Commonwealth v. Todd (Lawyers Weekly No. 11-095-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1766 Appeals Court COMMONWEALTH vs. KEITH TODD. No. 13-P-1766. Essex. February 6, 2015. – August 6, 2015. Present: Cypher, Hanlon, & Agnes, JJ. Youthful Offender Act. Grand Jury. Evidence, Grand jury proceedings. Practice, Criminal, Grand jury proceedings, Dismissal. Probable Cause. Rape. Indictment found and returned in the Superior Court Department on February 26, 2013. After transfer to the juvenile session of the Gloucester Division of the District Court Department, a motion to dismiss was heard by Joseph W. Jennings, III, J. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Patricia L. Garin for the juvenile. CYPHER, J. A District Court judge granted a motion by the juvenile, Keith Todd, to dismiss a youthful offender indictment on a charge of rape of a child. The juvenile argued in his motion to dismiss that the evidence presented to the grand jury was insufficient to establish that he committed the crime of rape, specifically that there was insufficient evidence “that the conduct constituting the alleged sexual assault involved the infliction or threat of serious bodily harm” and that the grand jurors were not properly instructed on this element of the youthful offender statute. The Commonwealth appeals, arguing that the Commonwealth presented sufficient evidence to sustain the indictment, where the evidence of the digital penetration, coupled with the circumstances of the penetration, demonstrated that the juvenile’s conduct involved threat of serious bodily harm to the victim to sustain a rape charge under the youthful offender statute. 1. Evidence before the grand jury. Detective Steven Mizzoni of the Gloucester police department presented the Commonwealth’s case to the grand jury. The juvenile was a fifteen year old boy; the victim was an eight year old girl. According to the victim, she had been “playing down the street a few blocks away” from her house with three boys, including her brother. One of the boys was performing bicycle tricks, while the others watched. While the victim was there, the juvenile allegedly directed her away from where the other boys were playing to an area of an abandoned building. Once in this area, the juvenile then allegedly put his hands down the front and back of the victim’s pants. The victim said that when the juvenile first put his hand down her pants, he “put his hand […]