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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Nebel,
Present: Porada, Laurence, & Kantrowitz, JJ.
The case was tried before Gregory L. Phillips, J.
Suzanne Dwyer-Jones for the defendant.
Adam T. Narris, Assistant District Attorney, for the Commonwealth.
KANTROWITZ, J.
The defendant, Robert Nebel, was convicted of
lewd, wanton and lascivious conduct, G. L. c. 272, § 53, and abandonment
of an infant under age of ten, G. L. c. 119, § 39.[1] Basically, the case boils down to two issues:[2] (1) Was the defendant's sex act
public in nature? and (2) Did the defendant's actions, in leaving his three and
one-half year old child in an unattended car, support a conviction of child
abandonment? We affirm the former conviction and reverse the latter.
Facts. On
The rest area was surrounded on three sides by thin woods and bushes; the
fourth side of the rest area was the highway. There was more than one path
leading into the woods. The path at issue in this case was off the paved
parking lot and down a grassy hill. It was a well worn dirt and rock path, with
no vegetation growing on it.
O'Leary walked up the paved parking area, down
a grassy hill and entered the path by the bushes and trees. He walked about
forty to fifty feet up a hill, to a large hole in the first fence. At that
fence, he passed a male going in the opposite direction. O'Leary confronted the
man and asked what he was doing there. The man told him he had been in there
urinating. O'Leary testified that he responded, "I really don't think you
were in there urinating. [The man] said, 'yes I was, but there's other males,'
and he motioned over his shoulder, 'doing other things back there.'"
O'Leary walked another forty feet from the fence through another large opening
in a second fence, to the top of the hill. Looking down the other side of the
hill, O'Leary had a clear view of the defendant and two other men at a distance
of forty to fifty feet away. The defendant was masturbating, while the two
other males, "in very close proximity to him," were watching.[3]
O'Leary confronted the trio[4] and instructed them to walk back
down the path. At the defendant's car, O'Leary saw, through the front
windshield, the defendant's three and one-half year old child, alone and
asleep. After securing identification from the two other men, he let them
leave. The defendant, conversely, was informed that he was facing several
charges and that the trooper was going to call the defendant's wife, which he
did.
O'Leary chose not to arrest the defendant at that time because he wanted to
avoid disturbing the child. The Department of Social Services (DSS) was
contacted and an investigation ensued, resulting in the defendant being
admonished about his lapse of judgment in leaving his daughter. The DSS case was then closed.
Lewd, lascivious and wanton behavior. General Laws c. 272, § 53, contains
a laundry list of prohibited acts, including "lewd, wanton and lascivious
. . . behavior." Model Jury Instruction 5.422, which the judge
appropriately read to the jury (making some minor changes as the facts dictated),
puts meat on the bare bones of the statute:
"In order to prove the defendant guilty of
this offense, the Commonwealth must prove four things beyond a reasonable
doubt:
First: That the defendant (committed) (publicly
solicited another person to commit) a sexual act;
Second: That the sexual act involved touching
the genitals or buttocks, or the female breasts;
Third: That the defendant did this either for
the purpose of sexual arousal or gratification, or for the purpose of offending
other people; and
Fourth: That the sexual act (was) (was to be)
committed in a public place; that is, a place where the defendant either
intended public exposure, or recklessly disregarded a substantial risk of
public exposure at that time and under those circumstances, to others who might
be offended by such conduct."
Here, the first three elements were easily met.
The defendant (1) committed a sexual act (2) involving the touching of his
genitals (3) for the purpose of sexual arousal or gratification.[5] The key issue is the fourth element
-- the public nature of the act. Case law has established that
"[t]he essential query is whether the
defendant intended public exposure or recklessly disregarded a substantial risk
of exposure to one or more persons . . . . The Commonwealth must prove that the
likelihood of being observed by casual passersby must have been reasonably
foreseeable to the defendant, or stated otherwise, that the defendant acted
upon an unreasonable expectation that his conduct would remain secret."
Commonwealth v. Nicholas,
The Commonwealth met its burden. The path was
off the rest area which, while open to the public, had no bathrooms. It was,
thus, foreseeable that travelers would relieve themselves in the nearby area,
an occurrence to which the trooper testified. The path was well worn and
without vegetation, a sure sign of use. The defendant was readily visible and
was, in fact, observed nearly simultaneously by four unrelated individuals,
including Trooper O'Leary.
Nicholas does not compel a different result. In
that case, the path followed by the officer began at a closed truck weigh
station. No one, other than the officer, saw Nicholas and another man engaged
in a sex act approximately one hundred feet into the woods. There was no
evidence that travelers utilized that area or that the defendant would have
been visible to them.
In the case at bar, unlike in Nicholas, the evidence would not require a fact
finder "to employ impermissible speculation to conclude that the defendant
chose a place for his sexual conduct where the likelihood of his being observed
was reasonably foreseeable."
