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Appeals Court of Massachusetts.



Decided: April 26, 2021

By the Court (Green, C.J., Vuono & Henry, JJ.1)


A jury convicted the defendant, James A. Finn, of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. On appeal, he challenges the sufficiency of the evidence supporting his conviction. We affirm.

Discussion. The defendant moved for required findings of not guilty at the close of the Commonwealth's case and at the close of the evidence. Both motions were denied. In these circumstances, “[w]e [first] consider the state of the evidence at the close of the Commonwealth's case to determine ․ whether the Commonwealth [had] presented sufficient evidence of the defendant's guilt to submit the case to the jury” (quotations and citations omitted). Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018). We evaluate the sufficiency of the Commonwealth's evidence presented in its case-in-chief in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and conclude that the Commonwealth met its burden of proof.

“To sustain a conviction of indecent assault and battery on a child, the Commonwealth must prove, beyond a reasonable doubt, that (1) the child was not yet fourteen years old at the time of the offense, (2) the defendant intentionally touched the child without legal justification or excuse, and (3) the touching was indecent. See G. L. c. 265, § 13B.”

Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138 (2018). The defendant contested only the second and third elements, arguing that his touching of the child was not intentionally indecent or unjustified.

Here, the Commonwealth's evidence established that the defendant invited the victim, eight years old at the time, and two other children into his apartment. The defendant invited the victim to sit on his lap while he viewed pornographic images on his computer. The defendant then touched the victim on her “private part” with “[h]is hands.” The victim referred to the place the defendant touched her as her “penis” and then answered yes when asked if the defendant touched “the front private part that you use ․ to go to the bathroom.” Had the jury simply believed the victim's testimony, as it in fact appears to have done, there was sufficient evidence to support a finding of guilt beyond a reasonable doubt. See Commonwealth v. Peters, 429 Mass. 22, 24 (1999); Commonwealth v. Plouffe, 52 Mass. App. Ct. 543, 545 (2001).

The victim's various terms for her genitalia do not render the testimony insufficient to support a finding of guilt beyond a reasonable doubt. See Peters, 429 Mass. at 24, citing Commonwealth v. Clary, 388 Mass. 583, 589 (1983). “We do not require victims to describe with scientific accuracy parts of their anatomy or for children to possess vocabulary and habits of precision that many adults do not command” (citation omitted). Commonwealth v. King, 445 Mass. 217, 224 (2005). Instead, to the extent these were inconsistencies at all, “[t]he inconsistencies in the witness['s] testimony ․ go [only] to [ ] credibility and do not affect the sufficiency of the evidence.” Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). Questions of credibility in deciding a motion for a required finding of not guilty are resolved in the Commonwealth's favor. Commonwealth v. Brown, 477 Mass. 805, 812 (2017); Commonwealth v. Dilone, 385 Mass. 281, 286 (1982). See also Commonwealth v. Brown, 401 Mass. 745, 747 (1988) (“The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding”).

We next consider the defendant's motion at the close of the evidence. Deterioration occurs only where the defendant had presented “contrary evidence ․ so overwhelming that no rational jury could conclude that the defendant was guilty” (citation omitted). Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017). Where, as here, the Commonwealth's otherwise sufficient case was contradicted only by the defendant's uncorroborated testimony, there has been no deterioration. Commonwealth v. Gomez, 450 Mass. 704, 710-711 (2008) (“Where, as here, the evidence at trial turns solely on the credibility of [the defendant's] witnesses, the Commonwealth's case cannot deteriorate” [quotation and citation omitted]). See also Alden, 93 Mass. App. Ct. at 445.

The judge properly denied the defendant's motions for a required finding of not guilty.

Judgment affirmed.

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