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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 
2

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 
3

juvenile first put his hand down her pants, he "put his hand a 

little bit near her butt" and touched her "butt hole" by 

"dragg[ing] his fingers over" it. He allegedly used his fingers 

to touch the victim's vagina, "mov[ing] [his fingers] slightly,"

"rubb[ing] against . . . her vagina," and putting one of his 

fingers inside her vagina "a little bit." The victim said that 

it felt "like a bug [was] inside of her pants." The juvenile

allegedly also asked the victim to rub his leg with her hand, 

but she did not do so. After the alleged assault occurred, the 

victim went home and told her mother what happened.

Detective Mizzoni, who met with the victim and her mother 

at the Gloucester police station after the alleged incident

occurred, was familiar with the abandoned building the victim

described. It had been "vacant for quite a while." The victim

also accurately described to Detective Mizzoni the location of 

the alleged incident as "right across from [the juvenile's] 

house." The victim told Detective Mizzoni that the other boys 

had continued playing in the area where she had been, but that 

they would not have been able to see her in the area where the 

juvenile allegedly took her.

The juvenile told Detective Mizzoni that he and his brother 

were walking to their home on Pleasant Street, at the 

intersection of Pleasant and Cedar Streets, in Gloucester. As 

they neared their house, a friend on his bicycle approached them 
4

and asked the juvenile if he would watch him perform some

bicycle tricks. The juvenile agreed, sitting down against a 

wall of a "somewhat abandoned" building on Cedar Street to watch 

the bicycle tricks. There were other children playing in the 

area, one of whom was the victim.

While the juvenile was watching the performance, the victim 

asked the juvenile if he wanted a piece of candy. He accepted. 

The juvenile continued to watch his friend perform the bicycle 

tricks. He then went home.

2. Procedural history. The grand jury returned an 

indictment for rape, based on the evidence presented to it. The 

Commonwealth then asked the grand jury to consider whether the 

juvenile was a youthful offender. The Commonwealth instructed 

the grand jury that to conclude that the juvenile was a youthful 

offender they had to find these elements: that the juvenile was 

"between fourteen and seventeen years of age at the time of the 

offense, said offense being a felony, said offense involving the 

infliction or threats of infliction of serious bodily harm, or 

said offender previously having been committed to the Department 

of Youth Services." The Commonwealth explained that the 

youthful offender portion of the indictment would be based on 

the testimony the grand jury had already heard because the 

Commonwealth had no additional witnesses to present. 
5

The motion judge allowed the motion to dismiss with a 

margin endorsement setting forth three findings: (1) there was 

no caretaker relationship between the victim and the juvenile, 

and the victim accompanied the juvenile voluntarily; (2) "the

victim's statements that there was 'a little bit' of penetration 

and that [the victim] felt like 'she had a bug in her pants'"

was not "sufficient to establish the charge of rape"; and (3) 

there was not "sufficient evidence of a threat of serious bodily 

harm[,] noting that no such injury was actually sustained." The 

judge made no ruling on the juvenile's argument that the grand 

jury instructions were insufficient.

3. Sufficiency of the evidence before the grand jury. 

Generally, a motion to dismiss cannot be used to inquire into 

the adequacy or competency of the evidence on which an 

indictment is based. Commonwealth v. McCarthy, 385 Mass. 160, 

161-162 (1982). If, however, there has been no evidence 

presented to the grand jury, the validity of the indictment may 

be challenged. Id. at 161-163. When considering a motion to 

dismiss an indictment, the judge must determine whether the 

grand jury heard "sufficient evidence to establish the identity 

of the accused . . . and probable cause to arrest him." Id. at 

163.

a. Rape indictment. At the hearing on the motion to 

dismiss, the defense attorney disavowed an argument in her 
6

memorandum in support of her motion that the evidence was 

insufficient to establish rape and focused instead on the 

evidence concerning the requirements of the youthful offender 

indictment. Nevertheless, the judge included as a reason for 

dismissal that "the victim's statement that there was 'a little 

bit' of penetration and that she felt like 'she had a bug in her 

pants'" was not sufficient to find penetration and was, "in and 

of itself," insufficient "to establish the charge of rape."

