Opinion
21-P-230
01-21-2022
COMMONWEALTH v. Michael J. BOUDROT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions for open and gross lewdness, G. L. c. 272, § 16, and enticement of a child under the age of sixteen, G. L. c. 265, § 26C. On appeal, he contends that the enticement charge should have been dismissed prior to trial for lack of probable cause and that the evidence at trial was insufficient to support the convictions. We affirm.
Background. We summarize the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 4:30 P.M. on September 20, 2019, four thirteen year old girls, traveling by foot, took a shortcut through a dirt trail in the woods to get to the Whitney Field Mall in Leominster. While stopped at a rock near a foot bridge, the girls observed a man, later identified as the defendant, facing them while urinating. The defendant's pants were pulled down to or just below his knees and his penis was fully exposed. When the defendant finished urinating, he began walking toward the girls with his penis still exposed. The defendant held money in his hand while doing so and asked the girls if they "want[ed] to make some money." The girls ran away. Three of the four girls testified at trial, and each stated that they ran from the defendant because they were scared. One girl specifically testified that she feared that the defendant "was going to force [her] to do a sexual act." When the girls ran, the defendant increased his pace and began "chasing" them. One of the girls yelled to the defendant that they were going to call the police, and the defendant stopped following them. Once the girls reached a safe distance from the defendant, they dialed 911.
The audio recording of the 911 call was admitted at trial.
The police arrived shortly thereafter. They observed the defendant slumped over a rock and four young girls standing approximately twenty-five to thirty feet away from him. Officer Shane Crawford of the Leominster Police Department testified that the defendant "looked a little disheveled and a little dirty," and further that the defendant was unsteady on his feet, his eyes were bloodshot, and he smelled of alcohol. Officer Crawford also testified that the defendant was "clenching a large wad of cash." Another officer stayed with the defendant while Officer Crawford spoke to the girls. After that discussion, the defendant was placed under arrest and charged with open and gross lewdness, enticement of a child under the age of sixteen, and possession of a Class E substance. Prior to trial, the defendant moved to dismiss the charge of enticement for lack of probable cause. His motion was denied, and following a jury-waived trial, he was convicted of open and gross lewdness and enticement of a child under the age of sixteen but was acquitted of possessing a Class E substance. He timely appealed.
Discussion. 1. Motion to dismiss. "A motion to dismiss for lack of probable cause is evaluated from the four corners of the application for a complaint." Commonwealth v. Richardson, 479 Mass. 344, 352 (2018). "To establish probable cause, the complaint application must set forth ‘reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.’ " Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth v. Roman, 414 Mass. 642, 643 (1993). Each essential element of the offense must be supported by probable cause. See Humberto H., supra at 565-566. We review a judge's ruling on a motion to dismiss for lack of probable cause de novo. See id. at 566.
"The crime of child enticement has four elements: (1) ‘Any one who entices,’ (2) ‘a child under the age of 16, or someone he believes to be a child under the age of 16,’ (3) ‘to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space,’ (4) ‘with the intent that he or another person will violate [certain enumerated criminal statutes ] ... or any offense that has as an element the use or attempted use of force.’ " Commonwealth v. LaPlante, 73 Mass. App. Ct. 199, 202 (2008), quoting G. L. c. 265, § 26C. The defendant contends that the complaint application was insufficient to establish probable cause that he enticed the girls "to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space," or that he had the specific intent to violate one of the enumerated offenses in G. L. c. 265, § 26C. We disagree.
The statutes listed in G. L. c. 265, § 26C, include "section 13B, 13B 1/2, 13B 3/4, 13F, 13H, 22, 22A, 23, 23A, 23B, 24 or 24B of chapter 265, section 4A, 16, 28, 29, 29A, 29B, 29C, 35A, 53 or 53A of chapter 272, or any offense that has as an element the use or attempted use of force."
The complaint application did not specify which statute it alleged the defendant had the intent to violate but stated generally that Officer Crawford formed the opinion that the defendant's "intention was that of receiving a sexual act from the girls in exchange for the cash."
The statute "defines ‘entice’ to mean lure, induce, persuade, tempt, incite, solicit, coax, or invite, each of which, according to the commonly accepted meaning of the term, can be accomplished by words (spoken or written) and nothing more." Commonwealth v. Disler, 451 Mass. 216, 222 (2008). The complaint application states that the defendant asked the girls, "Do you girls want some money?" instead of whether they wanted to make some money. Nevertheless, this statement coupled with the defendant's contemporaneous action of walking toward the girls, with his penis exposed and hand stretched out with money, was sufficient to establish probable cause that the defendant was luring, inducing, or inviting the girls to remain in that location. See Disler, 451 Mass. at 225 n.13 (luring may occur by telling child that "the individual has something to show [or give to] the child").
While each of the girls testified on direct examination that the defendant asked them if they wanted to make money, the complaint application did not use the word "make." The defendant contends that, in the absence of that word, it cannot reasonably be inferred that he intended to receive something in exchange for money; rather, he contends that the only reasonable inference to be drawn is that he offered the girls money. An exchange need not take place for enticement to occur and offering to give money to a child may be sufficient, as it was here. See Disler, 451 Mass. at 225 n.13.
