Commonwealth v. Sullivan

• Decision Date: 09 September 2014
• Docket Number: SJC–11568.
• Citation: 469 Mass. 621,15 N.E.3d 690
• Parties: COMMONWEALTH v. Joseph D. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 621
15 N.E.3d 690

COMMONWEALTH
v.
Joseph D. SULLIVAN.

SJC–11568.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 6, 2014.
Submitted Sept. 9, 2014.

15 N.E.3d 692

Kevin J. Curtin, Assistant District Attorney (Nicole L. Allain, Assistant District Attorney, with him) for the Commonwealth.

Dennis A. Shedd, Lexington, for the defendant.

Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.¹

Opinion

SPINA, J.

Following a jury trial in the Superior Court in December, 2008, the defendant, Joseph D. Sullivan, was convicted of attempted kidnapping, G.L. c. 274, § 6, and of accosting or annoying a person of the opposite sex, G.L. c. 272, § 53.² He was sentenced to from three to five years in the State prison on his conviction of attempted kidnapping, and he was sentenced to three years' probation on his conviction of accosting or annoying a person of the opposite sex, to commence on and after the attempted kidnapping sentence. On appeal, the defendant argued that (1) the Commonwealth failed to present sufficient evidence to prove every element of the charged crimes beyond a reasonable doubt;³ (2) his motion to vacate the attempted

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kidnapping conviction was wrongly denied; and (3) his counsel provided ineffective assistance during the course of the trial.⁴

The Appeals Court affirmed the judgment on the indictment charging attempted kidnapping, concluding that the Commonwealth had proved all of the required elements of the offense. Commonwealth v. Sullivan, 84 Mass.App.Ct. 26, 28–30, 32, 992 N.E.2d 380 (2013). On the indictment charging accosting or annoying a person of the opposite sex, the Appeals Court reversed the judgment, set aside the verdict, and entered judgment for the defendant. Id. at 30–32, 992 N.E.2d 380. It concluded that because the Commonwealth had not demonstrated that the defendant's conduct involved “sexually explicit language

or acts,” the Commonwealth failed to meet its burden of proving that the defendant's conduct was “offensive.” Id. at 30–31, 992 N.E.2d 380. We granted the Commonwealth's application for further appellate review, limited to issues pertaining to the defendant's conviction of accosting or annoying a person of the opposite sex under G.L. c. 272, § 53.⁵ As to those issues, we affirm the judgment of conviction.⁶

1. Background. The facts as they properly could have been found by the jury are concisely set forth in the decision of the Appeals Court. See Commonwealth v. Sullivan, 84 Mass.App.Ct. at 27–28, 992 N.E.2d 380. We reiterate the essential details.

At approximately 9:30 p.m. on September 28, 2007, R.M. was walking alone on Massachusetts Avenue in Cambridge. She was returning to her dormitory on the Massachusetts Institute of Technology campus after a Tae Kwon Do class. The operator of a motor vehicle traveling on Massachusetts Avenue, whom R.M. later identified from a photographic array as the defendant, swerved toward her and stopped on the side of the road. R.M. thought that he was going to ask for directions, so she took a step toward the vehicle. The defendant rolled down the window and said, “Hey little girl, you look so tired. Come on over. Talk to me. Let's, you know, let's talk.” R.M. described the pitch of his voice as “much higher than his normal tone of voice, more like, well, what you use to bribe someone.” She stepped back from the vehicle and started walking away because she “didn't want to have anything to do with that situation.” The defendant then got out of his vehicle while the engine was still running, and he walked toward R.M., asking her to come over and speak with him. R.M. declined to engage him in conversation

15 N.E.3d 694

and attempted to move away. The defendant came closer, causing R.M. to angle her body to avoid touching him. Eventually, R.M. managed to continue on her way, the defendant returned to his vehicle, and he drove away. The encounter, however, did not end there.

