in front of the jury. We need not address the last issue in light of our disposition of this matter.

The complainant, an eighteen year old woman, testified that she was a student at the University of Massachusetts in Amherst. The defendant was also a student at the university. They knew each other through their participation in the university band programs. The complainant became interested in buying a trumpet that the defendant was planning to sell. The defendant telephoned her one evening between 8:30 P.M. and 9:00 P.M. and tried to persuade her to walk across campus to his dormitory room to see the trumpet. She agreed but told the defendant she would be accompanied by a male friend. The defendant requested that, if they came to his room, she leave her friend outside while they "discussed business." The complainant ultimately declined the evening invitation and agreed to view the trumpet the following morning.

The next morning, the complainant arrived at the defendant's room just as he was leaving to use the bathroom. During his absence, she watched television and went to the window to view the campus. ¹ The defendant returned and walked over to the window. The complainant asked the defendant if her dormitory could be seen from the window because she could not locate it from where she was standing. The defendant told her, "you could see it over from the other side." The complainant then testified that the defendant "placed his hand on my buttocks and he pulled me across the window." The complainant pulled away from him and asked if she could see the trumpet. The defendant complied with her request. During the negotiations for the purchase of the trumpet, the defendant told the complainant that he had been offered $300 for it, but because she was in the marching band he would let her have it for "$50 or $75 less, if." The complainant asked "if, what?" The defendant responded "if" meant if she would engage in "some extracurricular activities." The complainant then said to the defendant "Oh, so if I go to bed with you." The defendant then said to her, "Well, that's one way to put it."

The complainant rejected the suggestion and rebuked the defendant for making it. As she was leaving, the defendant put his arm around her so that, according to the complainant, his "arm was directly underneath [her] breasts." The complainant broke free and left the room. That evening she told a friend about the incident, and later she reported it to the police. Two weeks after the incident the defendant telephoned and told her that "he was sorry and that he thought he was out of line."

On cross-examination, the complainant acknowledged that at the bench trial she had testified that the defendant, while at the window, had placed his hand "close to her left butt[ock]."

The Commonwealth then called as a witness the person to whom the complainant had reported the incident. He testified that the complainant seemed "upset" when she told him of the incident. According to the witness, the complainant described to him the events leading up to the occurrence at the window. His testimony tracked the complainant's testimony up to that point. The witness testified, however, that the complainant told him that when she asked the defendant if she could see her dormitory, the defendant "put his arm around [her] and pulled her over to his side, and then ... he dropped his hand down to her waist." The witness also recounted what the complainant told him about the defendant's "proposition" in regard to lowering the price of the trumpet. His testimony on this phase was consistent with the complainant's testimony. The witness also stated that the complainant told him that as she was leaving the defendant's room, he "put his arm around her middle, right just below the breasts." The witness was not cross-examined.

In his defense, the defendant testified that, while at the window, he put his left hand "around [the complainant's] waist, and brought her over to the side of the window that [he] was standing on, so that she could see [her dormitory]." He admitted that in discussing the price of the trumpet, he told the complainant that he would take fifty dollars less than the quoted price for "extracurricular activities." The defendant testified that when the complainant asked if "extracurricular activities" meant going to bed with him, he responded, "[T]hat was a possibility." He stated that the complainant became "visibly upset" and left. The defendant denied that he touched her "underneath the breasts" or anywhere else just before she left the room. He testified that he later telephoned the complainant and apologized to her for "making that proposition to her."

1. Motion for a required finding. The defendant's motion for a required finding of not guilty was denied at the close of the Commonwealth's case and again at the close of all the evidence. The defendant claims that the judge erred because there were inconsistencies in the testimony of the Commonwealth witnesses. The defendant argues there was insufficient evidence, as matter of law, to infer the existence of the essential elements of indecent assault and battery.

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. ² A definition adopted by this court provides: "[a]n indecent assault and battery is essentially an act or series of acts which are fundamentally offensive to contemporary moral values.... [I]t is behavior which the common sense of society would regard as immodest, immoral and improper.... Thus, in order to prove indecent assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant committed an intentional, unprivileged and indecent touching of the victim." Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43-44, 477 N.E.2d 1061 (1985). It has been held that the intentional, unjustified touching of private areas such as "the breasts, abdomen, buttocks, thighs, and pubic area of a female" constitutes an indecent assault and battery. Commonwealth v. De La Cruz, 15 Mass.App.Ct. 52, 59, 443 N.E.2d 427 (1982). See also Commonwealth v. Thayer, 20 Mass.App.Ct. 234, 238, 479 N.E.2d 213 (1985).

In reviewing a denial of a motion for a required finding of not guilty, we must look at the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

In this case, the Commonwealth introduced evidence that the defendant placed his hand on the complainant's buttocks without her consent, and almost immediately made a proposal that had distinctly sexual overtones. Based on that evidence, the jury were warranted in finding that the defendant committed an indecent assault and battery. ³ We agree with the defendant that there were inconsistencies in the testimony of the witnesses, but that fact goes to the credibility of the witnesses and does not affect the sufficiency of the evidence. Commonwealth v. Clary, 388 Mass. 583, 589, 447 N.E.2d 1217 (1983). "Once sufficient evidence is presented to warrant submission of the charges to the jury, it is for the jury alone to determine what weight will be accorded to the evidence." Commonwealth v. Hill, 387 Mass. 619, 624, 442 N.E.2d 24 (1982), quoting from Commonwealth v. Hoffer, 375 Mass. 369, 377, 377 N.E.2d 685 (1978). There was no error in the denial of defendant's motion for a required finding of not guilty.

2. Denial of right of cross-examination. The defendant claims that he was denied his right to cross-examine a rebuttal witness called by the...