Commonwealth v. Mark L. Gaglini.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1034

COMMONWEALTH

vs.

MARK L. GAGLINI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a conviction of indecent assault

and battery on a person fourteen or over pursuant to G. L.

c. 265, § 13H. He argues that the Superior Court judge erred by

(1) denying his motion for a required finding of not guilty, and

(2) declining to provide a curative jury instruction. We

affirm.

Background. 1 On August 2, 2019, the victim, a sixteen year

old male, took a driving lesson with the defendant as his

instructor. At the start of the lesson, the defendant got out

of his vehicle, greeted the victim, and said something to the

effect of, "I don't want us to get too crazy now." The

1We recite the facts in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979).
defendant's tone made the victim uncomfortable. Before starting

to drive, the defendant told the victim that rather than use the

passenger brake pedal, he would either grab the victim's arm or

touch his leg to correct any driving mistakes. During the

lesson, the defendant touched the victim over twenty times, near

his groin area, lasting anywhere from a short tap to ten seconds

long. The victim stood and showed the jury where the defendant

touched him and testified that if his penis was on that side,

the defendant would have touched it. When the victim stated

that he did not want to ride longer, the defendant tried to hug

him. Once they arrived near the victim's home, the defendant

got out of the vehicle with the victim, who again expressed that

he did not want to be hugged. The defendant hugged him anyway.

The victim left the area immediately thereafter and called his

mother, upset and crying, to report that the defendant had

touched him on his leg and groin area.

Discussion. 1. Motion for a required finding. The

defendant alleges that the trial judge erred by denying the

defendant's motion for a required finding of not guilty because

the Commonwealth failed to provide sufficient evidence to

support his conviction for indecent assault and battery on a

person fourteen or over. We disagree.

When reviewing the denial of a motion for a required

finding of not guilty, "we consider the evidence introduced at

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trial in the light most favorable to the Commonwealth, and

determine whether a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "That

evidence would encompass all the circumstances surrounding the

touching and include the reasonable inferences that could be

drawn therefrom." Commonwealth v. Shore, 65 Mass. App. Ct. 430,

432 (2006).

To prove a conviction of indecent assault and battery on a

person fourteen or over, the Commonwealth must establish that

"'the defendant committed an intentional, unprivileged, and

indecent touching of the victim' without the victim's consent."

Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020),

quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018).

"Indecent assault and battery [on a person fourteen or over] is

a general intent crime." Id. Thus, the Commonwealth bears the

burden of proving the absence of consent, but not that the

defendant intended the act to be without consent. Commonwealth

v. Moran, 439 Mass. 482, 490 (2003).

"A touching is indecent when, judged by the 'normative

standard' of societal mores, it is 'violative of social and

behavioral expectations,' in a manner 'which [is] fundamentally

offensive to contemporary moral values . . . [and] which the

common sense of society would regard as immodest, immoral and

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improper.'" Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625

(2004), quoting Commonwealth v. Lavigne, 42 Mass. App. Ct. 313,

314-315 (1997). An "intentional, unjustified touching" of

private areas such as the buttocks, thighs, and pubic area

constitutes an indecent touching. Commonwealth v. Mosby, 30

Mass. App. Ct. 181, 184-185 (1991).

Here, a rational juror could infer from the evidence

presented that the defendant intentionally committed an indecent

act without consent from the victim. The victim testified that

the defendant told him the defendant would touch the victim on

the leg or arm in order to correct his driving mistakes. The

defendant touched the victim on the leg and groin area over

twenty times during a forty-five minute lesson and for longer

than necessary to correct a driving mistake. While the victim

did not manifestly object to the defendant's touching, "we do

not require an explicit verbal or physical rebuff to prove lack

of consent." Shore, 65 Mass. App. Ct. at 433. The victim

further testified that the defendant, a driving instructor he

had just met that day, hugged him over his objection. The jury

were entitled to credit the testimony of the victim, which

supports the conviction. See Commonwealth v. Lao, 443 Mass.

770, 779 (2005) ("If, from the evidence, conflicting inferences

are possible, it is for the jury to determine where the truth

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lies, for the weight and credibility of the evidence is wholly

within their province").

2. Curative jury instruction. The defendant further

argues that the trial judge erred by failing to provide a

curative instruction regarding the victim's "emotional

outburst." Specifically, the defendant takes issue with the

following portion of the prosecutor's line of questioning of the

victim:

Q: "Do you remember if you were crying at all [during
telephone call to mother]?"

A: "(Inaudible.)"

Q: "Sorry, was that a 'yes'?"

A: "Yeah."

Q: "Were you crying?"

A: "(Inaudible.)"

Q: "And I noticed you're shaking today; how do you feel
today?"

A: "I'm cold."

Q: "And how else do you feel?"

Defense counsel: "Objection."

The judge: "Overruled."

A: "Embarrassed."

Q: "Why do you say that?"

Defense counsel: "Objection."

The judge: "Sustained, sustained."

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A: "Just let another . . . man touch me like that."

Q: "It's all right. If you want, there are some tissues
right to your left."

The defendant claims that this exchange created a

substantial risk of a miscarriage of justice, where the jury

were not later instructed to disregard emotion in coming to a

verdict. Although the defendant objected to the victim's

testimony, he did not request a curative instruction, and thus,

"[o]ur review . . . is limited to determining whether the

judge's omission created an error and, if so, whether there was

a substantial risk of a miscarriage of justice." Commonwealth

v. Simmarano, 50 Mass. App. Ct. 312, 315 (2000).

Emotional outbursts are not uncommon in criminal trials,

and we give substantial deference to the judge's effort to

adequately remedy the potential prejudice. See, e.g.,

Commonwealth v. Martinez, 437 Mass. 84, 89-90 (2002) (trial

judge's decision to issue curative instruction rather than grant

mistrial not abuse of discretion); Commonwealth v. Hardy, 431

Mass. 387, 392 (2000) (trial judge was in best position to

evaluate all circumstances and actual prejudicial effect;

accordingly, ruling was entitled to substantial deference).

While curative instructions are "an adequate means to correct

any error . . . to the defendant," Commonwealth v. Amirault, 404

Mass. 221, 232 (1989), deference is given to the judge's

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decision even in the absence of curative instructions. See,

e.g., Commonwealth v. Morales, 440 Mass. 536, 548 (2003) (no

error where judge denied motion for mistrial and did not issue

curative instruction after noting that jury were not affected by

emotional outburst). Indeed, generally, trial judges are not

required to give curative instructions sua sponte. See

Commonwealth v. Qualls, 440 Mass. 576, 584 (2003).

Additionally, any potential prejudice to the defendant from

the victim's display of emotion (and from the prosecutor's

related appeal to the jury's emotion during his closing) was

remedied when the judge told the jurors that they "must be

completely fair and impartial . . .[,] not swayed by prejudice,

[or] by sympathy" and that they had to decide "whether to

believe a witness and how much importance to give a witness's

testimony" by considering the evidence as a whole. Indeed, the

judge gave a robust and detailed instruction to the jury on how

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to appropriately weigh the testimony before them. This

instruction was sufficient to cure any error.

Judgment affirmed.

By the Court (Neyman, Henry &
Ditkoff, JJ. 2),

Assistant Clerk

Entered: April 22, 2024.

2 The panelists are listed in order of seniority.

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