Heard: May 14, 2019
received and sworn to in the Lowell Division of the District
Court Department on August 3, 2017.
case was tried before J. Elizabeth Cremens, J.
W. Ruben for the defendant.
Timothy M. Federico, Assistant District Attorney, for the
Present: Blake, Henry, & McDonough, JJ.
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
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) apartment around 11:30 P.M. Upon realizing
that Maricel and her boyfriend, the forty-two year old
defendant,  were asleep in Maricel's bed, the
victim fell asleep fully clothed on the living room couch.
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."
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. 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.
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
Mass.App.Ct. 136, 139 (2018), citing Commonw ...