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16-P-202 Appeals Court
A.P. vs. M.T.
No. 16-P-202.
Essex. January 6, 2017. - September 1, 2017.
Present: Kafker, C.J., Hanlon, & Agnes, JJ.1
Civil Harassment. Harassment Prevention. Evidence, Cross- examination, Identification. Identification.
Complaint for protection from harassment filed in the Essex County Division of the Juvenile Court Department on October 30, 2015.
The case was heard by Mark Newman, J.
Benjamin L. Falkner for the defendant.
HANLON, J. After a hearing, a Juvenile Court judge
extended a civil harassment order, pursuant to G. L. c. 258E,
against a juvenile (the defendant, M.T.) who, along with another
boy, was accused of committing an indecent assault and battery
1 Chief Justice Kafker participated in the deliberation on this case and authored the concurring opinion while the Chief Justice of this court, prior to his appointment as an Associate Justice of the Supreme Judicial Court. 2
on a four year old neighbor girl (the plaintiff, A.P.). M.T.
now appeals the ex parte order and the extension, arguing that
(1) the evidence was insufficient to support the issuance of the
order; (2) the judge abused his discretion in limiting the
cross-examination of A.P.'s mother (mother); and (3) the
mother's in-court identification of M.T. and the other boy was
improper. M.T. asks this court to vacate the order and expunge
all records or, in the alternative, to vacate the order and
remand for further proceedings.2 We affirm.
Background.3 A.P. and M.T. and their families live on a
cul-de-sac. Their properties border one another, and are
separated by a fence. The other boy's property is in the same
cul-de-sac, but does not border A.P.'s property. At the time of
the incident, A.P. was four years old and had developmental
delays related to speaking and expression.
At the ex parte hearing, A.P.'s father (father) appeared
alone and testified that he was at work when he received a
2 The order was issued against both boys, but only M.T. filed an appeal. The record does not reveal the age of either boy. At oral argument, M.T.'s counsel informed us that his client was eight years old. 3 The facts are drawn from testimony and evidence presented at the ex parte hearing and the hearing after notice. The same judge presided over both hearings and, at the outset of the hearing after notice, counsel for M.T. and the other boy indicated that they had reviewed the ex parte order and the mother's affidavit. 3
telephone call from the mother.4 The father summarized the
events as the mother had relayed them to him:
"[A.P.] was in the backyard in our fenced-in yard playing. We have a swing set, jungle gym, and some toys. And my wife's Vietnamese. She's pretty protective, generally won't let the kids out of her sight for more than [ten] to [twenty] minutes, if that. So I don't know how long she was out there.
"But my wife went to the back door and hollered [A.P.]'s name. And our jungle gym sort of blocks -- there's a blind spot right behind the jungle gym. And [A.P.] came running from behind the jungle gym holding her underwear and no clothes. She was naked. And the two boys jumped the fence and just ran back to their homes."
Based on the father's testimony, the judge issued an ex parte
order and scheduled a hearing after notice.
At the hearing after notice before the same judge, the
mother testified with an interpreter and was cross-examined; we
summarize her testimony.5 She explained that she knew the boys
because they had played with A.P. and also with a third boy who
had lived in her home; that boy had since returned to his home
in Vietnam. On the day of the incident, she was painting a door
when she heard her daughter's voice. "I heard her excitement
because she loves to play with [M.T.]. And then I looked . . .
4 The father's testimony essentially tracks the mother's affidavit, filed at the time of the hearing on the ex parte order. 5 The mother's direct testimony was brief, occupying perhaps twelve pages of transcript, including arguments of counsel at various points. 4
out through the door, and I saw [M.T.] climbing the fence. . . .
So [A.P.] pushed the door open and the two boys came . . . into
the house." The mother said that the boys had climbed the fence
before "just like in Vietnam, you know. That's what kids do."
When M.T. asked about the third boy, she told the two boys that
he had gone back to Vietnam.
The boys played in the house for a few minutes, and then
went outside. A.P. asked to follow the boys and the mother
initially said no. The mother stated that she was reluctant to
agree because the boys "play so rough and they make her cry."
However, A.P. cried and begged to go; eventually, the mother
allowed A.P. to follow the boys. "So I told her put on your
shoes and your jacket and go outside because it's cold outside
and Mommy will join you right away."6
The mother testified that, after agreeing to let A.P. go,
she did not "feel . . . good" about the situation and,
eventually, decided to go outside herself. "[S]o I went and
washed my hands . . . [and] after I washed my hands, I didn't
even get out to the back door . . . and [A.P.] came running
inside. She slammed the door and she said, 'Mom, help me, help
me.'" A.P. was "holding onto her underwear, her panty" and
wearing nothing else. "So I told her it's cold outside, why did
6 When A.P. went outside "she was completely dressed. She had a dress on and I put on her shoes and her jacket. She knew that it was cold." 5
you take -- remove your jacket." When the mother went outside
to determine what had happened, she saw the boys running away.
"As they were running, they turned back to look at us, and I
just felt funny about that." A.P.'s clothes were piled outside
near her toys. Inside, the mother inspected A.P. and saw "some
spot and stain" on her underwear.
