Heard: April 13, 2018.
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.
Jimenez, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Desmond, & Englander, JJ.
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.
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.
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.
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.
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
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).
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 ...