Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

Wilful or Malicious v. Wanton:

Wilful or malicious act injurious to property is deemed criminal when it is shown to have been committed with a spirit of cruelty, revenge, or hostility. Wanton destruction of property concerns a spirit of indifference or recklessness, perhaps even arrogance or insolence, but not cruelty, revenge or hostility. Commonwealth v. Ruddock, 25 Mass. App. Ct. 508 (1988).
“Willful” means intentional and by design, in contrast to that which is thoughtless or accidental. Commonwealth v. McGovern, 397 Mass. 863 (1986). “Malicious” refers to state of mind of cruelty, hostility or revenge. Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437 (1983). Both wilfulness and malice must be proved beyond a reasonable doubt. Commonwealth v. Armand, 411 Mass. 167, 170 (1991).
A wilful actor intends both his conduct and the resulting harm, whereas a wanton or reckless actor intends his conduct but not necessarily the resulting harm. Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920 (1983).
Wanton conduct is synonymous with a reckless disregard for the rights of others. Commonwealth v. Byard, 200 Mass. 175, 177-78 (1908).
Wanton destruction requires only a showing that the actor’s conduct was indifferent to or in disregard of probable consequences. Commonwealth v. Armand, 411 Mass. 167, 171 (1991).

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  Lesser Included:
  

Wanton is not a lesser included offense of willful and malicious since wanton requires proof of an element not required for willful and malicious (that the likely effect of the def.’s conduct is substantial harm). Commonwealth v. Schuchardt, 408 Mass. 347 (1990).

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  The Value of the Property:
  

To determine whether a malicious destruction of property offense is a felony (damage greater than $250) or a misdemeanor (damage is less than $250) where only a portion of the property is damaged, the “value of the property” is the reasonable cost of repair or replacement, or the pecuniary loss. This also applies to the felony offense of wanton destruction of property. Commonwealth v. Deberry, 441 Mass. 211 (2004).
The finder of fact may determine from common experience or descriptive testimony that the damaged property has a value in excess of $250. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926).
An owner may be permitted to offer an opinion as to the value of his property. Selby Associates v. Boston Redevelopment Authority, 27 Mass. App. Ct. 1188, 1190 (1989).


Disorderly Conduct; Disturbing the Peace ch. 272, § 53

disorderly persons or disturbers of the peace or persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex

6mos. house, or $200, or both

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  Disorderly conduct entails intentional conduct tending to “disturb the public tranquillity, or alarm and provoke others.” Alegata v. Commonwealth., 353 Mass. 287, 303-04 (1967).
  
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  Statute requires the disturbance to have an impact on people in an area accessible to the public, and police presence in and of itself is not sufficient to establish public element. Commonwealth v. Mulvey, 57 Mass. App. Ct. 579 (2003).
  
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  Voyeurism is an activity that creates a physically offensive condition that “may cause alarm to the person peered at, ... and thereby makes a breach in the public peace.” Commonwealth v. LePore, 40 Mass. App. Ct. 543, 548 (1996).
  

Drugging Person for Sexual Intercourse ch. 272, § 3

applies, administers to or causes to be taken any drug, matter or thing with intent to stupefy or overpower so as to enable unlawful sexual intercourse or unnatural sexual intercourse

life or any term, not less than 10 yrs. prison

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  Proof of sexual relations is not required element. Commonwealth v. Helfant, 398 Mass. 214 (1986). Conviction requires complainant’s testimony be corroborated in “material particular.” Id.
  
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  A substance with a medicinal purpose is a “drug” for purposes of the statute. Sufficient: giving teenage girls seasickness medication. Commonwealth v. Odell, 34 Mass. App. Ct. 100, rev. den., 414 Mass. 1105 (1993).
  
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  Evidence from one of four teenage victims that the def gave pills to none of the girls satisfied corroboration requirement for evidence that the def administered a drug with the intent of facilitating unlawful sexual intercourse. Id.
  

Firearms, Use of In Committing Felony ch. 265, § 18B

while committing or attempting to commit a felony possesses a firearm, rifle, or shotgun (if used during commission of second or subsequent offense) if weapon is large capacity weapon or possesses a machine gun (if used during commission of second or subsequent offense)

in addition to felony penalty: not less than 5 yrs in addition to felony penalty: min./mand. 20 years in addition to felony penalty: not less than 10 yrs in addition to felony penalty: min./mand. 25 years

Indecent Assault & Battery ch. 265, § 13H

indecent assault & battery on a person 14 or older	5 yrs. prison or 2 1/2 yrs. house
if commit Indecent A&B on an elder person (60 yrs or older) OR person with disability if second or subsequent offense (of either section):	10 yrs. prison or 2 1/2 yrs. house 20 yrs. prison

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  As judicially defined, includes intentional, unprivileged and indecent touching of victim, i.e., immodest, immoral and improper. Commonwealth v. Mosby, 30 Mass. App. Ct. 181 (1991).
  
