COMMONWEALTH v. HYLAND (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of rape of a child with force, G. L. c. 265, § 22A; intimidation of a witness, G. L. c. 268, § 13B; and open and gross lewdness, G. L. c. 272, § 16. On appeal, he claims that the Commonwealth's evidence was insufficient to support a conviction of open and gross lewdness. He also claims that he is entitled to a new trial due to various alleged errors in the prosecutor's closing argument. We vacate the judgment on the charge of open and gross lewdness because there was insufficient evidence that the defendant's conduct caused the victim to experience “shock” or “alarm,” as the statute requires, and a new judgment shall enter on the lesser included offense of indecent exposure. The judgments on the charges of rape of a child with force and intimidation of a witness are affirmed.

Background. We summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The victim, whom we shall call Sally, was five years old at the time the offenses were committed and twelve years old at the time of trial. In the late summer or early fall of 2011, Sally visited her grandparents at their summer home. One afternoon, she was outside with her father, an uncle, and some neighbors, when the defendant, who was a family friend, stopped by. The defendant was watching a neighbor's dog and had brought the dog along with him. As the men chatted, Sally played with the dog. When it was time to return the dog to its owner, Sally accompanied the defendant. The two soon arrived at the owner's house, and, after leaving the dog inside, the defendant walked with Sally along a dirt road where he assaulted her. The defendant pulled down Sally's jeans and underwear and put his mouth on her vagina and his tongue inside. Sally did not say or do anything. The defendant then pulled his pants down and exposed his penis to Sally. He asked if she wanted to touch it, and she shook her head, indicating “no.” Sally then walked away. The defendant followed her and told her not to tell anyone about the incident, and she agreed not to. The two returned to Sally's grandparents' house, where her father and uncle still were in the yard. Sally did not disclose the incident for approximately five years. On August, 25, 2016, she wrote her mother a note regarding the incident.

Discussion. 1. Sufficiency of the evidence on the charge of open and gross lewdness. The Commonwealth was required to prove the following five elements to convict the defendant of open and gross lewdness:

“that the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons.”

Commonwealth v. Maguire, 476 Mass. 156, 158 (2017), quoting Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008). The defendant argues that the Commonwealth failed to prove that one or more persons were in fact “alarmed or shocked” by the defendant's behavior, the fifth element of the crime. We agree. There was insufficient evidence that Sally herself was “in fact” subjectively alarmed or shocked by the defendant's conduct. Commonwealth v. Botev, 79 Mass. App. Ct. 281, 287, 288 (2011) (“The impact requirement has remained unchanged since 1880”). Sally testified only that she was “confused” and felt uncomfortable when the defendant exposed his penis to her. While we do not doubt that the incident upset Sally, the testimony adduced at trial was not sufficient to prove that she was shocked or alarmed. Compare Commonwealth v. Kessler, 442 Mass. 770, 772-775 (2004) (evidence insufficient where boys reacted to viewing masturbation with nervous giggling and continued to watch); Commonwealth v. Militello, 66 Mass. App. Ct. 325, 333-334 (2006) (evidence insufficient where “boys did not experience a reaction so intense that they immediately sought to notify someone of the defendant's behavior”). Contrast Commonwealth v. Swan, 73 Mass. App. Ct. 258, 261 (2008) (evidence sufficient where young student was “grossed out” and made “nervous” by exposure and rushed from room); Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 273-274 (2001) (evidence sufficient where student testified to being in shock, upset, angry, and sad; that she left after defendant's exposure; and that her delay in reporting “was due ․ to her being ‘too in shock’ ”); Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 301, 304 (1999) (evidence sufficient where girl alerted parents to defendant's conduct and testified that she felt “very uncomfortable and nervous”); Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901 (1996) (jury could find alarm where witness testified that he was “'disgust[ed]' by what he saw,” and “acted swiftly and purposefully to stop and identify the perpetrators for the police”).

The defendant does not challenge the sufficiency of the evidence with respect to the first four elements of open and gross lewdness, including public exposure of his penis, see G. L. c. 277, § 79. Accordingly, we shall vacate the judgment on the indictment charging open and gross lewdness and direct that a new judgment enter on the lesser included offense of indecent exposure.

