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Commonwealth v. Benedito

Appeals Court of Massachusetts, Middlesex

June 27, 2019

COMMONWEALTH
v.
EDEMAR J. BENEDITO.

          Heard: May 14, 2019

         Complaint received and sworn to in the Lowell Division of the District Court Department on August 3, 2017.

         The case was tried before J. Elizabeth Cremens, J.

          Eric W. Ruben for the defendant.

          Timothy M. Federico, Assistant District Attorney, for the Commonwealth.

          Present: Blake, Henry, & McDonough, JJ.

          HENRY, J.

         While the defendant was naked, he kissed his girlfriend's sister on the mouth, without insertion or attempted insertion of the tongue, while she was sleeping and without her consent. The question is whether such circumstances present sufficient evidence for a conviction of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H. We conclude that they do and affirm the judgment.

         Background.

         Viewed in the "light most favorable to the Commonwealth," the jury could have found as follows. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In November of 2016, the then twenty-three year old victim went to her sister's (Maricel)[1] apartment around 11:30 P.M. Upon realizing that Maricel and her boyfriend, the forty-two year old defendant, [2] were asleep in Maricel's bed, the victim fell asleep fully clothed on the living room couch.

         At some point in the night, the victim awoke to the defendant kissing her on the lips. The defendant was naked, kneeling next to the couch, and hovering over the victim. The victim stood up and shouted, "What are you doing? Why are you doing this?" The defendant replied, "I couldn't help myself. I didn't know what I was doing."

         The victim immediately went to Maricel's bedroom for help. Maricel, who was woken up by the victim's screaming, went into the living room and saw the defendant unclothed, who by that time had a towel wrapped around his waist.[3] The defendant then apologized. The victim did not feel comfortable remaining in the apartment and left within minutes of informing Maricel about the incident. The victim and Maricel reported the incident to the police. The defendant was convicted of indecent assault and battery on a person over the age of fourteen.

         Discussion.

         The defendant contends that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to offer sufficient evidence to prove the element of indecency. "To prove indecent assault and battery on a person age fourteen or older, the Commonwealth is required to establish that the defendant committed 'an intentional, unprivileged, and indecent touching of the victim.'" Commonwealthv.Kennedy, 478 Mass. 804, 810 (2018), quoting Commonwealthv.Marzilli, 457 Mass. 64, 67 (2010), overruled on other grounds by Commonwealthv.LaBrie, 473 Mass. 754 (2016). Conduct is "indecent" when it is "fundamentally offensive to contemporary moral values . . . which the common sense of society would regard as immodest, immoral, and improper." Commonwealthv.Mosby,30 Mass.App.Ct. 181, 184 (1991). The entire context of the offensive touching must be examined. See Commonwealthv.Cruz, 93 Mass.App.Ct. 136, 139 (2018), citing Commonw ...


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