Commonwealth v. Mussari

• Decision Date: 11 June 2020
• Docket Number: No. 19-P-462,19-P-462
• Citation: 150 N.E.3d 759,97 Mass.App.Ct. 647
• Parties: COMMONWEALTH v. Terry A. MUSSARI.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 647

150 N.E.3d 759

COMMONWEALTH

v.Terry A. MUSSARI.

No. 19-P-462

Appeals Court of Massachusetts, Norfolk..

Argued March 17, 2020.

Decided June 11, 2020.

Dana Alan Curhan, Boston, for the defendant.

Jennifer K. Zalnasky, Assistant Attorney General, for the Commonwealth.

Present: Sacks, Ditkoff, & Englander, JJ.

SACKS, J.

After an undercover investigation, the defendant, Terry A. Mussari, was indicted on numerous charges arising out of her operation of three day spas. With respect to each spa, she was charged with deriving support from prostitution, G. L. c. 272, § 7 ; keeping a house of prostitution, G. L. c. 272, § 24 ; and maintaining a place of prostitution, G. L. c. 272, § 6. After a jury trial, she was convicted of two counts of deriving, two counts of keeping, and one count of maintaining, but was acquitted of the remaining prostitution-related charges.¹ On appeal, she argues that (1) there was insufficient evidence to disprove her defense of entrapment, and (2) the judge erroneously lowered the Commonwealth's burden of proof by instructing that the jury could infer the defendant's knowledge of prostitution at the spas based on her "willful blindness" to those activities. We are unpersuaded by either argument and therefore affirm the convictions.

Background. We recite the facts that the jury could have found, reserving certain details for later discussion. In April 2011, State Trooper Michael Cowin began an undercover investigation into three spas operated by the defendant: Aria Day Spa (Aria), Spa Bellissimo, and Sparkle Spa. As part of the investigation, Cowin attempted to schedule a bachelor party at the Aria. He did so through several telephone conversations with the defendant and an in-person visit to the Aria, where he and the defendant discussed most of the details.²

In the first conversation, Cowin and the defendant discussed holding a private, after-hours party for about eleven men on a particular date in October 2011. In their next conversation, the defendant volunteered that "everyone can get massages, Swedish and full body massages." She indicated that instead of the Aria's usual charge of eighty dollars per person, she would charge Cowin a "group rate" of sixty dollars per person. This was only a "door fee," and she did not get involved in the "gratuity," which was a matter "between [the client] and the therapist." Cowin asked if he could visit the Aria to see the facilities and discuss details, and the defendant readily agreed.

When they met at the Aria, the defendant asked whether Cowin was looking for "a date kind of thing, like an escort kind of thing." Cowin indicated that his friends wanted "to hang out," and the defendant stated that she did not "really know what you're talking about and how the girls are going to get paid for that." Cowin stated that he and his friends did not "want to be haggling with people, or, you know, worrying about how much we got to pay.... [T]hey want to just pay everything up front." The defendant asked, "Tip and everything?" Cowin agreed. The defendant asked, "What are they looking for," to which Cowin replied, "They want to have fun." The defendant asked, "Full body? Full body massage?" Cowin replied, "[T]hey want the full."

The defendant then asked, "They looking for sex?" Cowin replied, "Yeah, well, I mean, they all want to get taken care of, and have fun, you know." The defendant responded, "Right, okay. Right." She then clarified that "they don't want to deal with haggling in the room?" Cowin agreed, saying he did not want any of his friends saying afterwards that "the girl I was with ... didn't know what I was talking about." The defendant replied, "So you want it set up? ... Right, okay." Cowin said he would collect money from his friends and then pay the entire amount in advance, which the defendant said was "fine."

The defendant stated that each woman would want to receive a tip of eighty dollars. She stated, "I have eleven girls, easy, yeah.... And I'm picking the girls too, because I know who's -- believe me, I know." Cowin requested two women for the groom, to which the defendant replied, "Yeah, that's easy. I'll get you a dirty dozen." After further discussion of the total amount that Cowin would pay, the defendant assured him that there would be "no haggling" and agreed that "they'll know what to do. Everybody will know ... that it's all taken care of .... I'm going to lay it all out for them."

