NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1034
COMMONWEALTH
vs.
MARK L. GAGLINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a conviction of indecent assault
and battery on a person fourteen or over pursuant to G. L.
c. 265, § 13H. He argues that the Superior Court judge erred by
(1) denying his motion for a required finding of not guilty, and
(2) declining to provide a curative jury instruction. We
affirm.
Background. 1 On August 2, 2019, the victim, a sixteen year
old male, took a driving lesson with the defendant as his
instructor. At the start of the lesson, the defendant got out
of his vehicle, greeted the victim, and said something to the
effect of, "I don't want us to get too crazy now." The
1We recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676- 677 (1979). defendant's tone made the victim uncomfortable. Before starting
to drive, the defendant told the victim that rather than use the
passenger brake pedal, he would either grab the victim's arm or
touch his leg to correct any driving mistakes. During the
lesson, the defendant touched the victim over twenty times, near
his groin area, lasting anywhere from a short tap to ten seconds
long. The victim stood and showed the jury where the defendant
touched him and testified that if his penis was on that side,
the defendant would have touched it. When the victim stated
that he did not want to ride longer, the defendant tried to hug
him. Once they arrived near the victim's home, the defendant
got out of the vehicle with the victim, who again expressed that
he did not want to be hugged. The defendant hugged him anyway.
The victim left the area immediately thereafter and called his
mother, upset and crying, to report that the defendant had
touched him on his leg and groin area.
Discussion. 1. Motion for a required finding. The
defendant alleges that the trial judge erred by denying the
defendant's motion for a required finding of not guilty because
the Commonwealth failed to provide sufficient evidence to
support his conviction for indecent assault and battery on a
person fourteen or over. We disagree.
When reviewing the denial of a motion for a required
finding of not guilty, "we consider the evidence introduced at
2 trial in the light most favorable to the Commonwealth, and
determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "That
evidence would encompass all the circumstances surrounding the
touching and include the reasonable inferences that could be
drawn therefrom." Commonwealth v. Shore, 65 Mass. App. Ct. 430,
432 (2006).
To prove a conviction of indecent assault and battery on a
person fourteen or over, the Commonwealth must establish that
"'the defendant committed an intentional, unprivileged, and
indecent touching of the victim' without the victim's consent."
Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020),
quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018).
"Indecent assault and battery [on a person fourteen or over] is
a general intent crime." Id. Thus, the Commonwealth bears the
burden of proving the absence of consent, but not that the
defendant intended the act to be without consent. Commonwealth
v. Moran, 439 Mass. 482, 490 (2003).
"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
3 improper.'" Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625
(2004), quoting Commonwealth v. Lavigne, 42 Mass. App. Ct. 313,
314-315 (1997). An "intentional, unjustified touching" of
private areas such as the buttocks, thighs, and pubic area
constitutes an indecent touching. Commonwealth v. Mosby, 30
Mass. App. Ct. 181, 184-185 (1991).
Here, a rational juror could infer from the evidence
presented that the defendant intentionally committed an indecent
act without consent from the victim. The victim testified that
the defendant told him the defendant would touch the victim on
the leg or arm in order to correct his driving mistakes. The
defendant touched the victim on the leg and groin area over
twenty times during a forty-five minute lesson and for longer
than necessary to correct a driving mistake. While the victim
did not manifestly object to the defendant's touching, "we do
not require an explicit verbal or physical rebuff to prove lack
of consent." Shore, 65 Mass. App. Ct. at 433. The victim
further testified that the defendant, a driving instructor he
had just met that day, hugged him over his objection. The jury
were entitled to credit the testimony of the victim, which
supports the conviction. See Commonwealth v. Lao, 443 Mass.
770, 779 (2005) ("If, from the evidence, conflicting inferences
are possible, it is for the jury to determine where the truth
4 lies, for the weight and credibility of the evidence is wholly
within their province").