The mother telephoned the father and, when he told her that
the police were on their way, she took photographs of her
daughter. The photographs were admitted in evidence at the
hearing, and we have seen them as well. There is a photograph
of A.P. from earlier in the day when she went to school; in the
photograph, she is fully dressed in a pink dress, a white
sweater, and pink shoes, with her arms outstretched in a yard
with fallen leaves. As the father testified, "And then later on
when the incident took place, she was still wearing that dress
but with another jacket." Taken after the incident, three other
photographs show A.P. lying with her legs spread and wearing
only underpants. She was smeared with mud on her bare feet, her
legs and knees, and on her underwear between her legs, in the
area of her bottom up into her crotch area. The mother
testified that she tried to ask A.P. what had happened, but the
four year old would not say anything beyond "that person, that
person." In addition, the father told the judge that a doctor's 6
report included observations of fresh abrasions and bruising on
A.P.'s body.7
The judge then asked the mother if she could identify the
two boys from that day. That exchange, with the defendants'
objections, transpired as follows:
Judge: "Okay. And you described seeing two boys that day? Do you --"
Mother: "That's right."
Judge: "Do you see those two boys in the courtroom today?"
Counsel for the other boy: "Objection."
Mother: "One here, one here."
Counsel for M.T.: "Objection, Judge."
Judge: "Okay. I'll note your -- "
Mother: "[M.T.] was wearing an orange-color outfit, and I'm not sure what this -- his name. He was wearing something gray maybe, but I didn't pay much attention to what he was wearing. Because [M.T.] actually said hi."
Counsel for M.T.: "Judge, I object. That couldn't be a more suggestive identification."
Judge: "Right. But, again, this is not a penal or a criminal hearing. It's a civil hearing."
On cross-examination, M.T.'s attorney elicited the
following testimony from the mother: (1) she never saw M.T. or
7 The father told the judge at the hearing after notice, "My pediatrician called me as I was driving in saying they've got a copy of the hospital report, but it was too late because I was coming here. I'm going to go get that report when I leave." 7
the other boy touch A.P. or remove her clothing; (2) it was
uncommon for A.P. to take off her own clothes and she only does
so when she takes a bath; "[e]ven then if you try to remove her
underwear she would cry"; (3) the mother's prior testimony about
A.P. playing "rough" referred to playing on the slide and
playing on the father's shoulders;8 (4) A.P. rarely comes in
dirty from playing outside and when she does she tells her
mother that she is dirty and asks her mother to change her
clothes. After M.T.'s attorney cross-examined the mother for a
relatively brief period of time (approximately four pages of
transcript), the judge cut off the cross-examination, explaining
that "this is a very limited hearing" and that it was customary
to hear from both parties but not to have examinations. M.T.'s
attorney objected to the limitation and also objected to the
admission of evidence that violated "the rules of evidence."
The other boy's attorney continued the line of questioning
relating to whether A.P. had a history of getting dirty while
playing outside. The judge then asked if there was any evidence
or testimony from the defendants, and both counsel responded in
the negative. The judge heard final arguments and
8 On cross-examination, the mother clarified that, "playing rough doesn't mean that she likes to . . . [take] off her clothes. . . . She likes to play on the slide. So when I say playing rough, meaning, like -- for example, when she plays with Daddy, Daddy would put her on Daddy's shoulder, and then they turn around like that. We don't play like that in Vietnam, and that I meant rough." 8
recommendations from both defendants' attorneys; each argued
that there was insufficient evidence to support an extension of
the order.
At the end of the hearing, the judge described the evidence
as "circumstantial," but noted that he found the photographs
"compelling" and that he had made copies for the record. He
also considered "the child's state of mind at the time and her
reaction to the circumstances and the fact that [the] mother
observed this." He concluded there was "sufficient evidence to
issue a civil harassment order [for] indecent assault and
battery on a child under the age of [fourteen] where consent is
not a defense [and] the circumstantial evidence here is
sufficient to support it."
Discussion. We review harassment prevention orders under
G. L. c. 258E to determine "whether the judge could find, by a
preponderance of the evidence, together with all permissible
inferences," that the defendant had committed one or more of the
enumerated sex crimes or three or more specific acts of wilful
or malicious conduct. Gassman v. Reason, 90 Mass. App. Ct. 1, 7
(2016). See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 598-599
(2015).
Harassment prevention orders under G. L. c. 258E were
"intended to protect victims who could not legally seek
protection under G. L. c. 209A," when the victims did not 9
satisfy the relationship requirement for jurisdiction under
c. 209A. Seney v. Morhy, 467 Mass. 58, 60 (2014), citing
O'Brien v. Borowski, 461 Mass. 415, 419 (2012). As a result,
the language in c. 258E is "analogous to the language found in
c. 209A." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109 (2017).
