Commonwealth v. Holbrook ( 2014 )

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12-P-1881 Appeals Court
COMMONWEALTH vs. CLIFTON HOLBROOK.
No. 12-P-1881.
Suffolk. June 5, 2014. - September 26, 2014.
Present: Cohen, Carhart, & Maldonado, JJ.
Indecent Assault and Battery. Practice, Criminal, Motion to
suppress, Instructions to jury. Intent.
Indictment found and returned in the Superior Court
Department on November 12, 2008.
A pretrial motion to suppress evidence was heard by Frank
M. Gaziano, J., and the case was tried before Thomas A. Connors,
J.
William A. Korman for the defendant.
Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
COHEN, J. After a Superior Court jury trial, the defendant
was convicted of indecent assault and battery of a child under
the age of fourteen, arising from an incident involving his five
year old grandniece. On appeal, the defendant makes the
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following claims: (1) his motion to suppress statements made
during his police interview should have been allowed because he
was intoxicated at the time he waived his Miranda rights; (2) it
was error to deny his motion for a required finding of not
guilty because he was only a passive recipient of the indecent
touching and did not intend for it to happen; and (3) the judge
erred in instructing the jury as to how the element of intent
could be satisfied. We affirm.
1. Motion to suppress. The defendant waived his Miranda
rights after having been informed of them twice -- first at
booking and again at the beginning of the recorded interview.
He affirmed that he understood each of the rights and initialed
an acknowledgment. When asked if he was "under the influence of
alcohol or any drugs right now," the defendant responded in the
negative. He now argues that, in fact, he was impaired by
alcohol and drugs when he gave the statement, and his waiver
therefore was invalid.
The evidence at the motion hearing consisted of an
audiotape recording of the interview and the testimony of three
witnesses: the two detectives who conducted the interview, and
the defendant's sister. Because the motion judge considered the
audiotape in light of the hearing testimony and made credibility
determinations relevant to his subsidiary findings of fact, we
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afford those findings substantial deference. See Commonwealth
v. Clarke, 461 Mass. 336, 341 (2012).
The judge found that the detectives had the opportunity to
assess the defendant's sobriety, and credited their testimony
that the defendant was not under the influence of alcohol or
narcotics. The detectives testified that the defendant had no
difficulty walking, did not slur his speech, and appeared to
understand the proceedings. Consistent with the audiotape
recording, they also reported that he responded to numerous
questions and provided a coherent narrative.
The judge also credited the testimony of the defendant's
sister that the defendant had ingested an unknown quantity of
alcohol and drugs before going to the police station. However,
the judge found that this did not undermine the testimony of the
detectives, given that the interview took place several hours
after his sister lost sight of the defendant and, contrary to
his sister's description of the defendant's behavior when
intoxicated, he was able to answer questions cogently.
Because the judge's findings are warranted by the evidence
and fully support the conclusion that the defendant's waiver of
his Miranda rights was not rendered involuntary due to
intoxication, it was not error to deny the motion to suppress.
2. Sufficiency of the evidence. Viewing the evidence in
the light most favorable to the Commonwealth, Commonwealth v.
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Latimore, 378 Mass. 671, 677 (1979), the jury could have found
the following facts. In July, 2008, the defendant's five year
old grandniece and her immediate family were residing with the
defendant and other relatives in the defendant's mother's house.
The incident in question began when the child entered the
defendant's bedroom and asked if she could watch television with
him. The defendant, who was lying in his bed, agreed and
allowed the child to get under the blanket with him. In his
statement to the police, the defendant gave the following
account of what then transpired. As they were watching
television, the child put her hand in the defendant's pants and
"grabbed" his penis, pulling it over the elastic of his
underwear. She "was playing with it . . . like she knew what
she was doing" and was "knead[ing]" and "wiggl[ing]" it "like my
wife would." While she did this, the defendant's penis became
erect. The defendant did not stop her for another ten seconds,
at which point he told her to leave. The defendant stated that
the child had "played with" his penis for "about a minute."
The defendant claims here, as he did at trial, that he was
only a passive participant in the touching and, hence, there was
insufficient evidence to prove that he intended to commit the
offense.1 This argument is without merit. The fact that the
1
The defendant does not claim that the evidence was
insufficient in any other respect.
