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17-P-1091 Appeals Court
COMMONWEALTH vs. JOHNNY COLON.
No. 17-P-1091.
Plymouth. April 13, 2018. - July 12, 2018.
Present: Green, C.J., Desmond, & Englander, JJ.
Indecent Assault and Battery. Practice, Criminal, Required
finding. Constitutional Law, Vagueness of statute. Due
Process of Law, Vagueness of statute.
Complaint received and sworn to in the Wareham Division of
the District Court Department on October 9, 2015.
The case was heard by Therese M. Wright, J.
Michelle A. Dame for the defendant.
Dan A. Jimenez, Assistant District Attorney, for the
Commonwealth.
ENGLANDER, J. The defendant challenges the sufficiency of
the evidence to convict him of indecent assault and battery on a
child under fourteen, where he hugged the victim for a prolonged
time while extensively licking in and around her ear. We hold
2
that the evidence, in context, was sufficient to support the
conviction, and that the criminal offense of indecent assault
and battery on a child under fourteen is not unconstitutionally
vague as applied to the facts here.
Background. We recite the facts in the light most
favorable to the Commonwealth. The defendant and the victim met
for the first time at a family barbecue on September 6, 2015.
The defendant was fifty-eight years old at the time; the victim,
thirteen. The family relationship was distant; the defendant
was the brother of a relative of the victim's stepfather.
There were twelve to fifteen people at the barbecue.
Sometime during the barbecue the victim was introduced to
the defendant; the victim testified that during the barbecue the
defendant was looking at her in a way that made her
"uncomfortable." As the barbecue was winding down, the victim
went to leave and encountered the defendant in a doorway. The
defendant put his arms out for a hug; no one else was present,
as the remaining guests were in another room at the time. The
victim hugged the defendant. The defendant then pulled the
victim to him, "right on his chest," and "wouldn't let [the
victim] go." The defendant then began licking the victim's ear,
including licking all around her three ear piercings, and
inserting his tongue in her ear. The victim tried to get away,
but the defendant held on. The hugging and ear licking went on
3
for a prolonged period; the victim testified, "I honestly don't
know [the] exact time, but it felt like forever." When another
of the victim's relatives came in the vicinity and called her
name, the defendant pushed the victim away and she left.
The trial was jury-waived. The judge convicted the
defendant of indecent assault and battery on a child under
fourteen, in violation of G. L. c. 265, § 13B; as to this charge
the defendant was sentenced to two and one-half years in the
house of correction, with ninety days to serve, the balance
suspended for two years' probation.1
On appeal, the defendant raises two issues: first, that
the evidence of ear licking and hugging was insufficient to
constitute indecent assault and battery as a matter of law, and
second, that the term "indecent" in the criminal statute is not
sufficiently defined and therefore is unconstitutionally vague.
Discussion. a. Sufficiency of the evidence. As to the
defendant’s first argument, we review a challenge to sufficiency
of the evidence to 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
1 The defendant was additionally charged and convicted of
assault and battery; the defendant raises no challenge to that
conviction.
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of the crime beyond a reasonable doubt." Commonwealth v.
Lattimore, 378 Mass. 671, 677 (1979) (quotation omitted).
To sustain a conviction of indecent assault and battery on
a child, the Commonwealth must prove "that (1) the child was not
yet fourteen years old at the time of the offense, (2) the
defendant intentionally touched the child without legal
justification or excuse, and (3) the touching was indecent."
Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138 (2018). See
G. L. c. 265, § 13B. There is no issue on appeal as to the
sufficiency of the evidence on the first two elements. Rather,
the question on appeal is whether, on these facts, the evidence
was sufficient to establish that the unwanted touching by the
defendant was "indecent."
Several of our cases have addressed the question of what
conduct constitutes "indecent" assault and battery. We have
stated that "the intentional, unjustified touching of private
areas such as the breasts, abdomen, buttocks, thighs, and pubic
area of a female constitutes an indecent assault and battery."
Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991)
(quotation omitted). These areas have been classified as
"sexual parts." Commonwealth v. Rosa, 62 Mass. App. Ct. 622,
625 (2004). But this list "is not intended to be exhaustive,"
and our cases have held that the unjustified touching of other
areas of the body may also qualify as indecent, depending upon
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context. Ibid. The mouth, in particular, has been recognized
as an "intimate" body part, and we have held that the insertion
of a tongue during a kiss, Commonwealth v. Castillo, 55 Mass.
App. Ct. 563, 565-567 (2002), and the insertion of fingers into
the mouth coupled with sexual commentary, can constitute
indecency. Rosa, 62 Mass. App. Ct. at 624-626.