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  The term “indecent” comprehends the unconsented and offensive touching of the breasts, abdomen, buttocks, thighs, or pubic area -- portions of the anatomy recognized as private. Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982).
  
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  “An indecent act is one that is fundamentally offensive to contemporary standards of decency.” District Court Model Jury Instruction 5.403.
  
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  The crime, like ordinary assault and battery, is one of general intent. Commonwealth v. Egerton, 396 Mass. 499, 504 (1986). The Commonwealth has the same burden of proving lack of victim’s consent for Indecent A&B as it would have had for rape. Commonwealth v. Simcock, 31 Mass. App. Ct. 184 (1991).
  
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  An attempt to commit an indecent assault and battery is a felony offense that may be properly charged by the Commonwealth. See Commonwealth v. Marzilli, 2010 Mass. LEXIS 301.
  

Indecent Assault & Battery, or A& B, Mentally Retarded Person ch. 265, § 13F

indecent assault & battery on mentally retarded person knowing such person to be mentally retarded (not apply to mentally retarded offender of mentally retarded victim)	5 - 10 yrs. prison; if 2d offense: 10 yrs. min./mand.
assault & battery on mentally retarded person knowing such person to be mentally retarded (not apply to mentally retarded offender of mentally retarded victim)	2 1/2 yrs. house or 5 yrs. prison; if 2d offense: 10 yrs. prison

Intimidation of Witness/Victim ch. 268, § 13B

victim was a witness or a juror in a criminal proceeding (or any person furnishing information to a criminal investigator) def. willfully endeavored (tried) to influence him/her (impede, obstruct, delay or interfere with, by means of gift, offer or promise of anything of value, or by misrepresentation; or injure person or property) def. did so by means of intimidation, force, or threats of force, whether express or implied def. did so with the specific intent of influencing her testimony or verdict.

2 1/2 yrs house or 2 1/2 - 10 yrs. prison; and $1,000 - $5,000

The intimidation of a witness statute has a broad scope and proscribes activity beyond attempts to influence a witness’s testimony. Commonwealth v. Cathy C, 64 Mass. App. Ct. 471 (2005).

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  Elements:
  

Intimidation, unlike a threat of force, does not require that a victim be placed in fear or apprehension of actual physical harm. Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235-36 (1998).
Because the test is objective, the def.’s subjective intent is irrelevant. Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 236 (1998).
Use of “endeavors” indicates legislative intent to punish any willful conduct that amounted to “effort or essay.” Endeavor is a lower threshold than attempt. Commonwealth v. Rondeau, 27 Mass. App. Ct. 55 (1989).
The term “witness” includes any person who has been or who may possibly be called upon to testify in a criminal proceeding. Commonwealth v. Burt, 40 Mass. App. Ct. 275, 277-78 (1996). The exact nature of the underlying criminal proceeding is irrelevant. Commonwealth v. Wiencis, 48 Mass. App. Ct. 688, 691 (2000).
Not essential element that actual witness or juror be approached. Commonwealth v. Rondeau, 27 Mass. App. Ct. 55 (1989) (victim’s niece paid by mistake, instead of victim, to drop A&B).

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  Sufficient:
  

While def.’s intent may have had an element of ambiguity, his violent confrontation with a witness at the very door of the courtroom could have led a jury to properly infer that his purpose was either to rattle the witness or to influence his testimony. Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800-01 (1998).
Pulling phone cord out of a wall after his sister-in-law stated that she was going to call police was sufficient because the def. “forcefully interfered with his sister-in-law’s attempt to furnish information to the police… .” There is no requirement that the investigation be “on-going” when the intimidation occurs. Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, further app rev. den., 427 Mass. 1103 (1998).
Def. called witness day after she testified in a stalking case made statements intending to frighten her. Commonwealth v. Potter, 39 Mass. App. Ct. 924 (1995).

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  A charge of witness intimidation under § 13B may trigger a motion by the Commonwealth for pretrial detention pursuant to Mass. Gen. Laws ch. 276, § 58A.
  