2. Curative jury instruction. The defendant further
argues that the trial judge erred by failing to provide a
curative instruction regarding the victim's "emotional
outburst." Specifically, the defendant takes issue with the
following portion of the prosecutor's line of questioning of the
victim:
Q: "Do you remember if you were crying at all [during telephone call to mother]?"
A: "(Inaudible.)"
Q: "Sorry, was that a 'yes'?"
A: "Yeah."
Q: "Were you crying?"
Q: "And I noticed you're shaking today; how do you feel today?"
A: "I'm cold."
Q: "And how else do you feel?"
Defense counsel: "Objection."
The judge: "Overruled."
A: "Embarrassed."
Q: "Why do you say that?"
The judge: "Sustained, sustained."
5 A: "Just let another . . . man touch me like that."
Q: "It's all right. If you want, there are some tissues right to your left."
The defendant claims that this exchange created a
substantial risk of a miscarriage of justice, where the jury
were not later instructed to disregard emotion in coming to a
verdict. Although the defendant objected to the victim's
testimony, he did not request a curative instruction, and thus,
"[o]ur review . . .
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1034
COMMONWEALTH
vs.
MARK L. GAGLINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a conviction of indecent assault
and battery on a person fourteen or over pursuant to G. L.
c. 265, § 13H. He argues that the Superior Court judge erred by
(1) denying his motion for a required finding of not guilty, and
(2) declining to provide a curative jury instruction. We
affirm.
Background. 1 On August 2, 2019, the victim, a sixteen year
old male, took a driving lesson with the defendant as his
instructor. At the start of the lesson, the defendant got out
of his vehicle, greeted the victim, and said something to the
effect of, "I don't want us to get too crazy now." The
1We recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676- 677 (1979). defendant's tone made the victim uncomfortable. Before starting
to drive, the defendant told the victim that rather than use the
passenger brake pedal, he would either grab the victim's arm or
touch his leg to correct any driving mistakes. During the
lesson, the defendant touched the victim over twenty times, near
his groin area, lasting anywhere from a short tap to ten seconds
long. The victim stood and showed the jury where the defendant
touched him and testified that if his penis was on that side,
the defendant would have touched it. When the victim stated
that he did not want to ride longer, the defendant tried to hug
him. Once they arrived near the victim's home, the defendant
got out of the vehicle with the victim, who again expressed that
he did not want to be hugged. The defendant hugged him anyway.
The victim left the area immediately thereafter and called his
mother, upset and crying, to report that the defendant had
touched him on his leg and groin area.
Discussion. 1. Motion for a required finding. The
defendant alleges that the trial judge erred by denying the
defendant's motion for a required finding of not guilty because
the Commonwealth failed to provide sufficient evidence to
support his conviction for indecent assault and battery on a
person fourteen or over. We disagree.
When reviewing the denial of a motion for a required
finding of not guilty, "we consider the evidence introduced at
2 trial in the light most favorable to the Commonwealth, and
determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "That
evidence would encompass all the circumstances surrounding the
touching and include the reasonable inferences that could be
drawn therefrom." Commonwealth v. Shore, 65 Mass. App. Ct. 430,
432 (2006).
To prove a conviction of indecent assault and battery on a
person fourteen or over, the Commonwealth must establish that
"'the defendant committed an intentional, unprivileged, and
indecent touching of the victim' without the victim's consent."
Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020),
quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018).
"Indecent assault and battery [on a person fourteen or over] is
a general intent crime." Id. Thus, the Commonwealth bears the
burden of proving the absence of consent, but not that the
defendant intended the act to be without consent. Commonwealth
v. Moran, 439 Mass. 482, 490 (2003).
"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
3 improper.'" Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625
(2004), quoting Commonwealth v. Lavigne, 42 Mass. App. Ct. 313,
314-315 (1997). An "intentional, unjustified touching" of
private areas such as the buttocks, thighs, and pubic area
constitutes an indecent touching. Commonwealth v. Mosby, 30
Mass. App. Ct. 181, 184-185 (1991).
