COMMONWEALTH v. SANTOS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of annoying and accosting another in violation of G. L. c. 272, § 53. On appeal, he claims that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We affirm.

Background. The jury could have found the following facts. On March 7, 2015, the defendant boarded the Massachusetts Bay Transportation Authority (MBTA) train at the Coolidge Corner stop. He approached the female victim, a passenger on the train, and fell into her as he sat down next to her. He “started ․ getting physical” by moving closer to the victim, touching her leg, and attempting to touch her shoulder and face. The defendant, who smelled of alcohol, said to the victim, “Mamacita, dame un beso, beso,” which the victim understood to mean, “Mama, give me a kiss.”² She ignored him and looked away, but the defendant continued to touch her. When the defendant persisted, the victim left her seat, went to the front of the train, and informed the conductor that she was uncomfortable because someone on the train was bothering her.

When the train stopped and the victim got off the train in Kenmore Square station, an MBTA inspector secured her in a locked MBTA booth and contacted the police. The defendant was removed from the train and continued to pursue the victim, circling the booth and gesturing in her direction. The victim was crying and “distraught.”

The defendant's theory of defense at trial was that he was too drunk to form the intent to accost and to annoy the victim. Based on the defendant's request, the judge instructed the jury that they could “consider any evidence of intoxication with liquor along with all the other evidence in the case in deciding whether the Commonwealth has proved beyond a reasonable doubt that the Defendant acted with the intent to direct an offensive and disorderly act or offensive and disorderly language to [the victim].” The jury rejected the defendant's argument and found him guilty.

Discussion. We review the denial of a motion for a required finding of not guilty to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To sustain a conviction of annoying and accosting another, the Commonwealth must prove (1) that the defendant knowingly engaged in offensive and disorderly acts, (2) that he intended to direct his conduct to the victim, (3) that the victim was aware of the defendant's conduct, and (4) that the conduct would be offensive and disorderly to a reasonable person. See Instruction 6.600 of the Criminal Model Jury Instructions for Use in the District Court (2009). On appeal, the defendant challenges only the sufficiency of the evidence supporting the second element, his intent to direct his conduct to the victim. He claims that “his debilitating state of intoxication deprived him of any ability to form [the] required intent [to accost and annoy].”

There was ample evidence that the defendant created a physically offensive condition by persistently touching the victim against her will and asking for a kiss. See Commonwealth v. Cahill, 446 Mass. 778, 782 (2006) (unwanted grabbing coupled with words “I love you” created physically offensive condition sufficient for conviction under G. L. c. 272, § 53). While there was evidence that the defendant smelled of alcohol, slurred his speech, and was unsteady on his feet, the jury also heard that the defendant got on and off the train without assistance, pursued the victim after she disembarked, was able to respond to questions from the MBTA police, and could produce identification when it was requested. “That evidence [of intoxication] is conflicting does not demand a required finding of not guilty.” Commonwealth v. Merry, 453 Mass. 653, 661 (2009). The jury were entitled to weigh that evidence and to apply the judge's instructions. We are confident that all of the evidence, taken together and viewed in the light most favorable to the Commonwealth, would permit a rational jury to conclude beyond a reasonable doubt that the defendant had the required intent to direct his conduct at the victim.

Judgment affirmed.

FOOTNOTES

2.   The victim studied Spanish at the honors level from seventh to twelfth grade.