In an effort to define an "indecent touching" more
generally, we have said that it is a touching that is
"fundamentally offensive to contemporary moral values," Mosby,
30 Mass. App. Ct. at 184 (quotation omitted), and that "society
would regard as immodest and improper because of its sexual
overtones . . . ." Commonwealth v. Ortiz, 47 Mass. App. Ct.
777, 779 (1999). See Commonwealth v. Miozza, 67 Mass. App. Ct.
567, 572 (2006). The test is an objective one, see Castillo, 55
Mass. App. Ct. at 565, and our cases have set forth several
other guideposts for consideration, to wit: whether there is a
disparity in age and sophistication between assaulter and
victim; whether there is an existing relationship between them;
and, whether there is evidence of surreptitious behavior or the
use of force. See id. at 567; Cruz, 93 Mass. App. Ct. at 139.
These guideposts can help to separate conduct that is
objectively offensive and sexual from conduct that may in fact
be innocent.
6
Applying these standards, we have no difficulty concluding
that there was sufficient evidence of an indecent assault and
battery here. While ears may not be on the list of "sexual
parts," they are intimate enough so that the insertion of a
tongue into an ear can reasonably qualify as "indecent."
Indeed, here it is very difficult to credit any suggestion that
the conduct was not sexual in nature -- unlike a hug or a kiss,
an extended ear licking is not normal behavior between persons
who are not intimate. And of course, here the evidence of
context adds greatly to the calculus. The age disparity was
substantial – - fifty-eight to thirteen. The location of the
contact was sufficiently separate from the others at the
barbecue that it could be found to be surreptitious --
particularly where the defendant broke off his conduct as soon
as another person was in the vicinity. This behavior tends to
confirm not only that the conduct was improper, but that the
defendant knew it was. See Rosa, 62 Mass. App. Ct. at 626.
Importantly as well, there was an element of force used here --
the victim testified that she tried to break away, but the
defendant would not let go. There was more than sufficient
evidence for the judge to find "indecency."
b. Vagueness. The defendant argues, alternatively, that
"indecent assault and battery," as defined under G. L. c. 265,
§ 13B, is unconstitutionally vague, because "persons of common
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intelligence must necessarily guess at its meaning." Commonwealth
v. Quinn, 439 Mass. 492, 499 (2003) (quotation omitted). The
defendant urges that "based on how the statute has previously been
defined and interpreted," one would not know that licking an ear
could qualify as "indecent."
We disagree. A statute is not unconstitutionally vague
merely because its terms require judicial construction, or
because "it requires a person to conform his conduct to an
imprecise but comprehensible normative standard." Commonwealth
v. Gallant, 373 Mass. 577, 580 (1977) (quotation omitted). The
vagueness challenge is to the statute as applied to the
defendant's facts. See id. at 581, quoting from United States
v. Powell, 423 U.S. 87, 92 (1975) ("[V]agueness challenges to
statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand"). Here,
once again, we have no difficulty concluding that the
defendant's conduct fell comfortably within those behaviors that
are encompassed within the standards for "indecency" previously
set forth in our cases -- because the conduct was "fundamentally
offensive," and "immodest and improper because of its sexual
overtones." Moreover, nothing in our prior cases suggests that
the conduct at issue would not qualify as indecent. Under the
above standards there is no material difference between the
intentional insertion of a tongue into the victim's mouth in
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Castillo, and the defendant's intentional insertion of his
tongue into the victim's ear, here.
Recently, in Commonwealth v. Cruz, 93 Mass. App. Ct. 136
(2018), we addressed facts that were not sufficient to
constitute indecency. Those facts included a brief but tight
hug, "like a hug [the victim's] parents would give her," a kiss
on the neck, which in the victim's words was "not anything that
necessarily alarmed her," and the slight lifting of a corner of
the victim's shirt, but without exposing or touching of skin.
Id. at 137. While the majority and concurring opinions in Cruz
help to further define the boundaries of indecent assault, the
facts here are plainly distinguishable from Cruz. This case
does not involve a parental-like hug and a brief kiss on the
neck; it involves a forced hug that "felt like forever," coupled
with the licking of an ear, and the insertion of a tongue "over
and over again."2 See id. at 137-139. There is nothing
unconstitutionally vague about the term "indecent" as applied to
these facts.
Judgments affirmed.
2 Indeed, the defendant's conduct was "overtly sexual based
upon objective standards," and thus would satisfy the standard
proposed in the concurring opinion in Cruz. See id. at 144.