Here, a rational juror could infer from the evidence
presented that the defendant intentionally committed an indecent
act without consent from the victim. The victim testified that
the defendant told him the defendant would touch the victim on
the leg or arm in order to correct his driving mistakes. The
defendant touched the victim on the leg and groin area over
twenty times during a forty-five minute lesson and for longer
than necessary to correct a driving mistake. While the victim
did not manifestly object to the defendant's touching, "we do
not require an explicit verbal or physical rebuff to prove lack
of consent." Shore, 65 Mass. App. Ct. at 433. The victim
further testified that the defendant, a driving instructor he
had just met that day, hugged him over his objection. The jury
were entitled to credit the testimony of the victim, which
supports the conviction. See Commonwealth v. Lao, 443 Mass.
770, 779 (2005) ("If, from the evidence, conflicting inferences
are possible, it is for the jury to determine where the truth
4 lies, for the weight and credibility of the evidence is wholly
within their province").
2. Curative jury instruction. The defendant further
argues that the trial judge erred by failing to provide a
curative instruction regarding the victim's "emotional
outburst." Specifically, the defendant takes issue with the
following portion of the prosecutor's line of questioning of the
victim:
Q: "Do you remember if you were crying at all [during telephone call to mother]?"
A: "(Inaudible.)"
Q: "Sorry, was that a 'yes'?"
A: "Yeah."
Q: "Were you crying?"
Q: "And I noticed you're shaking today; how do you feel today?"
A: "I'm cold."
Q: "And how else do you feel?"
Defense counsel: "Objection."
The judge: "Overruled."
A: "Embarrassed."
Q: "Why do you say that?"
The judge: "Sustained, sustained."
5 A: "Just let another . . . man touch me like that."
Q: "It's all right. If you want, there are some tissues right to your left."
The defendant claims that this exchange created a
substantial risk of a miscarriage of justice, where the jury
were not later instructed to disregard emotion in coming to a
verdict. Although the defendant objected to the victim's
testimony, he did not request a curative instruction, and thus,
"[o]ur review . . . is limited to determining whether the
judge's omission created an error and, if so, whether there was
a substantial risk of a miscarriage of justice." Commonwealth
v. Simmarano, 50 Mass. App. Ct. 312, 315 (2000).
Emotional outbursts are not uncommon in criminal trials,
and we give substantial deference to the judge's effort to
adequately remedy the potential prejudice. See, e.g.,
Commonwealth v. Martinez, 437 Mass. 84, 89-90 (2002) (trial
judge's decision to issue curative instruction rather than grant
mistrial not abuse of discretion); Commonwealth v. Hardy, 431
Mass. 387, 392 (2000) (trial judge was in best position to
evaluate all circumstances and actual prejudicial effect;
accordingly, ruling was entitled to substantial deference).
While curative instructions are "an adequate means to correct
any error . . . to the defendant," Commonwealth v. Amirault, 404
Mass. 221, 232 (1989), deference is given to the judge's
6 decision even in the absence of curative instructions. See,
e.g., Commonwealth v. Morales, 440 Mass. 536, 548 (2003) (no
error where judge denied motion for mistrial and did not issue
curative instruction after noting that jury were not affected by
emotional outburst). Indeed, generally, trial judges are not
required to give curative instructions sua sponte. See
Commonwealth v. Qualls, 440 Mass. 576, 584 (2003).
Additionally, any potential prejudice to the defendant from
the victim's display of emotion (and from the prosecutor's
related appeal to the jury's emotion during his closing) was
remedied when the judge told the jurors that they "must be
completely fair and impartial . . .[,] not swayed by prejudice,
[or] by sympathy" and that they had to decide "whether to
believe a witness and how much importance to give a witness's
testimony" by considering the evidence as a whole. Indeed, the
judge gave a robust and detailed instruction to the jury on how
7 to appropriately weigh the testimony before them. This
instruction was sufficient to cure any error.
Judgment affirmed.
By the Court (Neyman, Henry & Ditkoff, JJ. 2),
Assistant Clerk
Entered: April 22, 2024.
2 The panelists are listed in order of seniority.