Opinion
No. 14–P–1872.
05-10-2016
COMMONWEALTH v. Ariel S. WIGGINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the District Court, the defendant was convicted of lewd, wanton, and lascivious conduct and, in addition, accosting or annoying a person of the opposite sex. On appeal, the defendant argues that the evidence presented was insufficient to convict him on the accosting or annoying charge, and that the judge abused his discretion in allowing in inadmissible prior bad act evidence. We affirm.
Sufficiency of the evidence. “In reviewing the sufficiency of the evidence, we determine ‘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. Romero, 464 Mass. 648, 652 (2013), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We “do not weigh supporting evidence against conflicting evidence when considering whether the [fact finder] could have found each element of the charged crime.” Commonwealth v. Sullivan, 469 Mass. 621, 624 (2014).
In order to sustain a conviction of accosting or annoying a person of the opposite sex, the Commonwealth must prove beyond a reasonable doubt that the defendant (1) knowingly engaged in an offensive and disorderly act, or offensive and disorderly language, (2) intending to direct that conduct at the victim, (3) that the victim was aware of the defendant's offensive and disorderly conduct, (4) that this conduct was offensive to a reasonable person, and (5) that the victim was a person of the opposite sex. See G.L. c. 272, § 53 ; Sullivan, 469 Mass. at 625–629.
At trial, the female victim testified that, on February 9, 2012, she was on Wyman Street in Stoughton, walking toward Washington Street in the center of town. As she was walking, she noticed the defendant driving slowly down the street in a red Ford Explorer and looking directly at her; she became nervous and went into the Honey Dew doughnut shop on the corner of Wyman and Washington Streets. While in the doughnut shop, the victim saw the defendant pass by in his truck and turn right onto Washington Street. After a few moments, the victim left the doughnut shop, and continued walking on Washington Street. As she was waiting at the crosswalk to cross to the other side of Washington Street, the defendant drove up on Railroad Avenue (the side street alongside the crosswalk). While looking directly at the victim, the defendant yelled, “Hey baby, hey sexy, come here. I want to talk to you.” In an attempt to “get away from him,” the victim crossed Washington Street, walked up to Park Street, and, after seeing the defendant's truck traveling up Walnut Avenue, she crossed the street to Faxon Park.
The defendant stopped his truck in front of the park, a “couple [of] feet” from the victim, then yelled to her that he needed directions. Thinking she would give the defendant the directions he was requesting so that he would be on his way, the victim stepped within a “few feet” of the defendant's truck; the passenger window was down and, because the sidewalk was raised up from the street, she was able to see into the truck, where the defendant was sitting in the driver's seat, with his jeans undone, masturbating. As she was near the truck, the defendant said to her, “I want you to come help me, come help me do this.”
The victim immediately walked away from the defendant's truck and called 911. While she was on the phone giving the police information about the incident, including the defendant's license plate number, the defendant drove off. The victim, however, was able to see the defendant turn right onto Park Street, travel on “Kingsley,” then back up Walnut. The defendant stopped on Walnut Avenue about twenty feet from where the victim was still standing, opened his door and stepped out of his truck; the victim could see the defendant's pants “flapped down.” At that point, the police arrived, and the defendant got into his truck and drove away.
Officer Charles Roberts testified that, as he was approaching Faxon Park responding to the victim's 911 call, the defendant's red Ford Explorer passed him traveling in the opposite direction on Walnut Street; after briefly speaking with the victim, who was “nervous, shaking, and visibly upset,” Roberts turned his car around and followed after the defendant south on Park Street. Roberts eventually caught up with the defendant on Washington Street (northbound), where he had been stopped by another officer in front of J & I Variety; the defendant “was already out of the vehicle” when Roberts arrived. In response to Roberts's questioning, the defendant said that he only said “hi” to the victim “and asked her for her phone number.” Roberts stated that the defendant was wearing jeans, with a belt, at the time of the stop, and he observed that the defendant's jeans were zippered.
The defendant testified, and admitted that he was in that location at that time. However, he denied that he had done any of the things that the victim alleged, other than saying “hi” and beeping; he testified that he did that because he thought that she looked familiar and that he knew her. He also denied that he got out of his truck at any time other than to go into Tedeschi's Market.
Although the victim and the defendant provided conflicting testimony regarding the events in Stoughton Center on February 9, 2012, it was for the judge, as fact finder, to weigh the evidence and to determine whether the Commonwealth had provided sufficient evidence to prove all of the elements of the crimes charged. “If, from the evidence, conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [his] province.” Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), quoting from Commonwealth v. Lao, 443 Mass. 770, 779 (2005). After reviewing the record, we are satisfied that the trial judge clearly was warranted in finding beyond a reasonable doubt that the defendant accosted or annoyed the victim. See Romero, 464 Mass. at 652 ; Sullivan, 469 Mass. at 628.
Prior bad act evidence. Prior to trial, the defendant opposed the Commonwealth's motion in limine to admit evidence that the defendant had approached another woman in Stoughton Center earlier in the day on February 9. “We review a judge's evidentiary rulings on a motion in limine for abuse of discretion.” Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). “Whether proffered ‘evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.’ “ Ibid., quoting from Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).
A female witness testified that, on February 9, 2012, while she was walking in Stoughton Center with her two children, and crossing Washington Street at the corner of Pearl Street, the defendant, driving a red SUV, initiated conversation with her. The defendant was stopped at the red light where the witness was waiting for the walk sign; he asked the witness for her number, and after she refused, he said, “We should definitely hook up, ma.” The defendant was not dissuaded upon learning that the witness was married; he responded by stating, “Oh, I won't tell [your husband].” The defendant had “stopped traffic behind him so he could finish talking to [the witness] while [she] was walking across the crosswalk”; after the witness finished crossing the street, the defendant drove away.
The defendant contends that the testimony admitted about the earlier event was evidence of a prior bad act in an unrelated incident and therefore was improperly admitted. While “the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad characteR or propensity to commit the crime charged,” Commonwealth v. Corliss, 470 Mass. 443, 450 (2015), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), “if relevant for some other purpose, and if the probative value outweighs the risk of unfair prejudice, the judge may, in his discretion, admit evidence of a defendant's prior bad acts.” Commonwealth v. Anestal, 463 Mass. 655, 665 (2012) (quotation omitted). See Mass. G. Evid. §§ 403, 404(b) (2015). In particular, prior bad act evidence may be admitted “to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005) (quotation omitted).
Here, the witness's testimony was offered by the Commonwealth to show the defendant's full course of conduct leading up to his encounter with the victim, as well as for the purpose of demonstrating his motive and intent. In addition, as noted, this was a jury-waived trial and we presume that the judge properly instructed himself on the appropriate standard for considering the evidence.
Contrary to the defendant's argument that this testimony was “not relevant” and “had no probative value for any permissible purpose,” we are satisfied that the evidence here was properly admitted to show a pattern or course of conduct, as well as the defendant's motive or intent in approaching women that day. See Butler, supra at 574. We see no error, and certainly no abuse of discretion in admitting the witness's testimony.
Judgments affirmed.