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defendant did not directly perform the touching does not
preclude his conviction of indecent assault and battery of a
child. See Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 75-
76 (2007) (affirming the defendant's conviction where he
encouraged the child victim to touch his penis as part of a
game). See also Commonwealth v. Nuby, 32 Mass. App. Ct. 360,
362 (1992) (affirming the defendant's conviction where he forced
the child victims to fondle their mother's breasts).
Furthermore, even when there is "no direct evidence of the
defendant's intent," the fact finder may "infer the element of
criminal intent from the circumstances." Commonwealth v.
Correia, 381 Mass. 65, 83 (1980). To be sure, there will be
situations where a child's spontaneous initiation of indecent
contact with an adult will not give rise to a reasonable
inference that the adult possessed criminal intent, such as
where the adult immediately calls a halt to the activity. Here,
however, the defendant's intent to commit an indecent assault
and battery on the child readily may be inferred. Even if the
child's initial grabbing of the defendant's penis was
spontaneous and unexpected, the defendant permitted her to touch
him in a sexual manner for "about a minute" before finally
telling her to leave the room. In these circumstances, the jury
reasonably could conclude from the defendant's acquiescence in
her behavior that he intended the prohibited contact.
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Other evidence only bolstered this inference. The child's
mother testified before the grand jury that the child had been
found in the defendant's bedroom on other occasions. She
described one particular instance where she discovered the child
and the defendant under the covers together in the defendant's
bed. The defendant was at least partially undressed at the
time; she could see his bare shoulders and that he was not
wearing a shirt. The child's mother also recounted another
instance where she found the child seated on the defendant's lap
on the back porch of the house. The defendant was wearing a t-
shirt and shorts, and the child's hand was inside his shorts up
to the middle of her forearm. The mother immediately told the
child to get off the defendant's lap and addressed the
defendant, saying, "What are you doing? You're a grown man!"
The defendant's reply was, "Well, she put it there."
Called by the Commonwealth as a witness at trial, the
child's mother claimed not to remember what she told the grand
jury. However, after voir dire, the judge found that her lack
of memory was feigned. He therefore admitted her grand jury
testimony for substantive purposes,2 subject to a limiting
instruction given in the final charge that, if believed, the
defendant's prior acts could be used "only for the limited
2
See Commonwealth v. Daye, 393 Mass. 55, 73-75 (1984);
Commonwealth v. Sineiro, 432 Mass. 735, 741 (2000).
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purpose of what light, if any, [they] cast[] upon [his] motive,
intent or state of mind."
Although the defendant all but ignores this evidence in his
brief, his earlier behavior with the child solidified the
inference that during the incident forming the basis of the
charge, the defendant willingly and intentionally engaged in
improper contact with her.
3. Jury instruction. The defendant's jury instruction
argument fares no better than his argument on sufficiency. The
judge instructed the jury that the Commonwealth was required to
prove that the defendant intended that the child touch his penis
with her hands, and that the Commonwealth had to prove beyond a
reasonable doubt that the touching was not inadvertent. He
further instructed that, in determining whether to infer intent,
they were to consider all of the facts and circumstances.
Finally, he told the jury that they must be "satisfied that the
Commonwealth has proven beyond a reasonable doubt that [the
defendant] intended and permitted [the child] to touch his penis
with her hand and that this was not done by any accident and not
done by any inadvertence."
The defendant argues on appeal that the use of the phrase
"intended and permitted" was error, because the defendant could
only be found guilty if he had coerced, cajoled, compelled, or
created some incentive for the child to act as she did, as was
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true in Commonwealth v. Nuby, 32 Mass. App. Ct. at 362, and
Commonwealth v. Davidson, 68 Mass. App. Ct. at 75-76. Passing
the question of the applicable standard of review, there was no
error in the instruction. Nothing in either Davidson or Nuby
limits the proof of intent to commit indecent assault and
battery upon a child in the manner posited by the defendant. As
previously observed, intent may be proved by circumstantial
evidence, including, as here, evidence that the defendant
permitted prolonged indecent contact with the child.
Judgment affirmed.