Opinion
No. 12–P–97.
2013-03-28
COMMONWEALTH v. Roger E. BEAUREGARD.
By the Court (RAPOZA, C.J., KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant was convicted of indecent assault and battery on a person over fourteen, in violation of G.L. c. 265, § 13H, and of accosting and annoying a person of the opposite sex, in violation of G.L. c. 272, § 53.
He appeals, arguing that it was error for the trial judge to deny his oral motion for required findings of not guilty as to those charges. We affirm.
He was also convicted of assault and battery, G.L. c. 265, § 13A, but makes no argument on appeal regarding this conviction.
Discussion. Here “[the] question is 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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewed in that light, we conclude that the evidence was more than sufficient to support the jury's conviction of the defendant on both charges. 1. Indecent assault and battery. To obtain a conviction under G.L. c. 265, § 13H, the Commonwealth must prove beyond a reasonable doubt that the defendant committed “an intentional, unprivileged and indecent touching of the victim.” Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010), quoting from Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 (1991). The defendant does not dispute the jury's apparent conclusion that his conduct was intentional or undertaken without the victim's consent. The issue on appeal is whether there was sufficient evidence to support the jury's determination that his touching of the victim was “indecent” as contemplated by the statute.
The test for what constitutes an indecent touching is an objective one. Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 314 (1997). “A touching is indecent when, judged by the ‘normative standard’ of societal mores, it is ‘violative of social and behavioral expectations,’ 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.’ “ Id. at 314–315 (citations omitted).
The events in this case took place during the victim's job interview and her few days of employment thereafter in the sales department of the defendant's home construction business. The victim testified that the defendant engaged in a pattern of behavior that included repeatedly calling her into his office where he would make comments of a sexualized nature about her appearance and touch her on various parts of her body over her protestations. On one such occasion, the defendant began by rubbing the victim's shoulders, after which he slid his hand down her back and touched her buttocks in the area of the waistband of her pants. The victim described the waistline of her pants as being “very low” and testified that the defendant's hand went down to an area that was her “behind,” along the top of her “left butt cheek,” “at the start of where my butt is,” and that his hand was underneath or inside the waist of her pants.
The evidence supporting the indecent assault and battery verdict was thus that the defendant slid his hand down the victim's back and under her pants, touching the bare skin at the top of her buttock despite her explicit and repeated statements that she did not want him to touch her. This act was also committed contemporaneously with his making comments tinged with sexual innuendo and engaging in other behaviors that caused the victim obvious distress. A rational jury could find that the touching in question was “indecent.” See Commonwealth v. Lavigne, 42 Mass.App.Ct. at 313–315 (massaging victim's upper thigh, outside clothing, in conjunction with offer to pay money for sexual conduct, supported indecent assault and battery conviction). See also Commonwealth v. Mosby, 30 Mass.App.Ct. at 185 (touching victim's buttocks, outside clothing, coupled with proposal that had sexual overtones, constituted “indecent” touching).
2. Annoying and accosting a person of the opposite sex. In pertinent part, G.L. c. 272, § 53, as appearing in St.1983, c. 66, § 1, imposes criminal penalties on “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex....” Under the statute, “offensive” acts are distinct from “disorderly” acts, and the Commonwealth must prove both beyond a reasonable doubt to satisfy its burden. Commonwealth v. Lombard, 321 Mass. 294, 296 (1947). “Offensive acts 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. 778, 781 (2006) ( Cahill ), quoting from Black's Law Dictionary 1113 (8th ed.2004). “Disorderly” acts, on the other hand, are those that create a “physically offensive condition for no legitimate purpose of the actor,” Cahill, supra at 781–782, quoting from Commonwealth v. Chou, 433 Mass. 229, 233 (2001), or are of a threatening nature. Cahill, supra at 782–783, citing Commonwealth v. Chou, 433 Mass. at 235. See also Commonwealth v. LePore 40 Mass.App.Ct. 543, 548–549 (1996). An act may be disorderly “whether the resulting harm is suffered in public by the public or in private by an individual.” Cahill, supra at 782, quoting from Commonwealth v. Chou, supra at 233.
a. Offensive acts. Here, the victim testified that the defendant repeatedly rubbed her shoulders and massaged her feet and calves against her will while making comments of a sexualized nature. During one incident in the defendant's office, the victim was sitting in a wheeled office chair that the defendant pulled close to him, attempting to position the victim between his open legs while she resisted by pushing against the floor with her feet. The victim repeatedly told the defendant that she was married, that she had been a victim of sexual abuse in the past, and that she did not want him to touch her. The defendant, however, did not end his behavior. He went on to tell the victim, “You should get into a bikini because we can put it on our card and it would sell more business.” The victim testified that the defendant also said, referring to another female employee, “that he wouldn't mind seeing [the other employee] and I, you know, give a little kiss.” The victim repeatedly requested that the defendant not speak to her in that manner. The evidence was thus sufficient for the jury to conclude that the defendant committed “offensive” acts by repeatedly touching the victim on various parts of her body despite her explicit requests that he cease, “particularly when considered in the context of the defendant's other behaviors toward the victim in the workplace.” Cahill, 446 Mass. at 781.
b. Disorderly acts. The evidence of the defendant's conduct also supported the jury's determination that his actions were “disorderly” within the meaning of G.L. c. 272, § 53, either as physically offensive or threatening conduct. To begin with, the defendant's unwanted sexual comments and repeated touching of the victim despite her protestations “invad[ed] her personal privacy at the workplace” and were thus “physically offensive.” Cahill, supra at 782. As in Cahill, viewed in the light most favorable to the Commonwealth, there could be no legitimate purpose for the defendant's behavior. See id. at 783 n. 7.
The jury also could have concluded that the defendant's behavior was threatening and that his conduct was thus disorderly. “Sexually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening.... Moreover, language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.” Commonwealth v. Chou, 433 Mass. at 234. Additionally, his behavior was not limited to language, but included repeated, unwanted physical touching that the victim could not avoid despite her objections.
The defendant's comments and behavior were clearly perceived as threatening by the victim. Her testimony was that she and another female employee (the one previously mentioned) waited until a time when the defendant was not in the office, retrieved their employment applications so he would not have their personal information, returned their office keys, and contacted the police. The victim did not speak to the defendant again or seek compensation for the time she worked for him, even though she had accepted the position because she needed the money. In the circumstances, there was sufficient evidence for the jury to conclude that the victim reasonably felt threatened by the defendant, who was, consequently, “disorderly” within the meaning of the statute. Cf. Commonwealth v. Chou, 433 Mass. at 235.
Judgments affirmed.