For this reason, for the most part, both the Supreme Judicial
Court and this court have applied the case law relating to
c. 209A to cases arising under c. 258E. See O'Brien, supra at
418-420 (noting distinctions between c. 209A and c. 258E);
Seney, supra at 62 (following case law related to c. 209A when
determining proper appellate procedure for c. 258E orders);
J.S.H., supra at 109-112 (applying c. 209A expungement standards
to c. 258E proceedings). In addition, this court has cited the
Guidelines for Judicial Practice: Abuse Prevention Proceedings
(guidelines), which apply to c. 209A orders, when analyzing
c. 258E orders. See, e.g., F.A.P., supra at 601 n.14 ("[W]e see
no reason why the [guidelines] should not apply equally in
harassment order proceedings, absent some issue particular to
harassment orders"). Furthermore, the Massachusetts Guide to
Evidence applies the same evidentiary standards to c. 209A and
c. 258E orders. See Mass. G. Evid. § 1106 (2017).
The purpose of proceedings under c. 258E, like those under
c. 209A, is "protective, not penal," A.T. v. C.R., 88 Mass. App.
Ct. 532, 540 (2015), and in these cases, "the rules of evidence 10
need not be followed, provided that there is fairness in what
evidence is admitted and relied on." Frizado v. Frizado, 420
Mass. 592, 597-598 (1995). In reviewing the issuance of the
c. 258E order in this case, we have in mind the mandate that
abuse prevention proceedings should be as "expeditious and
informal as reasonably possible." Zullo v. Goguen, 423 Mass.
679, 681 (1996), citing Frizado, supra at 598.
We also note that, although M.T.'s age, eight years old,
certainly is concerning, the Legislature explicitly provided
that the "juvenile court department shall have exclusive
jurisdiction" over harassment prevention order proceedings when
a defendant is under the age of eighteen. G. L. c. 258E, § 2,
as amended by St. 2014, c. 284, § 74. "As a result, it is fair
to conclude that, when the Legislature deliberately entrusted to
the trial court department most experienced with juveniles
exclusive authority to issue harassment orders against them, it
had young people's limitations and abilities particularly in
mind." A.T., 88 Mass. App. Ct. at 539. Compare Commonwealth v.
Ogden O., 448 Mass. 798, 803 (2007) ("[T]he Commonwealth has
developed a system, set forth by legislative enactment in G. L.
c. 119, §§ 52-84, for dealing with delinquent children . . . in
a manner that affords them greater protections than those
afforded adults in the traditional criminal justice system. See
Commonwealth v. Walter R., [414 Mass. 714, 718 (1993)]. See 11
also R.L. Ireland, Juvenile Law § 1.3 [2d ed. 2006] [discussing
philosophy of delinquency proceedings]. This system has
rendered a defense of incapacity based on youth, to the extent
that it ever may have existed in the Commonwealth, inapplicable
to current juvenile proceedings"). In a footnote, the Ogden O.
court continued, supra at 803 n.4, "A '[d]elinquent child' is 'a
child between seven and seventeen who violates any city
ordinance or town by-law or who commits any offence against a
law of the commonwealth.' G. L. c. 119, § 52."
General Laws c. 258E provides a number of definitions of
"harassment."9 The second definition "applies to situations
where, as here, a defendant allegedly committed one or more acts
of sexual misconduct. G. L. c. 258E, § 1 (definition of
'harassment,' subsection [ii])." F.A.P., 87 Mass. App. Ct. at
599. "Under this definition, . . . a plaintiff can prove that a
defendant committed any of [ten] specifically enumerated sex
9 The first definition requires at least three acts of "willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property," and that in fact causes fear, intimidation, abuse, or damage to property. G. L. c. 258E, § 1, inserted by St. 2010, c. 23. In addition, an act "that constitutes a violation of section . . . 43 [stalking] or 43A [criminal harassment] of chapter 265" meets the statute's definition of "[h]arassment." Ibid. None of these other definitions is at issue here. 12
crimes, including -- as relevant here," indecent assault and
battery.10 Ibid.
a. Sufficiency of the evidence. M.T. argues first that
the evidence was insufficient to prove, by a preponderance of
the evidence, that M.T., either alone or with the other boy,
committed an indecent assault and battery on A.P.11 See id. at
599-600.
"This court . . . has stated: The test for indecent assault and battery . . . is an objective one that is bounded by contemporary moral values . . . . The measure of indecency is common understanding and practices. Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 300 (1994), S.C., 420 Mass. 508 (1995), quoting from Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982). A touching is indecent when, judged by the normative standard of societal mores, it is violative of social and behavioral expectations, Commonwealth v. Gallant, 373 Mass. 577, 580-581, 589 (1997), in a manner which [is] fundamentally offensive to contemporary moral values . . . [and] which the common sense of society would regard as immodest, immoral and improper. Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting from Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43 (1985). So defined, the term indecent affords a reasonable opportunity for a person of ordinary intelligence to know what is prohibited. Commonwealth v. Conefrey, 37 Mass. App. Ct. at 302, quoting from Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986)."