Cowin asked, "We talking like the full, everything?" The defendant said, "I can't really get into that ... and I'm not sure all your boys are about that." Cowin assured her that "everybody wants to know that ... that's the option ... if they like the girl." The defendant responded, "I just know that everybody ... is happy. I don't know to what extent, that kind of thing." Cowin sought to clarify that there would be "nobody that's going to be in a room and clam up and say ... oh, all I do is rub their shoulders." The defendant stated, "No, no, no. No, no, no, no, no, no, no. The girls that I have, they've been with me for years and I know." She added that she did not "really want to get involved" in "tell[ing] them what to do." But she agreed with Cowin that "if they like the guy," then "it just happen[s]. Yeah, that's right." Cowin then sought and received from the defendant an additional assurance that "nobody's going to go in and say all I'm doing is a massage."

On the date set for the party, Cowin arrived alone at the Aria, met with the defendant, and paid her the amount due. After telling her that the other men were having dinner and would be arriving shortly, Cowin was taken into a room for his massage. A woman entered and asked Cowin to take off his clothes. He removed all but his boxer shorts, and he asked what he would get for the eighty-dollar tip he had paid up front; she answered, "[A] massage and a hand job." She asked Cowin if he "wanted to have somebody else for full service," and he replied that he did. She then left the room and told the defendant that Cowin was asking for "full service," whereupon the defendant sent another woman into the room. This woman told Cowin that the usual tip for "everything" was more than eighty dollars, but she ultimately agreed to have sexual intercourse for the eighty-dollar tip he had already paid. The woman told Cowin to take off his boxer shorts, and she also began taking her clothes off.³ Shortly thereafter, other troopers entered and began making arrests. Condoms were observed in other massage rooms.

At trial, seven women who worked at the Aria or the Spa Bellissimo, and who were at the bachelor party to work, testified about prior occasions on which they had performed sexual acts with massage clients.⁴ They were paid small amounts by the defendant and received tips directly from clients, with the size of the tip varying according to whether and what types of sex acts were performed. Those acts sometimes included intercourse, which the women also referred to as "full service," or "everything."

The defendant had instructed one woman to "[m]ake the money in the rooms," and had referred to herself as "the bitch that sells you." When that woman expressed concern about activities in the rooms having gone beyond "just the ... giving [of] erotic massages" (which she defined as including a "handjob"), the defendant told her "that maybe it's just not the line of work for [her] anymore." Another woman testified that the defendant had on occasion heard the women talking about sexual services being offered in the massage rooms; in response, "she would make it clear that that's not supposed to go on here but whatever happens in the rooms she can't control."

Discussion. We begin by reviewing the elements of the prostitution-related charges of which the defendant was convicted. We then discuss the defendant's claims that there was insufficient evidence to disprove her defense of entrapment and that the judge erred in giving a willful blindness instruction.

1. Elements of prostitution-related offenses. General Laws c. 272, § 7, concerning the crime of deriving support from prostitution, provides:

"Whoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his prostitution, from moneys loaned, advanced to or charged against him by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or shall share in such earnings, proceeds or moneys, shall be punished."

"[A] prostitute [is] defined as ‘one who permits common indiscriminate sexual activity for hire.’ " Commonwealth v. Matos, 78 Mass. App. Ct. 578, 585, 941 N.E.2d 645 (2011), quoting Commonwealth v. King, 374 Mass. 5, 12, 372 N.E.2d 196 (1977). The judge so instructed the jury here, adding "that the terms ‘prostitution’ and ‘sexual activity’ ... do not require a finding that any individual had a purpose of engaging in sexual intercourse, that is, penile-vaginal intercourse, but instead rests on a common understanding of the meaning of the word ‘prostitution.’ " See Matos, supra at 585, 941 N.E.2d 645.

General Laws c. 272, § 24, concerning the crime of keeping a house of prostitution, provides: "Whoever keeps a house of ill fame which is resorted to for prostitution or lewdness shall be punished." The judge instructed the jury that for this offense, too, they should apply the common understanding of the word "prostitution," which does not require intercourse.

Finally, G. L. c. 272, § 6, concerning the crime of maintaining a place of prostitution, provides: "Whoever, being the owner of a place or having or assisting in the management or control thereof induces or knowingly suffers a person to resort to or be in or upon such place, for the purpose of unlawfully having sexual intercourse for money or other financial gain, shall be punished." The judge instructed the jury that for this offense, the Commonwealth "must prove that the...