This was erroneous as a matter of law, as it is well settled 

that penetration, however slight, of a person's genital opening 

is sufficient. Commonwealth v. Lopez, 433 Mass. 722, 726-727 

(2001).

b. Youthful offender indictment. Where, as here, the 

Commonwealth sought to obtain a youthful offender indictment 

under G. L. c. 119, § 54, in addition to the indictment for 

rape, the Commonwealth was required to offer evidence sufficient 

to establish probable cause to show that "(1) the juvenile was 

between fourteen and seventeen years old at the time of the 

offense; (2) the offense, if committed by an adult, is

punishable by imprisonment in State prison; and (3) the juvenile 

has either previously been committed to the Department of Youth 

Services, or 'the offense involves the infliction or threat of 

serious bodily harm,' or the person committed a violation of

G. L. c. 269, § 10(a), (c), or (d), or § 10E." Commonwealth v. 
7

Washington W., 462 Mass. 204, 209-210 (2012), quoting from G. L. 

c. 119, § 54. Where the evidence is insufficient to establish 

probable cause to find that the requirements of the youthful 

offender statute have been met, a judge may dismiss the 

indictment. See Commonwealth v. Quincy Q., 434 Mass. 859, 863, 

865 (2001). See also Commonwealth v. Mogelinski, 466 Mass. 627,

652-653 (2013) (Gants, J., concurring in part and dissenting in 

part). When making such a determination, the evidence is 

examined in the light most favorable to the Commonwealth. 

Washington W., supra at 210.

In the case at bar, the juvenile focuses exclusively on the 

third element of the youthful offender statute and argues that 

the evidence was insufficient to establish the infliction or 

threat of serious bodily harm.1 Our decisional law has 

considered this particular element in the context of the 

youthful offender statute on a handful of occasions. See, e.g.,

Commonwealth v. Clint C., 430 Mass. 219 (1999); Quincy Q., 

supra; Washington W., supra; Felix F. v. Commonwealth, 471 Mass. 

513 (2015).

2 "[W]here a prosecutor seeks a youthful offender 

 

1 We note that none of the other bases for establishing this 

element is applicable in this case.

2 In Felix F., the juvenile was indicted as a youthful 

offender for possession of heroin with intent to distribute. 

The court held "that the definition of 'threat' in the juvenile 

offender statute requires a communication or declaration, 

explicit or implicit, of an actual threat of physical injury by 
8

indictment relying on 'the infliction or threat of serious 

bodily harm' component of the statute, the conduct constituting 

the offense must involve the infliction or threat of serious 

bodily harm." Quincy Q., supra at 863. See Clint C., supra at 

226. It is necessary to consider the "actual conduct undertaken 

by the defendant, rather than merely the elements of the 

underlying crime, in determining whether an indictment is 

authorized under" the youthful offender statute. Commonwealth

v. Hoshi H., 72 Mass. App. Ct. 18, 19 (2008). 

In Clint C., a fifteen year old juvenile was babysitting 

his six year old niece and put his penis in her mouth, making 

her perform fellatio while she stroked his penis without threats 

or physical injury. Although the underlying charge was 

statutory rape, which contained no requirement of force, threat,

or lack of consent, the Supreme Judicial Court ruled that "the 

invasive nature of the act of penetration created the threat of 

serious bodily harm." Clint C., supra at 226. The court added 

 

the juvenile." Felix F., 471 Mass. at 516. Recognizing that 

the underlying crime in that case does not "involve an explicit 

threat and there is no identifiable victim," id. at 517, the 

court concluded that the threat requirement was not satisfied. 

