Commonwealth v. Todd ( 2015 )

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13-P-1766 Appeals Court
COMMONWEALTH vs. KEITH TODD.
No. 13-P-1766.
Essex. February 6, 2015. - August 6, 2015.
Present: Cypher, Hanlon, & Agnes, JJ.
Youthful Offender Act. Grand Jury. Evidence, Grand jury
proceedings. Practice, Criminal, Grand jury proceedings,
Dismissal. Probable Cause. Rape.
Indictment found and returned in the Superior Court
Department on February 26, 2013.
After transfer to the juvenile session of the Gloucester
Division of the District Court Department, a motion to dismiss
was heard by Joseph W. Jennings, III, J.
Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
Patricia L. Garin for the juvenile.
CYPHER, J. A District Court judge granted a motion by the
juvenile, Keith Todd, to dismiss a youthful offender indictment
on a charge of rape of a child. The juvenile argued in his
motion to dismiss that the evidence presented to the grand jury
2
was insufficient to establish that he committed the crime of
rape, specifically that there was insufficient evidence "that
the conduct constituting the alleged sexual assault involved the
infliction or threat of serious bodily harm" and that the grand
jurors were not properly instructed on this element of the
youthful offender statute. The Commonwealth appeals, arguing
that the Commonwealth presented sufficient evidence to sustain
the indictment, where the evidence of the digital penetration,
coupled with the circumstances of the penetration, demonstrated
that the juvenile's conduct involved threat of serious bodily
harm to the victim to sustain a rape charge under the youthful
offender statute.
1. Evidence before the grand jury. Detective Steven
Mizzoni of the Gloucester police department presented the
Commonwealth's case to the grand jury. The juvenile was a
fifteen year old boy; the victim was an eight year old girl.
According to the victim, she had been "playing down the street a
few blocks away" from her house with three boys, including her
brother. One of the boys was performing bicycle tricks, while
the others watched. While the victim was there, the juvenile
allegedly directed her away from where the other boys were
playing to an area of an abandoned building. Once in this area,
the juvenile then allegedly put his hands down the front and
back of the victim's pants. The victim said that when the
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juvenile first put his hand down her pants, he "put his hand a
little bit near her butt" and touched her "butt hole" by
"dragg[ing] his fingers over" it. He allegedly used his fingers
to touch the victim's vagina, "mov[ing] [his fingers] slightly,"
"rubb[ing] against . . . her vagina," and putting one of his
fingers inside her vagina "a little bit." The victim said that
it felt "like a bug [was] inside of her pants." The juvenile
allegedly also asked the victim to rub his leg with her hand,
but she did not do so. After the alleged assault occurred, the
victim went home and told her mother what happened.
Detective Mizzoni, who met with the victim and her mother
at the Gloucester police station after the alleged incident
occurred, was familiar with the abandoned building the victim
described. It had been "vacant for quite a while." The victim
also accurately described to Detective Mizzoni the location of
the alleged incident as "right across from [the juvenile's]
house." The victim told Detective Mizzoni that the other boys
had continued playing in the area where she had been, but that
they would not have been able to see her in the area where the
juvenile allegedly took her.
The juvenile told Detective Mizzoni that he and his brother
were walking to their home on Pleasant Street, at the
intersection of Pleasant and Cedar Streets, in Gloucester. As
they neared their house, a friend on his bicycle approached them
4
and asked the juvenile if he would watch him perform some
bicycle tricks. The juvenile agreed, sitting down against a
wall of a "somewhat abandoned" building on Cedar Street to watch
the bicycle tricks. There were other children playing in the
area, one of whom was the victim.
While the juvenile was watching the performance, the victim
asked the juvenile if he wanted a piece of candy. He accepted.
The juvenile continued to watch his friend perform the bicycle
tricks. He then went home.
2. Procedural history. The grand jury returned an
indictment for rape, based on the evidence presented to it. The
Commonwealth then asked the grand jury to consider whether the
juvenile was a youthful offender. The Commonwealth instructed
the grand jury that to conclude that the juvenile was a youthful
offender they had to find these elements: that the juvenile was
"between fourteen and seventeen years of age at the time of the
offense, said offense being a felony, said offense involving the
infliction or threats of infliction of serious bodily harm, or
said offender previously having been committed to the Department
of Youth Services." The Commonwealth explained that the
youthful offender portion of the indictment would be based on
the testimony the grand jury had already heard because the
Commonwealth had no additional witnesses to present.
