Heard: October 4, 2018.
received and sworn to in the Ayer Division of the District
Court Department on March 18 and 29, 2016.
cases were tried before Mark A. Sullivan, J., and a
motion for a new trial, filed on June 2, 2017, was heard by
P. Power for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Present: Green, C.J., Hanlon, & Maldonado, JJ.
jury trial, the defendant was found guilty of indecent
assault and battery on a person age fourteen years or older,
disorderly conduct, and open and gross lewdness. The judge
sentenced the defendant on the indecent assault and battery
and the open and gross lewdness charges and placed the
disorderly conduct conviction on file with the
defendant's consent. The defendant appeals from the
judgments and from the orders denying his motions for a new
trial and for findings of fact on the denial of the new trial
motion. He argues that the evidence was insufficient to prove
open and gross lewdness; his counsel was ineffective for
failing to request that the jury be instructed on the lesser
included offense of indecent assault and battery; the judge
erred when he failed to make findings of fact on the
defendant's motion for a new trial; and the judge's
instruction to the jury on the charge of indecent assault and
battery was "deficient." We affirm.
March 2016, the victim had worked as a server at Dippin'
Donuts for approximately two years. Dippin' Donuts was
located in a gasoline station in Littleton, and the defendant
was a frequent customer, usually appearing at the coffee shop
between 7 and 8 A.M. every weekday morning. The victim did
not know the defendant's name, and her interactions with
him had been confined to exchanging pleasantries and taking
approximately 7:30 A.M. on March 18, 2016, the victim took a
break and went outside to smoke a cigarette and drink her
coffee. The defendant drove into a handicap parking spot near
where she was standing, got out of his car, and approached
her, saying, "Good morning." She responded,
"Good morning," and he said, "Give me a hug,
give me a kiss, just a little one," and extended his
arms. She said, "No," and pushed him away from her.
The defendant repeated his request, and when he received the
same response, he reached around and squeezed her buttocks.
The victim told him to get his donut and leave, and she went
back into the coffee shop to finish her shift. The defendant
followed her into the store and told her he wanted to buy
something for her. Again, the victim told the defendant to
leave. Still insisting that he wanted to buy her something,
the defendant went to the manager and asked what kind of
cigarettes the victim smoked; she told the manager that she
did not want anything, but the defendant bought the
cigarettes anyway. The victim took them back to the manager.
defendant left the store and moved his car to another
location in the parking lot. The victim then told her
coworkers that the defendant had assaulted her outside the
store. Some minutes later, the defendant approached the
window of the store, pulled his pants down around his ankles,
and danced around the parking lot; at least at one point, the
victim saw him also pull down his underwear, leaving his
buttocks fully exposed. Her coworker saw the defendant expose
his buttocks "multiple times." The defendant
continued to pull his pants up and down for several minutes.
The victim described her reaction as "very, very
distraught." Her coworker described herself as
"shocked"; it was she who called the police. The
victim testified, "I was like frantic. I didn't even
know what was going on. I was scared. I didn't know what
he was going to do." In addition, there were other
customers both inside the gasoline station and in the parking
Police Officer Patrick O'Donoghue was the first to arrive
on the scene. O'Donoghue asked the defendant if he had
exposed himself, and the defendant replied that he "had
just taken off his . . . outer layer sweatshirt off of
him." After speaking with the victim and her coworker,
in addition to the defendant, O'Donoghue placed the
defendant under arrest.