COMMONWEALTH v. AARON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Juvenile Court jury found the juvenile delinquent based on two offenses: open and gross lewdness, and indecent assault and battery. The charges stemmed from an incident during which the juvenile, then fifteen, was sitting in the front passenger seat of a car. He proceeded to masturbate in full view of the car's driver and then sexually assaulted her. On the defendant's appeal, we affirm.

1. The juvenile's principal argument on appeal is that, as a matter of law, a fifteen year old cannot be prosecuted for open and gross lewdness pursuant to G. L. c. 272, § 16. The language of that statute states:

“A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.”

According to the juvenile, because the statute applies to “any man or woman,” it was not intended to apply to a fifteen year old.

As an initial matter, we note that it is far from clear that the juvenile's textual argument even matters. That is because, strictly speaking, the statutory language just quoted does not make open and gross behavior a crime; rather, it specifies what criminal sanctions a “man or woman” will face if they undertake such behavior, which is prohibited by common law. Because the juvenile is not facing any criminal sanctions in the current delinquency proceeding, whether he should be considered a “man” would appear to be beside the point.

In any event, the juvenile's argument fails on its own terms. The language of the statute dates to 1784. See St. 1784, c. 40, § 3. We are unpersuaded by the juvenile's claims that at the time of enactment the Legislature could not have intended a fifteen year old male to be considered a “man” for these purposes. By way of providing perspective, it bears noting that at the time, the age of consent for sexual intercourse was ten years old, and under the common law, children fourteen and older were presumed to be criminally responsible and children as young as seven years old could be executed for capital offenses. Commonwealth v. Roosnell, 143 Mass. 32, 36-38 (1886) (describing history of statutory rape and noting “in Massachusetts the offence of unlawfully and carnally knowing and abusing a female child under the age of ten years is, and for more than 200 years has been, known and designated as ‘rape’ ”). See Thompson v. Oklahoma, 487 U.S. 815, 864 (1988) (“According to Blackstone, not only was 15 above the age [viz., 7] at which capital punishment could theoretically be imposed; it was even above the age [14] up to which there was a rebuttable presumption of incapacity to commit a capital [or any other] felony”). Moreover, as the Commonwealth has pointed out, the terms “man” and “woman” were once used as synonyms for “male” and “female.” See, e.g., Province Laws 1692-1693, c. 19, § 12 (criminal law referring to “woman child, under the age of ten years”).

Nor has the juvenile put forward any persuasive argument about statutory intent based on legislative action or inaction since the open and gross statute originally was enacted. To the contrary, perusing related statutes unmistakably confirms that modern Legislatures understood that juveniles are subject to prosecution for engaging in open and gross conduct. For example, in the statute requiring the registration of sex offenders, the Legislature has defined “sex offense” to include a “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior under section 16 of said chapter 272, but excluding a first or single adjudication as a delinquent juvenile before August 1, 1992.” G. L. c. 6, § 178C.

Last, but hardly least, the juvenile has supplied no coherent reason why the Legislature would want to exempt fifteen year olds from prosecution for open and gross conduct. Courts are not required to adopt interpretations that are absurd or “plainly inconsistent with [the statute's] central purpose, notwithstanding the susceptibility of the statute's plain language to such a construction.” Reade v. Secretary of the Commonwealth, 472 Mass. 573, 584 (2015).

2. The juvenile separately claims that there was insufficient proof that the juvenile “openly” committed a lewd and lascivious act. This requires little discussion. To be sure, the juvenile is correct that the Commonwealth was required to prove that he either “intended public exposure or recklessly disregarded a substantial risk of public exposure to others who might be offended by such conduct.” Commonwealth v. Ora, 451 Mass. 125, 127 (2008). However, the juvenile's premise that the driver of the car does not qualify as a member of the public is simply wrong. See Commonwealth v. Quinn, 439 Mass. 492, 496 n.9 (2003) (“To be ‘open,’ under G. L. c. 272, § 16, the conduct need not occur in a public place, but must occur in the presence of another person who can be alarmed or shocked”).