Kidnapping/Unlawful Restraint ch. 265, § 26

without lawful authority forcibly or secretly confines or imprisons another within Mass. or forcibly carries or sends out of Mass. or forcibly seizes and confines or inveigles or kidnaps with intent to do the above or in any way cause the person to be held to service against his will	10 yrs. prison; or $1,000 and 2 1/2 yrs. house
with the intent to extort money or other valuable thing if armed with firearm, rifle, shotgun, machine gun or assault weapon (not apply to parent) with the intent to extort and when armed with firearm, shotgun, machine gun or assault weapon serious bodily injury or sexual acts if victim is child under 16 (does not apply to parents who take custody of children under 18)	life or any term of years not less than 10 yrs. prison; or 2 ½ yrs. house not less than 20 yrs. prison not less than 25 yrs. prison 15 yrs. prison;

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  Sufficient:
  

Def. could be found guilty after locking victim in apt. for two hours or placing car in such a way to prevent victim from leaving premises in her car. Commonwealth v. Sumner, 18 Mass. App. Ct. 349, rev. den. 393 Mass. 1101 (1984).
Def. moved into victim’s car uninvited, shoved victim from steering wheel and took him to secluded area, where further confined him. Commonwealth v. Saylor, 27 Mass. App. Ct. 117 (1989).
Fact that kidnapping and assault victim might have tried to escape or summon help but failed to do so would not palliate abduction or assault. Commonwealth v. Dean, 21 Mass. App. Ct. 175 (1985), rev. den.. 396 Mass. 1105 (1986).

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  Force:
  

Physical force need not be applied against the victim, if the victim is subdued by “display of potential force.” Sufficient evidence that def. intended forcibly to confine victim against her will, where 18 year-old stepdaughter of def. was “scared” of def., followed his instruction to sit in the car; def. drove away and held her against her will while threatening to kill her; and stepdaughter escaped only by fleeing from def.’s grasp when car stopped. Commonwealth v. Titus, 32 Mass. App. Ct. 216, rev. den., 412 Mass. 1104 (1992).

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  Prosecute Both Rape and Kidnapping:
  

Def. could be prosecuted and convicted for both the kidnapping and rape, where evidence showed confinement of victim occurred at bus station and on way to building where rape occurred. Commonwealth v. Vasquez, 11 Mass. App. Ct. 261 (1981).
Where def.’s confinement of victim exceeded restraint incidental to rape, def. could be convicted of both rape and kidnapping. Commonwealth v. Sumner, 18 Mass. App. Ct. 349, rev. den., 393 Mass. 1101 (1984).

Kidnapping of Child by Relative ch. 265, § 26A

relative of child under 18 without lawful authority holds or intends to hold the child permanently/or protracted period or takes or entices child from lawful custodian or takes or entices from lawful custody any incompetent person or other person entrusted to custody of another person/institution	1 yr. house or $1,000 or both
if child taken/held outside Mass. or if exposed to safety risk	$5,000 or 5 yrs. prison or both

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  Parental kidnapping requires that the offending parent be in violation of a court order. Commonwealth v. Beals, 405 Mass. 550 (1989) (plaintiff husband got ex parte 209A order granting him temporary custody of the children ten days after the defendant/wife left the country with their children; she had no knowledge of the order and could not be prosecuted for parental kidnapping).
  

Open & Gross Lewdness (Indecent Exposure) ch. 272, § 16

expose genitalia, buttocks or female breasts to one or more persons (Commonwealth v. Quinn, 439 Mass. 492 (2003)) intentionally openly (either intended public exposure, or recklessly disregarded a substantial risk of public exposure, to others who might be offended by such conduct) in such a way as to produce alarm or shock, and one or more persons were in fact alarmed or shocked (this element distinguishes § 16 from § 53)

3 yrs. prison or 2 yrs. house or $300

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  Definition:
  

Similar to common law offense of indecent exposure. Commonwealth v. Broadland, 315 Mass. 20 (1943).

Imposition of lewdness or nudity upon unsuspecting or unwilling person. PBIC v. Byrne, 313 F. Supp. 757 (D. Mass. 1970).

Exposure or attempted exposure of genitalia is not an essential element of an open and gross lewdness offense. Buttocks and/or female breasts are included as well. Commonwealth v. Quinn, 439 Mass. 492 (2003).