Abandonment. General Laws c. 119, § 39, provides, in relevant part, that:
"Whoever abandons an infant under the age of ten within or without any
building . . . shall be punished . . .
." G. L. c. 119, § 39. The term "abandons" is not defined.
The defendant challenges his conviction on this count on three grounds: (1)
that the statute was void for vagueness[7];
(2) that the judge improperly instructed the
jury; and (3) that the evidence was insufficient for a conviction.
The judge, utilizing a definition in Black's
Law Dictionary, (6th ed. 1990), told the jury, in relevant part, "I note,
and for the record, define for you under Black's Law Dictionary, the term
abandonment as, desertion or willful forsaking, forgoing parental duties."
This definition was inadequate. Black's Law Dictionary (7th ed. 1999), defines
abandonment, in part, as "[t]he act of leaving a spouse or child willfully
and without an intent to return." Under G. L. c. 210, § 3, dealing
with termination of parental rights, the term has been further honed to mean
"being left without any provision for
support, and without any person responsible to maintain care, custody and
control because the whereabouts of the person responsible is unknown and
reasonable efforts to locate such person have been unsuccessful. A brief and
temporary absence from the home, without the intent to abandon the child, shall
not constitute abandonment."
Regardless of the definition utilized, the
absence, at a minimum, must be more than brief and temporary.[8] Under the definition used by the
judge, and urged upon us by the Commonwealth, anyone using the rest area for
the purpose of going to the bathroom, and leaving the child unattended in a
motor vehicle, would be guilty of abandonment. So too would a parent who leaves
a child unattended in a car while he or she runs into a post office to mail a
letter.
If this activity, albeit ill-advised, were
meant to be criminalized, the Legislature could have written a more extensive
child endangerment statute.[9]
Compare 720 Ill. Comp. Stat. Ann. 5/12-21.6 (b) (West 2002) ("There is a
rebuttable presumption that a person committed the offense [endangering the
life or health of a child] if he or she left a child 6 years of age or younger
unattended in a motor vehicle for more than 10 minutes"). That the actions
of the defendant were foolish and a lapse of judgment, as DSS observed, is
self-evident. To equate abandonment with poor judgment, however, is a leap we
are not prepared to take. The defendant left his daughter for an undetermined
amount of time, traveling a relatively short distance away. There was no
indication that he did not have the intention to return shortly; indeed the
evidence was to the contrary.[10]
This cannot form the basis for a criminal conviction of abandonment.
The lewd, wanton and lascivious conduct conviction is affirmed. The abandonment
of an infant under the age of ten conviction is reversed.
So ordered.
FOOTNOTES:
[1] The jury
also returned verdicts of not guilty of open and gross lewdness G. L. c. 272, §
16, and disorderly conduct, G. L. c. 272, § 53.
[2] The
defendant raised the following issues: (a) the Commonwealth failed to introduce
evidence that the act was public in nature or done to offend other people; (b)
the Commonwealth failed to introduce any evidence that the defendant abandoned
an infant under ten; (c) the criminal abandonment statute is void for
vagueness; and (d) the judge's charge to the jury on the definition of
abandonment was reversible error.
[3] The
defendant testified that he and his daughter were driving to
[4] James
Kostka testified, for the defendant, that he was taking a leisurely walk on the
paths and came upon the defendant, who had his penis in his hand and his pants
at his thighs. Another man was standing there. He did not see the defendant
urinating or masturbating. It struck him as odd, so he paused, but was
continuing on when he heard O'Leary tell him to stop.
[5] The
defendant's argument that there
was no proof that anyone was offended, citing this element, falls short. The element is written in the
alternative. The Commonwealth
was required to prove either sexual gratification/arousal or public offense.
[6] Even if
we were to consider the two men observing the defendant as noncriminal
participants to a criminal act, there would still be sufficient evidence to
establish the public nature of the act in the form of its location and the
observations of the trooper and the single male who was leaving the area.
[7] "A
void for vagueness challenge is a facial challenge that must be raised in a
pretrial motion to dismiss." Commonwealth v. Moses, 436
[8] To
require, on the other hand, the Commonwealth to prove a permanent intent never
to return would place a burden so high as to be nearly unattainable.
[9] The current law, G. L. c. 265, § 13L, reads as follows:
"Whoever wantonly or recklessly engages in conduct that creates a
substantial risk of serious bodily injury or sexual abuse to a
child or wantonly or recklessly fails to take reasonable steps to alleviate
such risk where there is a duty to act shall be punished . . . ."
[10] There
being no objection, the trooper was allowed to answer the following questions:
Q. "It would seem likely that he intended to return to his car?" A.
"Oh, yes." A. "And to his daughter?" A. "Oh,
yes."