3. One of the juvenile's principal defenses was lack of criminal responsibility. In asserting that defense, he faced a significant hurdle posed by the victim's testimony that he had told her that he would stop sexually assaulting her if she promised not to tell anyone. An expert testified in support of the juvenile's lack of criminal responsibility defense, opining both as to the development of the adolescent brain in general and as to the juvenile's mental development in particular. This expert (the first expert) was unable to state an opinion -- to a medical certainty -- that the juvenile could not appreciate right from wrong.

The juvenile claims reversible error in the judge's precluding him from calling a second expert. That expert (second expert) had never met the juvenile and was put forward to testify about trauma, posttraumatic stress disorder, and the development of the adolescent brain only in general terms. The question we face is whether the judge abused his discretion in excluding the second expert. See Commonwealth v. Carter, 481 Mass. 352, 371 (2019). We conclude that the judge did not do so. For one thing, the juvenile was tardy in proposing the second expert.² For another, where the second expert's testimony largely would cover a topic area already covered by the first expert, and the second expert had never met the juvenile, the judge was justified in concluding that the second expert's testimony would not materially aid the jury. See id. (no abuse of discretion in judge's excluding testimony of expert on development of adolescent human brain who had never examined defendant).

Finally, even if we assumed, arguendo, that the judge should have allowed the second expert to testify, the juvenile has shown insufficient prejudice to warrant reversal. As noted, the second expert's testimony would have been cumulative of the first's, and in any event, any claims that the juvenile could not appreciate the wrongfulness of his conduct was belied by his statement to the victim. We are confident that the jury's verdict did not turn on the judge's refusal to let the juvenile call the second expert.

4. We agree with the Commonwealth that the judge did not err in declining to give the juvenile-specific jury instructions that the defendant had requested. The phrasing of the requested instructions improperly would have suggested to the jury that they were required to find the juvenile nondelinquent as a matter of law. See Commonwealth v. Brown, 474 Mass. 576, 589-591 (2016). Nor are we persuaded by the juvenile's argument that the judge's instructing that the same rules applied to criminal and juvenile proceedings would have been understood by the jury as barring them from considering the juvenile's age when they evaluated his lack of criminal responsibility defense. The judge explicitly instructed the jury to “carefully weigh any specific evidence of criminal responsibility or lack of criminal responsibility that has been presented in this case [and] consider not only the opinions of psychiatrists who testified but also other evidence.” See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015) (jury instructions are to be reviewed in context and as whole).

5. The juvenile raises three additional claims of error regarding the judge's instructions to the jury. We take each in turn.

The twenty-three year old victim here had been hired to chauffeur students at a specialized school for emotionally disturbed students, including those with a history of sexually acting out. She had received some training on how to deal with such students. The judge expressly instructed the jury that they were to consider the charges at issue in context. For example, he instructed them that “[w]hether [the victim's] shock or alarm is reasonable depends upon the context and the circumstances of the incident.” The juvenile nonetheless argues that the judge erred in not going further; specifically, he argues that the judge should have instructed that “[s]taff trained to carry out the mission of certain facilities should not reasonably take offense when individuals do not conform to the expected norms of society at large.” There was no error in the judge's failure to give such an instruction, which again improperly would have suggested to the jury that they were required to find the juvenile nondelinquent as a matter of law. Brown, 474 Mass. at 589-591.

The judge's instructions, taken as a whole, properly conveyed what the Commonwealth had to prove with regard to intent, and any errors regarding individual statements the judge made inured to the juvenile's benefit. Moreover, although the juvenile argued lack of criminal responsibility, he never claimed that he did not intend to take the actions for which he was charged.

Finally, although the Commonwealth acknowledges that the judge erred by instructing the jury on the so-called “presumption of sanity,”³ the juvenile raised no objection, and we agree with the Commonwealth that the error did not cause a substantial risk of a miscarriage of justice. See Commonwealth v. Muller, 477 Mass. 415, 431 (2017).

Adjudications of delinquency affirmed.

FOOTNOTES

2.   The fact that the Commonwealth represented to the judge that it did not “lean on” the juvenile's tardiness as grounds for excluding the expert did not preclude the judge from relying on it.

3.   The Supreme Judicial Court ruled in Commonwealth v. Lawson, 475 Mass. 806, 815 n.8 (2016), a case published shortly before the juvenile's trial, that such an instruction no longer should be given.