Id. at 516. Here, the age difference between the juvenile and 

the victim, along with the fact that the juvenile directed her 

away from a public area to a private location where the rape 

occurred, is sufficient to establish an implicit threat of 

serious bodily harm. Id. at 517, citing Washington W., 462 

Mass. at 210.
9

that "[t]he juvenile's position of authority, the age difference 

between the juvenile and the victim, and the vulnerability of 

the victim are sufficient to support a youthful offender

indictment," and vacated the dismissal of the indictment. Ibid.

In Quincy Q., the fifteen or sixteen year old juvenile was 

alleged to have touched the vagina of a young girl and to have 

forced her to touch his penis over a period of two years and on 

at least ten occasions when the girl was between the ages of

three and five, evidence that supported a charge of indecent 

assault and battery.3 The Supreme Judicial Court concluded that 

"the touching involved in this case is not sufficiently invasive 

in nature (as compared to penetration) to create the threat of 

serious bodily harm," and ruled that the motion judge erred in 

denying the juvenile's motion to dismiss the indictment. Quincy 

Q., supra at 863-864. 

In Washington W., the Supreme Judicial Court held that the 

act of the juvenile pushing a similarly aged child to the 

ground, pulling down the child's pants, and entering the child's 

anus with his penis was sufficient evidence of the threat of 

serious bodily harm to support a finding of probable cause

necessary to establish the requirements of the youthful offender 

 

3 Although the juvenile in Quincy Q. was also charged with 

rape, the youthful offender indictment at issue in Quincy Q. was 

related solely to the charge of indecent assault and battery. 

See generally Quincy Q., 434 Mass. at 863-864. 
10

indictment. Washington W., supra at 210.4 The court declined to 

rule generally, however, that penetration "alone, in every 

circumstance, creates a threat of serious bodily harm." Id. at 

210 n.4. 

The facts of this case are closest to those of Clint C. in 

terms of the conduct that allegedly occurred. The evidence 

shows that the fifteen year old juvenile took an eight year old 

child to a secluded area and penetrated her vagina with his 

finger. As in Clint C., supra at 226, "the invasive nature of 

the act of penetration created the threat of serious bodily 

harm," and the age difference between the juvenile and the 

victim and the vulnerability of the victim "are sufficient to 

support a youthful offender indictment."

In addition, the case at bar can be distinguished from the 

facts at issue in Quincy Q., where the youthful offender 

indictment was rejected on the basis that there was no 

penetration, but merely an indecent touching that the court 

found insufficient "to create the threat of serious bodily 

harm." Quincy Q., supra at 863. 

 

4 The court held, however, that the indictment should have 

been dismissed on the unrelated ground of the Commonwealth

having withheld exculpatory evidence from the grand jury.

Washington W., supra at 211-213. 
11

4. Instruction to grand jury on "youthful offender"

indictment. The requirements of G. L. c. 119, § 54, were set 

forth in the indictment at issue here and the indictment was 

read to the grand jury by the prosecutor, including a recitation 

of the three requisite elements. No additional instruction was 

provided to the jury. The juvenile argues that there is no 

reason to believe that the grand jurors understood what they 

were expected to decide in hearing the indictment alone. 

"Generally speaking, the Commonwealth is not required to 

provide legal instructions on the elements of an offense for 

which it seeks an indictment, out of a concern that such a 

requirement 'would add delay and complexity without serving any 

significant purpose.'" Commonwealth v. Rex, 469 Mass. 36, 41 

n.10 (2014), quoting from Commonwealth v. Noble, 429 Mass. 44, 

48 (1999). While decisional law has recognized two limited 

exceptions to this general rule, neither is applicable here. 

See Noble, supra (where grand jury requests legal instruction, 

"prosecutor should have provided the appropriate information");

Commonwealth v. Walczak, 463 Mass. 808, 810 (2012) (where there 

is substantial evidence of mitigating circumstances or defenses 

in murder case where defendant is juvenile, grand jury must be 

instructed on elements of murder and mitigating circumstances 

and defenses). More was not required in this case where the 

grand jury had before them the indictment, which the prosecutor 
12

had read out loud, and which set forth in plain language the 

elements of the youthful offender statute.

Order allowing motion to

 dismiss vacated.