The statute further requires that "the person who entices does so with a criminal mens rea." Disler, 451 Mass. at 222. The defendant claims that this element was not met because facts in the complaint application establish that he was intoxicated. The argument is without merit. Here, the Commonwealth need not prove that the defendant was not intoxicated. See Commonwealth v. Kelcourse, 404 Mass. 466, 469 (1989). In Massachusetts, "there is no ‘diminished capacity’ defense based on intoxication." Commonwealth v. Militello, 66 Mass. App. Ct. 325, 340 (2006). To be sure, a defendant's voluntary intoxication may be relevant to determining whether he formed the requisite intent, but it is merely "an evidentiary factor for the jury to consider along with other credible evidence relating to the defendant's intent." Commonwealth v. Moore, 36 Mass. App. Ct. 455, 460 (1994). The issue whether a defendant's diminished capacity "renders him or her unable to form the requisite intent for a charged offense is an issue for trial, to be decided with the benefit of fair notice and perhaps expert testimony; it is not an issue that is appropriately part of the probable cause calculus." Commonwealth v. Newton N., 478 Mass. 747, 753 (2018). Accordingly, the fact that information in the complaint application suggested that the defendant was intoxicated did not negate probable cause to believe that he enticed the girls with the intent to commit an offense enumerated in G. L. c. 265, § 26C.
2. Sufficiency of the evidence. The defendant further contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he committed open and gross lewdness, or that he enticed the girls with the intent to commit open and gross lewdness, because he did not expose himself more than was necessary to urinate. Again, we disagree.
In finding the defendant guilty of enticement, the judge did not articulate which offense he found the defendant intended to commit. The defendant argues that open and gross lewdness was "the apparent predicate offense for the enticement charge," and that because the evidence of open and gross lewdness was insufficient, the evidence that he enticed the girls with the intent to commit that offense was also insufficient. The Commonwealth argues that the evidence was sufficient to prove that the defendant enticed the girls with the intent to commit any number of the offenses listed in the enticement statute, including open and gross lewdness. As a result, for the purpose of this discussion, we focus our attention on the offense of open and gross lewdness.
In reviewing the sufficiency of the evidence, "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. Kessler, 442 Mass. 770, 772 (2004), quoting Commonwealth v. Ruci, 409 Mass. 94, 96 (1991). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).
To prove that the defendant committed open and gross lewdness, the Commonwealth must show that "the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons." Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008), quoting Kessler, 442 Mass. at 773 n.4.
Viewed in the light most favorable to the Commonwealth, the evidence was more than sufficient to prove that the defendant exposed his genitals beyond what was necessary for urination in a manner to produce shock or alarm and in fact shocked or alarmed the girls as a result. See Swan, 73 Mass. App. Ct. at 261. While it is true that the defendant was urinating prior to the girls’ arrival at the foot bridge, he was doing so in a public place, in broad daylight, and took no action to cover or conceal his penis from public view. More significantly, when the defendant finished urinating, he did not pull up his pants, but, while continuing to expose himself, walked toward the girls and asked if they wanted to make some money with his hand outstretched containing dollar bills. Compare id. (considering defendant's attempt to gain victim's attention during exposure as well as victim's age in assessing intent to produce shock or alarm). In addition, when the girls ran from him, the defendant increased his pace and began to "chas[e]" them, with his genitals still exposed. Based on these facts, the judge, as fact finder, could reasonably conclude that the defendant exposed himself in a manner to produce shock or alarm, and that it was objectively reasonable for the girls to be shocked or alarmed by this behavior. See Commonwealth v. Pasquarelli, 98 Mass. App. Ct. 816, 821 (2020) (police officer's shock objectively reasonable where defendant "approached [the officer], expressly called for her attention, and exposed his genitals").
Further, the evidence was sufficient to prove that at least one or more of the girls was indeed shocked or alarmed by the defendant's exposure. See Commonwealth v. Maguire, 476 Mass. 156, 159 (2017) (Commonwealth must "demonstrate that at least one person ‘in fact’ was ‘alarmed or shocked’ "). "This requires evidence of strong negative emotions -- a subjective inquiry -- most commonly corroborated by an immediate physical response." Id. The three girls who testified at trial testified that the exposure scared them, causing them to run and call 911. One of the girls testified that she was "grossed out" and "nervous," and as mentioned, another girl feared that the defendant may sexually assault her. This evidence was sufficient to establish that at least the three girls who testified were subjectively shocked or alarmed by the exposure. See Swan, 73 Mass. App. Ct. at 261 (where young boy was "grossed out" and "made nervous" by defendant's behavior, causing him to leave area, subjective alarm sufficiently established). The defendant contends that this element was not satisfied because arguably the one girl who did not testify at trial can be heard on the 911 call stating that the defendant was "just trying to be a friend." Even assuming that the statement established that that girl was not shocked or alarmed by the defendant's conduct, the Commonwealth need not prove that all four girls were in fact shocked; it is enough that one girl, let alone three, was actually shocked or alarmed by the defendant's exposure. See Maguire, supra.
As a result, the evidence at trial was sufficient to prove beyond a reasonable doubt that the defendant was guilty of open and gross lewdness and that he enticed the girls with the intent to commit that offense.
Judgments affirmed.