COMMONWEALTH v. BONANNO (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, a District Court judge found the defendant guilty of indecent assault and battery on a person under the age of fourteen. The judge specifically found, beyond a reasonable doubt, that the defendant intentionally touched his thirteen year old daughter's breast while the defendant and daughter were in a public pool. On appeal, the defendant challenges the sufficiency of the evidence. We affirm.

On October 26, 2019, the defendant and his daughter were playing in a YMCA pool in East Bridgewater. YMCA employees observed the defendant and his daughter engaged in extended close physical contact. For example, a lifeguard observed the daughter wrap her arms around the defendant's neck, pull him extremely close, and lick the defendant's face.²

While the defendant and his daughter were in the pool, the lifeguard and another YMCA employee observed the defendant's hand on the daughter's breast for an extended period. Specifically, the lifeguard testified that it was there for “at least five minutes,” while the other employee testified that it was there for “more than a minute.”³ The judge fully credited both witnesses’ testimony.⁴ Based on the length of time that the hand was on the daughter's breast, the judge reasonably inferred that the contact was intentional. Although the defendant testified that any contact was “accidental,” nothing required the judge, as fact finder, to credit that testimony.⁵ The judge's factual findings were not clearly erroneous, and together they were sufficient to establish the elements of indecent assault and battery on a person under fourteen. See Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982) (intentional, unjustified touching of “the breasts, abdomen, buttocks, thighs, and public area of a female” constitutes indecent assault and battery).⁶

Judgment affirmed.

FOOTNOTES

2.   The daughter's mother described her daughter as extremely “clingy” toward the defendant and as presenting with various special needs.

3.   The second eyewitness added that the defendant's hand on the daughter's breast “wasn't something brief, like it wasn't a brushing or anything.” She also testified that, when the defendant's hand was on his daughter's breast, the daughter's hand was “on top of his.”

4.   Although the testimony of the two employees differed in some incidental respects, the two witnesses were consistent in their having observed the defendant's hand on his daughter's breast for an extended period. Nothing in the surveillance video footage introduced as an exhibit -- which we have viewed -- contradicts the testimony about such observations.

5.   The judge does appear to have credited the defendant's testimony that he did not admit to the police that his hand may have been on his daughter's breast “too long.” In any event, the judge made it clear that he was not relying on testimony from two police witnesses that the defendant made such an admission.

6.   Our holding is consistent with our decision in Commonwealth v. Lahens, 100 Mass. App. Ct. 310, 320 (2021). In that case, the defendant touched the victim's breasts in the context of a physical struggle and claimed the contact was accidental, therefore, evidence of intentionality was insufficient. In rejecting that argument, we pointed to other evidence of intentionality, such as the defendant's earlier, unwanted sexual advances toward the victim. Id. Nothing in Lahens suggests that we viewed other such evidence as necessary in a case like the one before us, where there was evidence that the defendant touched the victim's breast for an extended period.