Supreme Judicial Court of Massachusetts, Berkshire
Argued September 8, 2015.
Indictments found and returned in the Superior Court Department on October 24, 2011.
The cases were tried before John A. Agostini, J., and a motion for a new trial was considered by him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Michael J. Hickson for the defendant.
John P. Bossé , Special Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[42 N.E.3d 605] Spina, J.
In this case, we are asked to examine whether the term " intellectual disability" in G. L. c. 265, § 13F (indecent assault and battery on a person with an intellectual disability), renders the statute unconstitutionally vague. On the effective date of November 2, 2010, the Legislature amended the statute substituting the term " mentally retarded person" with " person with an intellectual disability" as well as the words " be mentally retarded" with " have an intellectual disability." St. 2010, c. 239, § § 71-72. These amendments were part of a broad legislative scheme that purged the term " mentally retarded" from the General Laws. St. 2010, c. 239 (" An Act eliminating the word 'retardation' from the General Laws" ). As a result, G. L. c. 265, § 13F, now states: " Whoever commits an indecent assault and battery on a person with an intellectual disability knowing such person to have an intellectual disability shall ... be punished ... ." The term " intellectual disability" is not defined by the statute.
The defendant was convicted on four indictments alleging indecent assault and battery on a person with an intellectual
disability, one indictment alleging indecent [42 N.E.3d 606] exposure, and one indictment alleging accosting or annoying a person of the opposite sex. The crimes were alleged to have occurred between on or about January 1, 2008, which was before the effective date of the statutory amendments, and on or about September 16, 2011.
At the close of the Commonwealth's evidence, the defendant moved for required findings of not guilty on all charges. A judge in the Superior Court entered a required finding of not guilty on an indictment alleging intimidation of a witness but denied the motion as to the remaining charges.
At the close of all the evidence, the defendant renewed his motion for required findings of not guilty on the remaining charges, which was denied. Appellate proceedings were stayed to allow the defendant to file postconviction motions. The defendant filed postconviction motions for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and for a required finding of not guilty under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), both of which were denied by the trial judge. The defendant appealed from the denial of his postconviction motions. The Appeals Court consolidated the two appeals. We transferred the case to this court on our own motion.
On appeal, the defendant asserts (1) that the term " intellectual disability" renders G. L. c. 265, § 13F, unconstitutionally vague; (2) that he was convicted under an ex post facto law; (3) that the judge erred by denying certain of his motions for a required finding of not guilty; and (4) that the judge erred by denying his motion for a new trial. For the following reasons, we conclude that G. L. c. 265, § 13F, is constitutional, and we affirm the judge's rulings.
The jury could have found the following facts. In 2013, at the time of trial, Amy was a twenty-four year old woman. At the time of the incidents, Amy lived in a farmhouse with a wraparound porch in Hancock with her mother and her maternal grandfather. She was adopted at birth, and at the age of eight months she was diagnosed with " slow learning" and " special needs." Amy reads at a third or fourth grade level and has a verbal intelligence quotient (IQ) of forty-seven. In 2008, after Amy reached age eighteen, her mother and grandfather were appointed legal guardians of her. According to the permanent decree of guardianship admitted in evidence, a judge in the Probate and Family Court found that Amy is " mentally retarded" and that failure to appoint a guardian would create risk to her health and welfare. The medical certificate supporting the permanent decree of guardianship details Amy's disability as being mental retardation and [42 N.E.3d 607] states that she lacks the ability to make decisions without adult supervision.
At the time of trial, the defendant was seventy-two years old. He is a retired boat builder, which he had done for forty-six years, but he continued to work part time doing fiberglass work. His hobbies included hunting and fishing. He and a friend used to hunt in western Massachusetts. The friend introduced him to Amy's great grandmother. In the early 1980s, he began to hunt on the property where Amy and her family live. The defendant and Amy's grandfather forged a friendship and grew close over the years. The defendant would visit the family two to three times a year and hunt on the property. He typically would stay for one or two weeks at a time in his camper, which he parked behind the farmhouse. The defendant came to know Amy, and he described her as behaving " like a child more or less."
On September 11, 2011, Amy and the defendant were sitting side by side, alone on the porch. The boy friend of Amy's mother was folding laundry in front of a window overlooking the porch. While sitting next to the defendant, Amy dropped her hand to his leg and slowly moved her hand up toward the defendant's crotch area. Amy began to " rub" and " pet" the defendant's penis over his pants. Amy testified that the defendant did not ask her to do this but that it was " his idea." Amy's mother's boy friend watched
this occur from the window, and after watching for a few moments, he went to the staircase and called up to Amy's mother to come downstairs. She and her boy friend watched Amy and the defendant from the downstairs window. Amy's mother saw Amy's hand on the defendant's leg, next to his penis. Upon seeing this, Amy's mother frantically knocked on the window and told Amy to come inside.
Amy went inside, and her mother took her upstairs to talk to her. Once they were upstairs, Amy began to tell her mother about various incidents when the defendant touched her inappropriately. Amy's mother made written notes of Amy's account of the incidents. These incidents occurred over a period of three years, always outside the defendant's camper. Amy would walk with the defendant back to his camper after dinner. According to Amy's testimony, the defendant touched her breasts, her vagina, and kissed her multiple times on the mouth, breasts, and vagina. Amy testified that these events made her feel uncomfortable. She testified to one particular incident where the defendant put his hand on the back of her head and forced her head down toward his penis because he wanted her to perform oral sex. She refused and told him she did not want to do that. The defendant told her to keep it a secret because, if she did not, he could get in trouble. Amy testified that the defendant's penis was exposed but that she could not see it because it was dark out and she could not describe it.
After the September 11 incident, Amy was not allowed to go outside the house while the defendant was still on the property, and the defendant was not allowed in the home. The defendant stayed for about another week on the property. A few [42 N.E.3d 608] days after Amy made these disclosures, her mother reported the incidents to the police, who then began an investigation.
2. Indecent assault and battery on person with intellectual ...