Opinion
14-P-909
01-14-2016
COMMONWEALTH v. RICHARD KEITH JOHNSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, after a bench trial, of lewd, wanton, and lascivious conduct in violation of G. L. c. 272, § 53. He argues that the evidence was insufficient to sustain his conviction. We affirm.
Under the familiar Latimore standard, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the evidence was sufficient for a rational trier of fact -- in this case the judge -- to find each essential element of the offense beyond a reasonable doubt. The evidence permitted the judge to find that the defendant touched his erect penis for "[a] good five minutes or more" under his clothes, on a crowded Massachusetts Bay Transportation Authority (MBTA) blue line train to Wonderland station. As he did so, he stared directly at a female passenger sitting across from him and said, "Look how big it is. It's beautiful. It's a work of art." After about five minutes, the passenger began videotaping this behavior on her cellular telephone. She later turned the videotape over to the MBTA police, and it was introduced in evidence at the trial. The defendant's conduct was "worse" before she began recording.
This evidence was sufficient for the judge to find that the defendant engaged in "conduct in a public place . . . involv[ing] the touching of the genitals . . . for the purposes of sexual arousal, gratification, or offense, by a person who knows or should know of the presence of a person or persons who may be offended by the conduct." Commonwealth v. Sefranka, 382 Mass. 108, 117-118 (1980). See Commonwealth v. Nebel, 59 Mass. App. Ct. 316, 318-319 (2003); Criminal Model Jury Instructions for Use in the District Court 7.380 (2009) (model jury instruction).
The defendant's prolonged handling of his erect penis, although under his clothes and not to the point of ejaculation, amounted to a sexual act involving the genitals, satisfying the first two elements as set forth in the model jury instruction. See Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 479-480 (2010) (unexposed masturbation sufficient to support conviction of lewd, wanton, and lascivious behavior). The evidence that he directed his conduct at one passenger, who testified, "[I]t was just disgusting," and told another woman on the train "how he wanted to have sex with her" was sufficient to show both that his conduct was for the purpose of offense and for his sexual arousal or gratification. And the defendant performed this sexual act in a public place: a subway car with other people present. Because this case does not involve solicitation of a sexual act, cases such as Commonwealth v. Roy, 420 Mass. 1, 3-4 (1995), which determined that the evidence was speculative as to whether the defendant was soliciting sexual contact to occur in public or in private, and the cases cited therein, are inapplicable. Finally, the judge could rationally determine that the defendant was not so intoxicated that he was incapable of forming the requisite intent. See Commonwealth v. James, 424 Mass. 770, 789 (1997).
Judgment affirmed.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 14, 2016.