2. The prosecutor's closing argument. The defendant contends that the prosecutor exceeded the bounds of proper argument at various points during his closing remarks. First, the defendant claims that the prosecutor disparaged the defense when, in response to defense counsel's focus on Sally's testimony regarding the dog, the prosecutor stated: “These last two days have not been about a dog. It's not been about a dog at all. This is not a dog show. We're not going to ask who [is] best in show.” The defendant did not object, and we must therefore determine whether there was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001).

A prosecutor may not disparage defense counsel personally or characterize defense counsel as “obscuring the truth or intentionally misleading the jury.” Commonwealth v. Lewis, 465 Mass. 119, 130 (2013), quoting Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002). Here, however, contrary to the defendant's assertions, the prosecutor did not impugn the entire defense or directly disparage defense counsel. Rather, the prosecutor's remarks addressed the merit of defense counsel's specific argument regarding the significance of testimony about the dog. These remarks did not exceed the bounds of proper argument.

Next, the defendant challenges the prosecutor's statement: “I think this case has been proven to you beyond a reasonable doubt.” The defendant did not object to this statement either. While the words “I think” were better left unsaid, viewed in context, there was no error. It is improper for a prosecutor to express his personal belief in the testimony or to vouch for the credibility of a witness, but that did not happen here. See Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008). The challenged comment followed the prosecutor's initial remarks that focused the jury's attention away from defense counsel's argument regarding Sally's testimony about the dog to Sally's testimony about what “had happened to her.” The prosecutor's statement, “As for that, judging by her testimony, I think this case has been proven to you beyond a reasonable doubt,” was likewise aimed at directing the jury's attention to Sally's testimony regarding the incident itself. The prosecutor subsequently recounted Sally's testimony without improperly vouching for her credibility or inserting his own views. Viewing the remark, in context, as we must, there was no error.

Nor did the prosecutor's hypothetical, which compared Sally's and her father's inability to remember details about the dog to the jurors' hypothetical inability to remember the color of defense counsel's tie at the end of the day, exceed the bounds of proper argument. The prosecutor ended this line of argument by stating, “You might not be able to recall that, and that was just a day ago. Does that mean that you weren't in here being jurors? Does that mean you weren't listening? No. You were listening to the important things.” Defense counsel did not object to these statements. There is nothing in the comments themselves that implied that the prosecutor had independent knowledge relative to Sally's credibility, as the defendant asserts. The jury were capable of recognizing the remarks as part of the prosecutor's argument regarding the relative unimportance of the testimony about the dog. Cf. Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (“A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed”).

Finally, the defendant claims that the prosecutor misstated the evidence and impermissibly shifted the burden of proof when he pointed out that Sally had testified that she did not see where the defendant brought the dog and then stated, “What happened to the dog? I don't know. Did he bring it inside? Did he tie it to a tree? We don't know. And, to be clear, you didn't hear any evidence.” Defense counsel objected, pointing out at a sidebar discussion that Sally's testimony on cross-examination was that she saw the dog being put in the house. The judge noted that the evidence was “a mixed bag” and instructed the prosecutor to “stick to the evidence.” Because the issue was preserved, we review for prejudicial error. See Commonwealth v. Niemic, 483 Mass. 571, 598 (2019).

The prosecutor's rhetorical questions did not shift the burden of proof. “Rhetorical questions commenting on the evidence are not improper.” Commonwealth v. Fernandes, 478 Mass. 725, 742 (2018). “They may permissibly suggest that the defendant's defense is implausible based on the evidence and the reasonable inferences that can be drawn therefrom.” Id. In addition, while the prosecutor's statement that the jury heard “no evidence” of where the defendant brought the dog was inaccurate in light of Sally's testimony on cross-examination, the misstatement was not prejudicial. Defense counsel had pointed out in his own closing argument Sally's testimony that the defendant had brought the dog inside the house. The judge instructed the jury that they were the “sole and exclusive judges of the facts” and that closing arguments were not evidence. The jury were able to assess Sally's credibility and to resolve the conflict in her testimony. In the context of the entire case, the prosecutor's lone misstatement was not prejudicial.

Conclusion. On the indictment charging open and gross lewdness, the judgment is vacated, so much of the verdict as finds the defendant guilty of the lesser included offense of indecent exposure is to stand, the remaining portion of the verdict on that indictment is set aside, and a new judgment shall enter on the lesser included offense of indecent exposure. The remaining judgments are affirmed.

So ordered.

Affirmed in part; vacated in part and set aside.