Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Colon

Appeals Court of Massachusetts, Plymouth

July 12, 2018

COMMONWEALTH
v.
JOHNNY COLON.

          Heard: April 13, 2018.

         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.

          Present: Green, C.J., Desmond, & Englander, JJ.

          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 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 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 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, ยง 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.