5
The motion judge allowed the motion to dismiss with a
margin endorsement setting forth three findings: (1) there was
no caretaker relationship between the victim and the juvenile,
and the victim accompanied the juvenile voluntarily; (2) "the
victim's statements that there was 'a little bit' of penetration
and that [the victim] felt like 'she had a bug in her pants'"
was not "sufficient to establish the charge of rape"; and (3)
there was not "sufficient evidence of a threat of serious bodily
harm[,] noting that no such injury was actually sustained." The
judge made no ruling on the juvenile's argument that the grand
jury instructions were insufficient.
3. Sufficiency of the evidence before the grand jury.
Generally, a motion to dismiss cannot be used to inquire into
the adequacy or competency of the evidence on which an
indictment is based. Commonwealth v. McCarthy, 385 Mass. 160,
161-162 (1982). If, however, there has been no evidence
presented to the grand jury, the validity of the indictment may
be challenged. Id. at 161-163. When considering a motion to
dismiss an indictment, the judge must determine whether the
grand jury heard "sufficient evidence to establish the identity
of the accused . . . and probable cause to arrest him." Id. at
163.
a. Rape indictment. At the hearing on the motion to
dismiss, the defense attorney disavowed an argument in her
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memorandum in support of her motion that the evidence was
insufficient to establish rape and focused instead on the
evidence concerning the requirements of the youthful offender
indictment. Nevertheless, the judge included as a reason for
dismissal that "the victim's statement that there was 'a little
bit' of penetration and that she felt like 'she had a bug in her
pants'" was not sufficient to find penetration and was, "in and
of itself," insufficient "to establish the charge of rape."
This was erroneous as a matter of law, as it is well settled
that penetration, however slight, of a person's genital opening
is sufficient. Commonwealth v. Lopez, 433 Mass. 722, 726-727
(2001).
b. Youthful offender indictment. Where, as here, the
Commonwealth sought to obtain a youthful offender indictment
under G. L. c. 119, § 54, in addition to the indictment for
rape, the Commonwealth was required to offer evidence sufficient
to establish probable cause to show that "(1) the juvenile was
between fourteen and seventeen years old at the time of the
offense; (2) the offense, if committed by an adult, is
punishable by imprisonment in State prison; and (3) the juvenile
has either previously been committed to the Department of Youth
Services, or 'the offense involves the infliction or threat of
serious bodily harm,' or the person committed a violation of
G. L. c. 269, § 10(a), (c), or (d), or § 10E." Commonwealth v.
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Washington W., 462 Mass. 204, 209-210 (2012), quoting from G. L.
c. 119, § 54. Where the evidence is insufficient to establish
probable cause to find that the requirements of the youthful
offender statute have been met, a judge may dismiss the
indictment. See Commonwealth v. Quincy Q., 434 Mass. 859, 863,
865 (2001). See also Commonwealth v. Mogelinski, 466 Mass. 627,
652-653 (2013) (Gants, J., concurring in part and dissenting in
part). When making such a determination, the evidence is
examined in the light most favorable to the Commonwealth.
Washington W., supra at 210.
In the case at bar, the juvenile focuses exclusively on the
third element of the youthful offender statute and argues that
the evidence was insufficient to establish the infliction or
threat of serious bodily harm.1 Our decisional law has
considered this particular element in the context of the
youthful offender statute on a handful of occasions. See, e.g.,
Commonwealth v. Clint C., 430 Mass. 219 (1999); Quincy Q.,
supra; Washington W., supra; Felix F. v. Commonwealth, 471 Mass.
513 (2015).2 "[W]here a prosecutor seeks a youthful offender
1
We note that none of the other bases for establishing this
element is applicable in this case.
2
In Felix F., the juvenile was indicted as a youthful
offender for possession of heroin with intent to distribute.
The court held "that the definition of 'threat' in the juvenile
offender statute requires a communication or declaration,
explicit or implicit, of an actual threat of physical injury by
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indictment relying on 'the infliction or threat of serious
bodily harm' component of the statute, the conduct constituting
the offense must involve the infliction or threat of serious
bodily harm." Quincy Q., supra at 863. See Clint C., supra at
226. It is necessary to consider the "actual conduct undertaken
by the defendant, rather than merely the elements of the
underlying crime, in determining whether an indictment is
authorized under" the youthful offender statute. Commonwealth
v. Hoshi H., 72 Mass. App. Ct. 18, 19 (2008).