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  Alarm or Shock:
  

The defendant’s act must be committed in such a way as to cause alarm or shock in the victim. Commonwealth v. Fitta, 391 Mass. 394, 396 (1984); Commonwealth v. Wardell, 128 Mass. 52, 53 (1880).
The “tender years” Supplemental Jury Instruction 5.42 for use in District Court should not be given in cases involving open and gross lewdness because the instruction suggests that it is unnecessary to prove the element of alarm or shock where children are involved. Commonwealth v. Kessler, 442 Mass. 770 (2004).
Shock and alarm equated with discomfort and unease; that child victim did not act hysterical not dispositive. Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-04 (1999). However, mere nervousness and offense has never been held sufficient to warrant a finding that the viewer was alarmed or shocked. Commonwealth v. Kessler, 442 Mass. 770 (2004).

Conduct which produces alarm or shock is element for ch. 272, § 16, but not for indecent exposure in ch. 272, § 53. Indecent exposure only requires intentional act of lewd exposure offensive to one or more persons. Commonwealth v. Fitta, 391 Mass. 394 (1984). The disparity in sentencing between the two crimes is not unconstitutional.

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  Adult or Child Victim:
  

While the statute has been primarily applied to children (victims), it does not expressly include such a requirement nor has it been so construed. Commonwealth v. Gray, 40 Mass. App. Ct. 901, 902 n.1 (1996).

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  Openly:
  

Lewdness in secret is not enough. Commonwealth v. Catlin, 1 Mass. 8 (1804).
It is enough if it be an intentional act of lewd exposure, offensive to one or more persons. Commonwealth v. Broadland, 315 Mass. 20, 21-22 (1943).


Manslaughter ch. 265, § 13

unlawful killing of a human being in commission of a misdemeanor or by a wanton and reckless act without malice aforethought	20 yrs. prison or $1,000 and 2 1/2 yrs. house
if while violating ch. 266, §§ 101-102B (explosives, infernal machines, molotov cocktails)	any term/ life

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  Voluntary v. Involuntary:
  

Manslaughter is simply battery causing death. Manslaughter may be found if the act causing death was intentionally done, even if death was accidental. Involuntary manslaughter is “an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life … or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.” Commonwealth v. Campbell, 352 Mass. 387, 397 (1967).

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  Involuntary:
  

Involuntary manslaughter is “intentional conduct unintentionally causing death.” Commonwealth v. Sullivan, 29 Mass. App. Ct. 93, 99 (1990).
“(E)ach type of involuntary manslaughter requires a showing that the defendant knew, or should have known, that his conduct created a high degree of likelihood that substantial harm would result to another.” Commonwealth v. Sneed, 413 Mass. 387, 393 (1992).
The only form of “unlawful act” manslaughter recognized under modern Massachusetts law is a misdemeanor battery causing death, an involuntary manslaughter (i.e. a fatal punch to the face). See Commonwealth v. Sheppard, 404 Mass. 774, 775-77 (1989).
“The difference between the elements of the third prong of malice for purposes of murder and wanton and reckless conduct amounting to involuntary manslaughter lies in the degree of risk of physical harm that a reasonable person would recognize was created by the particular conduct, based on what the defendant knew.” Commonwealth v. Sires, 413 Mass. 292, 303 n.14 (1992).

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  Defense of Accident:
  

When a defendant claims his conduct was accidental, such a claim is a defense to a charge of involuntary manslaughter and the jury should be given an accident instruction if factually appropriate. Commonwealth v. Figueroa, 56 Mass. App. Ct. 641 (2002).

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  Voluntary / Provocation:
  

Voluntary manslaughter instructions are given if there is “... evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Halbert, 410 Mass. 534, 538 (1991); see Commonwealth v. Fuller, 421 Mass. 400, 413 (1995) (given the evidence of defendant’s long-smoldering anger at the victim, “the failure to instruct on voluntary manslaughter because of a killing in a sudden rage or on provocation was not error”).
Voluntary manslaughter instruction not required, where def. and victim argued over money and def. told police “she was going to throw me out and so I shot her.” Commonwealth v. Callahan, 401 Mass. 627 (1988).
Hostile and obscene character of wife’s statements to estranged husband was not sufficient provocation to reduce murder to voluntary manslaughter. Commonwealth v. Bermudez, 370 Mass. 438 (1976).
Quarreling alone cannot provide sufficient provocation to reduce murder to manslaughter. Commonwealth v. Watkins, 373 Mass. 849 (1977).
Provocation is not viewed subjectively, but objectively: would reasonable person have become sufficiently provoked. Commonwealth v. Halbert, 410 Mass. 534 (1991).