Apparently changing his mind about heading toward Boston, the defendant suddenly reversed his direction and followed R.M. in his vehicle as she turned onto Landsdowne Street, which at the time was dimly lit and devoid of other pedestrians. When he

caught up to her, the defendant stopped abruptly and got out of his vehicle a second time. With the engine running and the car door open, he approached so closely that R.M. was aware of an unpleasant odor emanating from his body. The defendant sounded angry, and he demanded that R.M. “get in his car.” Although he did not touch R.M., the defendant made a gesture like he wanted to put his arm around her shoulder and guide her toward his car. At this point, R.M. was “very scared.” She moved away from the defendant, turning sideways on the sidewalk so she could “scootch” between the defendant and a wall that was behind her without touching him. As R.M. walked past the defendant, he started to follow her. R.M. then began reciting to herself the license plate number of the defendant's vehicle. At that point, the defendant “stormed off,” got into his car, and left the scene. R.M. ran straight to her dormitory feeling “really, really, really scared,” and the police were called.

2. Standard of review. Because the defendant has challenged the sufficiency of the evidence, we consider whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A conviction may rest on circumstantial evidence alone, and the inferences drawn by a jury from the relevant evidence “need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Longo, 402 Mass. 482, 487, 524 N.E.2d 67 (1988), quoting Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). The existence of conflicting evidence does not mandate a required finding of not guilty, see Commonwealth v. Merry, 453 Mass. 653, 662, 904 N.E.2d 413 (2009), and we do not weigh supporting evidence against conflicting evidence when considering whether the jury could have found each element of the charged crime. See id. at 660, 904 N.E.2d 413, citing Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005).

3. Sufficiency of the evidence. General Laws c. 272, § 53, as amended through St. 1983, c. 66, § 1, states, in relevant part: “[P]ersons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex ... may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or

by both such fine and imprisonment.”⁷ Under the statute, “offensive” and “disorderly” are separate and distinct elements, and the Commonwealth must prove both beyond a reasonable doubt to satisfy its evidentiary

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burden. See Commonwealth v. Lombard, 321 Mass. 294, 296, 73 N.E.2d 465 (1947). Moreover, “the Commonwealth has to prove that the defendant's behavior was offensive and disorderly to a reasonable person.” Commonwealth v. Cahill, 446 Mass. 778, 781, 847 N.E.2d 344 (2006), citing Commonwealth v. Chou, 433 Mass. 229, 235, 741 N.E.2d 17 (2001). This is an objective standard. Cf. Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474–475, 631 N.E.2d 985, cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 122 (1994) (“whether a reasonable woman seeking abortion services would be threatened, intimidated, or coerced by the defendants' conduct” is objective standard).

As to the first element of the crime, we have said that “offensive” acts or language “are those that cause ‘displeasure, anger or resentment; esp., repugnant to the prevailing sense of what is decent or moral.’ ” Commonwealth v. Cahill, 446 Mass. at 781, 847 N.E.2d 344, quoting Black's Law Dictionary 1113 (8th ed. 2004) (defendant's act of grabbing victim from behind “really tight” around shoulders, at mutual place of business while she was helping customers, when viewed in context of defendant's other workplace behavior toward victim, was offensive within meaning of G.L. c. 272, § 53 ). See Commonwealth v. Moran, 80 Mass.App.Ct. 8, 10, 951 N.E.2d 356 (2011), quoting Commonwealth v. Cahill, supra (fact finder could conclude that defendant's act of calling out to victim while passing within arm's reach, grabbing genital area of trousers, and mimicking masturbation constituted conduct “repugnant to the prevailing sense of what is decent or moral”); Commonwealth v. Whiting, 58 Mass.App.Ct. 918, 920, 792 N.E.2d 1047 (2003) (evidence sufficient to support conviction of accosting or annoying person of opposite sex where defendant used sexually explicit language toward teenage girls, stepped out of vehicle, and pulled down pants, causing girls to fear that defendant would hurt them). Thus, “offensive” acts or language cause a complainant to...