In Clint C., a fifteen year old juvenile was babysitting
his six year old niece and put his penis in her mouth, making
her perform fellatio while she stroked his penis without threats
or physical injury. Although the underlying charge was
statutory rape, which contained no requirement of force, threat,
or lack of consent, the Supreme Judicial Court ruled that "the
invasive nature of the act of penetration created the threat of
serious bodily harm." Clint C., supra at 226. The court added
the juvenile." Felix F., 471 Mass. at 516. Recognizing that
the underlying crime in that case does not "involve an explicit
threat and there is no identifiable victim," id. at 517, the
court concluded that the threat requirement was not satisfied.
Id. at 516. Here, the age difference between the juvenile and
the victim, along with the fact that the juvenile directed her
away from a public area to a private location where the rape
occurred, is sufficient to establish an implicit threat of
serious bodily harm. Id. at 517, citing Washington W., 462
Mass. at 210.
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that "[t]he juvenile's position of authority, the age difference
between the juvenile and the victim, and the vulnerability of
the victim are sufficient to support a youthful offender
indictment," and vacated the dismissal of the indictment. Ibid.
In Quincy Q., the fifteen or sixteen year old juvenile was
alleged to have touched the vagina of a young girl and to have
forced her to touch his penis over a period of two years and on
at least ten occasions when the girl was between the ages of
three and five, evidence that supported a charge of indecent
assault and battery.3 The Supreme Judicial Court concluded that
"the touching involved in this case is not sufficiently invasive
in nature (as compared to penetration) to create the threat of
serious bodily harm," and ruled that the motion judge erred in
denying the juvenile's motion to dismiss the indictment. Quincy
Q., supra at 863-864.
In Washington W., the Supreme Judicial Court held that the
act of the juvenile pushing a similarly aged child to the
ground, pulling down the child's pants, and entering the child's
anus with his penis was sufficient evidence of the threat of
serious bodily harm to support a finding of probable cause
necessary to establish the requirements of the youthful offender
3
Although the juvenile in Quincy Q. was also charged with
rape, the youthful offender indictment at issue in Quincy Q. was
related solely to the charge of indecent assault and battery.
See generally Quincy Q., 434 Mass. at 863-864.
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indictment. Washington W., supra at 210.4 The court declined to
rule generally, however, that penetration "alone, in every
circumstance, creates a threat of serious bodily harm." Id. at
210 n.4.
The facts of this case are closest to those of Clint C. in
terms of the conduct that allegedly occurred. The evidence
shows that the fifteen year old juvenile took an eight year old
child to a secluded area and penetrated her vagina with his
finger. As in Clint C., supra at 226, "the invasive nature of
the act of penetration created the threat of serious bodily
harm," and the age difference between the juvenile and the
victim and the vulnerability of the victim "are sufficient to
support a youthful offender indictment."
In addition, the case at bar can be distinguished from the
facts at issue in Quincy Q., where the youthful offender
indictment was rejected on the basis that there was no
penetration, but merely an indecent touching that the court
found insufficient "to create the threat of serious bodily
harm." Quincy Q., supra at 863.
4
The court held, however, that the indictment should have
been dismissed on the unrelated ground of the Commonwealth
having withheld exculpatory evidence from the grand jury.
Washington W., supra at 211-213.
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4. Instruction to grand jury on "youthful offender"
indictment. The requirements of G. L. c. 119, § 54, were set
forth in the indictment at issue here and the indictment was
read to the grand jury by the prosecutor, including a recitation
of the three requisite elements. No additional instruction was
provided to the jury. The juvenile argues that there is no
reason to believe that the grand jurors understood what they
were expected to decide in hearing the indictment alone.
"Generally speaking, the Commonwealth is not required to
provide legal instructions on the elements of an offense for
which it seeks an indictment, out of a concern that such a
requirement 'would add delay and complexity without serving any
significant purpose.'" Commonwealth v. Rex, 469 Mass. 36, 41
n.10 (2014), quoting from Commonwealth v. Noble, 429 Mass. 44,
48 (1999). While decisional law has recognized two limited
exceptions to this general rule, neither is applicable here.
See Noble, supra (where grand jury requests legal instruction,
"prosecutor should have provided the appropriate information");
Commonwealth v. Walczak, 463 Mass. 808, 810 (2012) (where there
is substantial evidence of mitigating circumstances or defenses
in murder case where defendant is juvenile, grand jury must be
instructed on elements of murder and mitigating circumstances
and defenses). More was not required in this case where the
grand jury had before them the indictment, which the prosecutor
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had read out loud, and which set forth in plain language the
elements of the youthful offender statute.
Order allowing motion to
dismiss vacated.