10 "Whoever commits an indecent assault and battery on a child under the age of 14 shall be punished." G. L. c. 265, § 13B, as appearing in St. 2008, c. 205, § 1. 11 Proof beyond a reasonable doubt that M.T. committed the crime is left for any delinquency proceedings. F.A.P., supra at 599. Furthermore, in this form of harassment, "[p]roof that the defendant intended to instill fear, and in fact did so, would be wholly unnecessary." Ibid. 13
Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 565-566 (2002),
quoting from Commonwealth v. Lavigne, 42 Mass. App. Ct. 313,
314-315 (1997) (quotations omitted). Here, based on the
evidence presented, it was reasonable for the judge to conclude
the standard was met.
As noted, the evidence the judge considered included the
mother's testimony, photographs of A.P. before and after the
incident, and the father's statement regarding the results of
the doctor's examination. If the judge credited the mother's
testimony, and his findings and conclusion at the end of the
hearing indicate that he did, taking that testimony together
with reasonable inferences, the judge reasonably could have
concluded that it is more likely than not that M.T. committed an
indecent assault and battery against A.P. by removing her
clothing or forcing her to remove it herself. Because she was
four years old, consent was not an issue. See Commonwealth v.
Knap, 412 Mass. 712, 714-715 (1992).
The mother testified that it was cold outside and that A.P.
was fully clothed when she went to play; A.P. was outside alone
with the boys; she never had removed her clothing while playing
outside; she ran into the house with nothing but underpants on,
holding onto them, and crying, "Mommy, help me." When asked
what had happened, A.P. could only say, "[T]hat person." She
had mud on the crotch of her underpants and smeared over her 14
bare feet and legs; a doctor found evidence of fresh abrasions
and bruising.
Our case law supports a conclusion that taking a child's
clothing off or forcing her to do so in these circumstances
constitutes an indecent assault and battery. See Commonwealth
v. Kopsala, 58 Mass. App. Ct. 387, 393 (2003) (upholding
conviction of indecent assault and battery when defendant
"pulled up the victim's shirt, exposing her breasts, unbuttoned
her jeans and pulled them off, and removed her panties");
Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 74 (2007)
("[O]ur cases do not require that the defendant himself perform
the touching. Thus in Commonwealth v. Nuby, 32 Mass. App. Ct.
360, 362 [1992], we held that a defendant who forced the victims
'to fondle their mother's breasts' was guilty of indecent
assault and battery upon two children under the age of fourteen
under G. L. c. 265, § 13B. We also held adequate the judge's
instruction that the perpetrator need not himself perform the
indecent touching if he directs or commands the victim to touch
a third person in a manner that would be offensive. Id. at 363-
364").
In Commonwealth v. Portonova, 69 Mass. App. Ct. 905, 905
(2007), the basis for the indecent assault and battery charge
was a claim that the defendant had "direct[ed] the victim to rub
her vagina." We rejected "[t]he defendant's argument that G. L. 15
c. 265, § 13F [the statute proscribing indecent assault and
battery on a mentally retarded person], proscribes only those
forced offensive touchings in which the perpetrator directly
engages in the 'sexual contact' that causes the offensive
touching." Ibid. We noted that that argument "has been
rejected by our cases," citing Nuby, supra; Davidson, supra.
"In Davidson, we pointed out that 'our cases do not require that
the defendant himself perform the touching.' . . . As in Nuby
and in Davidson, '[t]he gravity of the conduct rises to the
level which the[] statute[] [was] designed to prohibit.'"
Portonova, supra at 905-906 (citations omitted).
Even if M.T. did not himself take off A.P.'s clothing or
order her to do so, but merely stood by while the other boy did
so and then ran away with him, M.T.'s presence during the act
and, in particular, in running away with the other boy are
evidence that he shared the other boy's purpose. See
Commonwealth v. Figueroa, 451 Mass. 566, 579 (2008) ("'It is
well settled that evidence of flight may be introduced to show
consciousness of guilt.' Commonwealth v. Carita, 356 Mass. 132,
140 [1969]"). It is true that "[e]vidence that an accused
associated with persons who committed the crime does not
'justify an inference that [he also] participated in [its]
commission.'" Commonwealth v. Saez, 21 Mass. App. Ct. 408, 410
(1986) (citation omitted). However, other actions can support a 16
conclusion that a defendant participated in the commission of
the crime under a joint venture theory.
To prove joint venture, it must be shown "that the
defendant 'knowingly participated in the commission of the crime
charged, alone or with others, with the intent required for that
offense.'" Commonwealth v. Colton, 477 Mass. 1, 11 (2017),
quoting from Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
"There is no requirement . . . [to] prove precisely what role
the defendant played -- whether he acted as a principal or an
accomplice (or joint venturer)." Commonwealth v. Silva, 471
Mass. 610, 621 (2015).
Moreover, joint venture can be proved with circumstantial
evidence, including flight from the scene together. See
Commonwealth v. Garcia, 470 Mass. 24, 31-32 (2014); Commonwealth
v. LeClair, 68 Mass. App. Ct. 482, 489 (2007). Finally, of
course, "[a] person's knowledge or intent is a matter of fact,
which is often not susceptible of proof by direct evidence, so
resort is frequently made to proof by inference from all the
facts and circumstances . . . . The inferences drawn by the
[fact finder] need only be reasonable and possible and need not
be necessary or escapable." Commonwealth v. Casale, 381 Mass.
167, 173 (1980).
