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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.
Unnatural and Lascivious Act. Lewdness. Child Abandonment.
Complaint received and sworn to in the
Attleboro Division of the District Court Department on
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.”