MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from his adjudication of delinquency, after a jury trial, by reason of indecent assault and battery on a child under the age of fourteen. He challenges the sufficiency of the evidence that his touching of the victim, an eighteen month old boy, was unjustified and indecent. We affirm.
Background. On the day of the offense, the juvenile was babysitting for the victim, his half-brother, at the victims mothers home. For purposes not relevant here, the mother had previously set up a video camera recording system in her home. It recorded, with sound, the juveniles interaction with the victim.
The recording, admitted as an exhibit and played for the jury, showed the juvenile and the victim lying on a couch and watching television. The juvenile said to the victim that his diaper needed changing. The juvenile removed the dirty diaper, saying “thats nasty,” and then wiped the victims genital area and buttocks with a diaper wipe. He opened a fresh diaper, put the back part of the diaper underneath the victims buttocks, and began to close the front of the diaper, but then stopped. He looked intently at the victims genital area, appeared to put his fingers on the victims penis,
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and moved his fingers up and down five times, as if he were rubbing and tugging at the victims penis. The juvenile then pulled his body back, said “eww ․ thats nasty,” waved his hand back and forth as if dispersing an unpleasant odor, sprinkled powder on the victims genital area, and closed and fastened the diaper. The juvenile and the victim then resumed watching television for the remaining fifteen minutes of the recording.
The mother testified that she had taught the juvenile how to change the victims diaper, and had cautioned the juvenile that day to change any dirty diaper promptly, because the victim had a diaper rash. But she had never told the juvenile that using a bare hand was an appropriate way to clean the victim during a diaper change, nor had she herself ever used her bare hand to wipe the victim.
The juveniles defense, presented through cross-examination and argument, was that he was wiping the victims genitals to make sure the victim was fully clean and to prevent the worsening of the victims diaper rash.
Discussion. We review to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Fact finders are not ‘required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.’ ” Commonwealth v. Russell, 46 Mass. App. Ct. 307, 309 (1999), quoting Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), S.C., 410 Mass. 1005 (1991).
The Commonwealth was required to prove beyond a reasonable doubt that the juvenile “committed an intentional, unprivileged and indecent touching of the victim” (citations omitted). Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 315 (1997).
The juvenile argues that there was insufficient evidence that his touching of the victim was unprivileged or unjustified; he asserts that he was merely diapering the victim. The jury could reasonably have inferred, however, that the juvenile interrupted the diaper-changing process in order to rub the victims penis, without a wipe, and thus in a manner not reasonably incident to the diaper change. “An inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable.” Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
There was also sufficient evidence that the touching was indecent, i.e., “fundamentally offensive to contemporary moral values[,] ․ behavior which the common sense of society would regard as immodest, immoral and improper.” Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43 (1985). The juvenile contends that the touching was merely a part of the diapering process and thus not indecent. But, as stated supra, the jury could have found that the touching was not a part of the diapering process, and thus the jury could have found that the touching met the Perretti definition of indecency.
The juvenile also appears to argue that the Commonwealth was required to prove some specific intent, and that there was no evidence that the juvenile touched the victim with the intent to achieve some malicious or criminal purpose or result. But “[i]ndecent assault and battery is a general intent crime,” Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020), requiring proof only that the touching itself was intentional. The test for whether a touching is indecent “is an objective one” (citation omitted). Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 565 (2002). The juvenile cites no authority, and we know of none, holding that proof of an improper purpose is required.
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Adjudication of delinquency affirmed.
FOOTNOTES
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. In the recording, the victims leg closest to the camera is bent, blocking the view of his genitals and the juveniles hand while between the victims legs.
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. To the extent that the juveniles misconduct here was an isolated instance of teenage curiosity taken too far, the wisdom of the Commonwealths decision to address the misconduct through a delinquency proceeding taken to trial is not for this court. See Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993) (“Article 30 creates a separation of power between the branches of government[,] essentially granting the prosecutor exclusive power to decide whether to prosecute a case,” largely free from judicial review).