The evidence established that the two boys visited A.P.'s
home together; all three children were outside playing alone 17
together for a very short period of time; A.P. came running in,
crying for help and without most of her clothing; when the
mother went to look for A.P.'s clothing, she saw both boys
running away; they looked back at her, but kept on running.
We acknowledge that flight from a scene by young children
may call for a different analysis from that of flight by adults.
Here, however, the two boys knew both the mother and A.P. and
had been in their home only moments earlier; there is no
evidence that they had removed any of their own clothes or had
gotten particularly muddy in the very short period of time that
they were alone with A.P. Combined with A.P.'s apparent
distress and statements, "[H]elp me" and "[T]hat person," after
the mother prodded her for information, the evidence was
sufficient for the judge to conclude, under a preponderance of
the evidence standard, that at least one of the boys either took
off A.P.'s clothes or commanded her to do so, and put her or
ordered her on to the muddy ground while the other aided in some
manner. See Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 711
(2011) (joint venture may be shown by evidence that each
defendant "was willing and available to assist if necessary"
[citation omitted]).
The facts here are not dissimilar to those found sufficient
to support a harassment prevention order in F.A.P., 87 Mass.
App. Ct. at 600. In that case, "there was evidence that a seven 18
year old girl suffered a labial tear directly after having been
alone with a defendant who had previously engaged in an indecent
touching of her. That evidence was sufficient to support a
finding, by a preponderance of the evidence, that the defendant
raped the plaintiff." Ibid. As here, the child plaintiff did
not testify and, in fact, this court ruled that, notwithstanding
the fact that the judge in that case erroneously had excluded
the plaintiff's mother's report of what the child had told her,
the admitted evidence was sufficient. Ibid.
We also have in mind that, in this civil case, neither boy
testified at the hearing. While "a defendant's failure to
testify cannot be used to justify the issuance of an abuse
prevention order until a case is presented on other evidence,"
Frizado, 420 Mass. at 596, "[a]n inference adverse to a
defendant may properly be drawn . . . from his or her failure to
testify in a civil matter such as this, even if criminal
proceedings are pending or might be brought against the
defendant. See McGinnis v. Aetna Life & Casualty Co., 398 Mass.
37, 39 (1986); Commonwealth v. United Food Corp., [374 Mass.
765], 771-772 [1978]. The fact that the defendant may refuse to
testify on the ground of self-incrimination does not bar the
taking of an adverse inference." Frizado, supra. See S.T. v.
E.M., 80 Mass. App. Ct. 423, 429 (2011). For these reasons, we 19
conclude that there was sufficient evidence to support the
extension of the ex parte order.
b. Cross-examination. M.T. also argues that the judge
abused his discretion when he limited cross-examination of the
mother. While it is true that a defendant has a "general right"
to cross-examine witnesses against him, a judge may "limit
cross-examination for good cause in an exercise of discretion."
Frizado, supra at 597. Furthermore, a judge "should not permit
the use of cross examination for harassment or discovery
purposes [although] each side must be given meaningful
opportunity to challenge the other's evidence." Id. at 598 n.5,
citing Draft Standards of Judicial Practice, Abuse Prevention
Proceedings (Dec., 1994) (eventually adopted, with amendments,
as the guidelines).
Here, the judge allowed cross-examination, and was within
his discretion to end it. Contrast C.O. v. M.M., 442 Mass. 648,
658 (2004), where "the issue whether to limit cross-examination
was never reached by the judge because he allowed no cross-
examination at all." The boys' attorneys collectively elicited
testimony from the mother regarding A.P.'s clothing habits and
playing style, and they explored possible alternative
explanations for why A.P. came in the house wearing only her
underwear and covered in mud. When the judge cut off M.T.'s
attorney's cross-examination, the judge said, sua sponte, "I'll 20
note your objection because this is a very limited hearing."
When M.T.'s counsel asked to be heard further, the judge agreed,
and counsel argued only that "there is no case law anywhere to
suggest that these are limited hearings and that the Defense
isn't entitled to a full cross-examination. There is no case
law anywhere that suggest[s] the rules of evidence don't apply
to this proceeding."12 There was no offer of proof as to what
any further cross-examination would have entailed.
Counsel for the other boy was then permitted to cross-
examine the witness and, apparently, was permitted to ask as
many questions as he liked.13 In addition, neither attorney
offered any other evidence after the other boy's attorney
finished his cross-examination of the mother. Looking at the
record as a whole, it is clear that both boys' attorneys were
given a meaningful opportunity to cross-examine the mother and
to challenge the evidence. See F.A.P., 87 Mass. App. Ct. at
600-601.
