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Commonwealth v. Melo

Appeals Court of Massachusetts, Middlesex

May 8, 2019

COMMONWEALTH
v.
DAVID MELO.

          Heard: October 4, 2018.

         Complaints received and sworn to in the Ayer Division of the District Court Department on March 18 and 29, 2016.

         The cases were tried before Mark A. Sullivan, J., and a motion for a new trial, filed on June 2, 2017, was heard by him.

          Andrew P. Power for the defendant.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Hanlon, & Maldonado, JJ.

          HANLON, J.

         After a 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.

         Background.

         In 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 his orders.

         At 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.

         The 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 lot.

         Littleton 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.

         D ...


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