12 Counsel acknowledged that the Massachusetts Guide to Evidence noted that "the rules of evidence don't apply to 209A hearings," but added, "This is not a 209A hearing. . . . The rules of evidence apply to all hearings in Massachusetts except for those that are specifically exempted under the Mass. Guide to Evidence, and this is not one of those." Counsel was mistaken. 13 That cross-examination occupied approximately one page of transcript. While the judge may have interrupted when he said, "Okay. Thank you," counsel did not object and, like M.T.'s counsel, made no offer of proof about what else he would have asked. 21
c. In-court identification. Finally, M.T. argues that the
in-court identification was unreliable and unnecessarily
suggestive and should not have been admitted absent "good
reason," as required by Commonwealth v. Crayton, 470 Mass. 228,
241 (2014). In Crayton, the court said, "Where an eyewitness
has not participated before trial in an identification
procedure, we shall treat the in-court identification as an in-
court showup, and shall admit it in evidence only where there is
'good reason' for its admission." Ibid. However, Crayton was a
criminal case, and the court there expressly refused to decide
whether Crayton would apply to civil cases. See id. at 241
n.16.
Furthermore, in Crayton, the court explained that one good
reason to permit an in-court identification, with no prior
identification procedure, would be "where the eyewitness was
familiar with the defendant before the commission of the crime,
such as where a victim testifies to a crime of domestic
violence." Id. at 242. Here, the mother testified that she
knew both boys because they had visited her home in the past and
had played with her daughter and with the third boy in her home.
Indeed, one of the boys lived next door to her. She recognized
them both as they climbed over the fence and came into her house
when A.P. opened the door. She permitted her daughter to go
outside to join them in her yard, and she saw them running away. 22
As a result, there was good reason to permit the in-court
identification of both boys.
Harassment prevention order affirmed. KAFKER, C.J. (concurring). I concur in the result in this
very difficult harassment prevention order case because I
believe that there is sufficient evidence, albeit barely, for a
Juvenile Court judge to find by a preponderance of the evidence
that M.T. committed an indecent assault and battery as a joint
venturer. I write separately, however, to stress the importance
of M.T.'s very young age -- he was apparently only eight years
old at the time of the incident -- and how that age complicates
the analysis and distinguishes this case from those on which the
majority relies that involve adults. I am also troubled by how
little evidence we have of what occurred here. We have no
testimony about what the three children were doing when they
went outside to play, how or by whom A.P.'s clothes were
removed, what M.T. himself did, or the age of the other boy.
Nevertheless, I conclude that the combination of the removal of
A.P.'s clothes; her distress following the incident; the
obviously rough physical treatment of her by the boys while they
were playing outside, as demonstrated by the photographs of her;
the father's statements about the bruises and abrasions on
A.P.'s body;1 and the boys' running away together and looking
back at the mother is sufficient to support the order and the
extension.
1 The father stated in his affidavit accompanying the application for the G. L. c. 258E order that a hospital found "several bruises and abrasions on [A.P.'s] body." 2
Indecent assault and battery on a child, G. L. c. 265,
§ 13B, requires proof of an "indecent" touching. Commonwealth
v. Rosa, 62 Mass. App. Ct. 622, 624 (2004). "A touching is
indecent when, judged by the normative standard of societal
mores, it is violative of social and behavioral expectations, in
a manner which [is] fundamentally offensive to contemporary
moral values . . . [and] which the common sense of society would
regard as immodest, immoral and improper." Id. at 625
(quotation omitted). "When evaluating evidence of alleged
indecent behavior, we consider all of the circumstances"
(emphasis supplied). Id. at 626 (citation omitted). This
includes the ages of the participants, any "age disparity"
between them, "difference[s] in [their] experience and
sophistication," and any "authority disparity" between them.
Ibid. See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 567
(2002).
We therefore must consider M.T.'s very young age in
determining whether his alleged acts are indecent, or
"fundamentally offensive to contemporary moral values." Rosa,
62 Mass. App. Ct. at 625 (citation omitted). Most of the cases
relied upon by the majority in concluding that M.T. committed an
indecent assault and battery involve adults.2 Adult cases (with
2 The majority also relies on F.A.P. v. J.E.S., 87 Mass. App. Ct. 595 (2015), which I address in note 5, infra. 3
child victims) are different, as they involve an age and an
authority disparity and differences of experience and
sophistication that are not present here.3 See, e.g., Castillo,
55 Mass. App. Ct. at 567 (noting "considerable age disparity,"
"obvious disparity in experience and sophistication," and
"authority disparity" in concluding that thirty year old man
committed indecent act by forcing his tongue into fourteen year
old girl's mouth; defendant was stepfather of victim's friend);
Rosa, supra at 626 (noting "age disparity" and "difference in
experience and sophistication" in concluding that man committed
indecent act by putting finger in eleven year old girl's mouth);
Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307, 309 (2005)
(man in his thirties committed indecent act by kissing twelve
year old niece due to "the age difference . . . and [the
defendant's] position of familial authority over her"; "an
unwanted kiss on the mouth has been held to constitute indecent
conduct . . . when coupled with surreptitiousness and a
considerable disparity in age and authority between the
perpetrator and the victim" [emphasis supplied]); Commonwealth
v. Miozza, 67 Mass. App. Ct. 567, 572 (2006) (noting ages, age
3 I recognize that there is an age disparity between an eight year old child and a four year old child. However, this is not the "considerable" disparity of experience and sophistication, particularly regarding sexual matters, Castillo, 55 Mass. App. Ct. at 567; Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307 (2005), that is emphasized in the indecency cases. 4
disparity and "position of authority" in concluding that thirty
year old "close family friend" committed indecent act by kissing
girls younger than age eleven; "the defendant's behavior
violated clearly delineated and accepted societal expectations
governing relationships between adults and children, and was
therefore 'indecent'" [emphasis supplied]).
This court has also held that § 13B is not
unconstitutionally vague "[b]ecause a person of average
intelligence can be expected to be able to identify [indecent]
conduct," Miozza, 67 Mass. App. Ct. at 571, an assumption that
must be considered in proper context when dealing with very
young children. See Commonwealth v. Lavigne, 42 Mass. App. Ct.
313, 315 (1997) ("the term 'indecent' affords a 'reasonable
opportunity for a person of ordinary intelligence to know what
is prohibited'" [citation omitted]).
If M.T. were an adult, or even an older teenager, I would
have no trouble concluding that the actions alleged in this case
are indecent, understood as such by the perpetrator, and
recognized by society at large. When the defendant is an eight
year old child, however, and the crime is indecent assault and
battery on another child, the inquiry is much more complicated.
I understand that a child of this age should know that treating
another child roughly and removing her clothing is inappropriate
and should result in severe parental discipline and other types 5
of corrective action, including counselling. But what an eight
year old child can reasonably be expected to understand beyond
that on these facts, and whether our society would consider such
behavior by a young child to be "fundamentally offensive to
contemporary moral values," is a very different question. Rosa,
62 Mass. App. Ct. at 626, quoting from Castillo, supra at 566.
It seems to me that a young child would have difficulty
recognizing that these actions -- particularly if the children
were only "roughhousing" -- are indecent or immoral, and that
society would acknowledge that difficulty. See Adoption of
Olivette, 79 Mass. App. Ct. 141, 150 (2011) (eight year old
exhibited "age-inappropriate awareness of sexual matters").
While very young children may be expected to recognize more
obvious harms and risks, such as those associated with fire,
their ability to understand inappropriate sexual contact cannot
be so assumed.4 Compare Commonwealth v. Ogden O., 448 Mass. 798,
4 The case law also provides very little guidance on how to review the criminality of such behavior by a very young child. For older adolescents, we have simply recognized their differences from adults and taken them into account, at least for sentencing purposes. See generally Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 660 (2013), S.C., 471 Mass. 12 (2015). See also Commonwealth v. Mogelinski, 466 Mass. 627, 647 (2013) ("Adolescents are socially, emotionally, and cognitively different from adults" [citation omitted]). Other States and commentators have gone further. See generally In re T.S., 133 N.C. App. 272, 276-277 (1999) (reversing adjudication of delinquency of nine year old boy for lewd act on three year old boy; "[A] lewd act by adult standards may be innocent between children . . . . Adults can and should be 6
802 (2007) ("Nothing in the record suggests that the [ten year
old] juvenile had any developmental handicaps or other
disabilities that might have impaired his ability to perceive
the common and severe risks associated with fire").
The majority explains that, because the Legislature
"deliberately entrusted to the trial court department most
experienced with juveniles exclusive authority to issue
harassment orders against them, it had young people's
limitations and abilities particularly in mind," quoting from
A.T. v. C.R., 88 Mass. App. Ct. 532, 539 (2015). Ante at .
I agree and recognize the expertise of the Juvenile Court
Department in this area. However, we unfortunately have limited
analysis here by the Juvenile Court judge, and the majority
relies for the most part on cases involving adults, particularly
to support the conclusion that the removal of A.P.'s clothes
constitutes an indecent assault and battery and that M.T.'s
flight confirms that he acted as a joint venturer in a sex
crime.
presumed to know the nature and consequences of their acts; this is not always the case with children"); Northrop & Rozan, Kids Will Be Kids: Time for a "Reasonable Child" Standard for the Proof of Objective Mens Rea Elements, 69 Me. L. Rev. 109, 112, 118 (2017) ("the juvenile code should be amended to explicitly refer to a reasonable child standard"; "[b]rain research tells us that a juvenile's deviation from an adult reasonable standard of behavior is not the indicator of a 'criminal mind' in the same way that it might be for an adult"). 7
I also agree with the majority that "a defense of
incapacity based on youth" is "inapplicable to current juvenile
proceedings," quoting from Ogden O., 448 Mass. at 803. Ante
at . This does not mean, however, that M.T.'s youth is not
significant. I believe that M.T.'s young age should be more
expressly taken into account, as age, including the difference
between an eight year old child and a seventeen year old
juvenile, is a relevant and important factor when determining
whether conduct is indecent in this context.5 Compare Miozza, 67
Mass. App. Ct. at 572.
5 I also note that in the two most relevant juvenile cases, the evidence that a sex crime had occurred was significantly stronger than it is here. The majority relies in part on F.A.P., 87 Mass. App. Ct. at 595. Ante at . However, F.A.P. involved only one eleven year old boy, who had previously engaged in inappropriate touching with the seven year old victim. Id. at 596-597. Thus, it was reasonable to conclude that the boy committed a sex crime on the girl when, immediately after being alone with him, she was bleeding from her vaginal area, told her mother that he had "shoved his fingers up there," and told her not to tell anyone. Id. at 597. Here, by contrast, we know very little about what happened and, while there was a history of rough play, there was no history of sexual misconduct.
We also have much less evidence here than in A.T., supra at 540, in which this court affirmed a harassment prevention order against an eleven year old boy who committed three acts of wilful and malicious conduct against an eleven year old girl. See G. L. c. 258E, § 1. The boy stated in a video chat with the girl that he sometimes stares at her "big jugs of milk" during class. A.T., supra at 533. The boy later told the girl that he would "make her life a living hell" if she showed the video chat to anyone. Ibid. The boy also described a sexual fantasy about her to several classmates and, after their parents became involved, told the girl that he wanted to "punch [her] in the 8
The joint venture rationale is also complicated by M.T.'s
very young age. Joint venture requires proof that the defendant
"shared the intent to commit the crime." Commonwealth v.
Montalvo, 76 Mass. App. Ct. 319, 330 (2010). See A.T., 88 Mass.
App. Ct. at 538 ("The defendant's age, eleven, certainly is a
factor in determining his intent"). In discerning such intent,
we draw inferences from a defendant's collective actions,
including flight evidencing consciousness of guilt.
Nevertheless, the joint venture inferences that can be drawn
from the actions of an adult or even a teenager differ from
those that can be drawn from the actions of an eight year old
child. See State v. Rice, 110 Ariz. 210, 212 (1973) (expressing
"some doubts as to the capability of children of such tender
ages as nine, ten or eleven to be accomplices"). Although the
majority "acknowledge[s] that flight from the scene by young
children may call for a different analysis from that of flight
by adults," ante at , the majority relies exclusively on
cases involving adults in concluding that M.T. could be deemed a
joint venturer.
I recognize that, in the instant case, there is some
evidence to support the joint venture theory. The boys went to
the house together, had engaged in rough play with A.P. on prior
titties." Id. at 534. Both children testified at the hearing about these events. Id. at 540. 9
occasions, and were seen running away together. The mother
"felt funny" about the way the boys turned and looked back at
her as they ran away. Although we do not know how or by whom
A.P.'s clothes were removed, M.T. was present and stayed with
the other boy throughout the incident. Collectively, these are
relevant factors, and they were appropriately considered by the
Juvenile Court judge. However, these factors must be considered
in the context of M.T.'s age, as with our indecency analysis.
See A.T., 88 Mass. App. Ct. at 538. Very different inferences
can be drawn from a young boy running away when he knows he is
going to be in trouble with his neighbor's mother than from an
adult fleeing the scene of a crime. See Commonwealth v. Ward
W., 47 Mass. App. Ct. 208, 212 (1999) (fourteen year old fled,
looking back at police cruiser many times; "[d]espite evidence
of the juvenile's consciousness of guilt . . . and his
association with people who may have committed armed robbery and
carjacking . . . , the inference that the juvenile participated
in the crime . . . is unwarranted"). The case law recognizes
that even much older juveniles "lack the ability to extricate
themselves from horrific, crime-producing situations."
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 660 (2013), S.C., 471 Mass. 12 (2015), quoting from Miller 10
v. Alabama, 567 U.S. 460, 471 (2012). The entire incident here
also happened quickly, leaving little time for reflection.6
In sum, this is a very close case. M.T.'s young age
significantly affects our analysis whether his actions were
indecent and whether he acted as joint venturer. We also have
limited guidance in the case law regarding such young offenders.
Finally, we have large gaps in the evidence, specifically
regarding what M.T. himself did. I nonetheless recognize that
when all the evidence is considered, including the mud and the
abrasions on A.P., the removal of her clothes, her distress, and
the boys' flight, "together with all permissible inferences,"
A.T., 88 Mass. App. Ct. at 535, there is sufficient evidence for
6 I also interpret the mud on A.P.'s clothes and body differently from the majority. The majority describe the mud as being on the "crotch of her underpants and smeared over her bare feet and legs" and state that the boys "put her . . . on to the muddy ground." Ante at . This depiction is, in my view, more forceful and sexual than I believe the photographs in and of themselves prove. The mud appears to be on A.P.'s bottom, which could have resulted from her sitting or playing in the mud, going down the backyard slide, or playing on the jungle gym, as she liked to do. Her mother testified that she enjoyed roughly playing with M.T. in the past, and that such rough play easily could have resulted in the mud on her clothes and body. A.P. was wearing a dress, and the mother also testified that she sometimes falls down and comes in muddy from playing outside. The judge did not make any specific findings with respect to the significance of the mud in the photographs; he merely stated that the photographs are "compelling." What conclusions they compel, however, is not clear to me given the very young age of the participants and their history of rough outdoor play. See Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002) (fact finder in "no better position to evaluate the content and significance" of photographs). 11
a Juvenile Court judge to find by a preponderance of the
evidence that M.T. committed an indecent assault and battery as
a joint venturer. The removal of A.P.'s clothes, in particular,
indicates that something different from ordinary roughhousing
occurred here. I therefore agree that the harassment prevention
order was properly issued and extended in this unique case.