NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1034

COMMONWEALTH

vs.

MARK L. GAGLINI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a conviction of indecent assault 

and battery on a person fourteen or over pursuant to G. L. 

c. 265, § 13H. He argues that the Superior Court judge erred by 

(1) denying his motion for a required finding of not guilty, and 

(2) declining to provide a curative jury instruction. We 

affirm.

Background.1 On August 2, 2019, the victim, a sixteen year

old male, took a driving lesson with the defendant as his 

instructor. At the start of the lesson, the defendant got out 

of his vehicle, greeted the victim, and said something to the 

effect of, "I don't want us to get too crazy now." The 

1 We recite the facts in the light most favorable to the 

Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979).
2

defendant's tone made the victim uncomfortable. Before starting 

to drive, the defendant told the victim that rather than use the 

passenger brake pedal, he would either grab the victim's arm or 

touch his leg to correct any driving mistakes. During the 

lesson, the defendant touched the victim over twenty times, near 

his groin area, lasting anywhere from a short tap to ten seconds 

long. The victim stood and showed the jury where the defendant 

touched him and testified that if his penis was on that side, 

the defendant would have touched it. When the victim stated 

that he did not want to ride longer, the defendant tried to hug 

him. Once they arrived near the victim's home, the defendant 

got out of the vehicle with the victim, who again expressed that

he did not want to be hugged. The defendant hugged him anyway.

The victim left the area immediately thereafter and called his 

mother, upset and crying, to report that the defendant had 

touched him on his leg and groin area.

Discussion. 1. Motion for a required finding. The 

defendant alleges that the trial judge erred by denying the 

defendant's motion for a required finding of not guilty because 

the Commonwealth failed to provide sufficient evidence to 

support his conviction for indecent assault and battery on a 

person fourteen or over. We disagree.

When reviewing the denial of a motion for a required 

finding of not guilty, "we consider the evidence introduced at 
3

trial in the light most favorable to the Commonwealth, and 

determine whether a rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt." 

Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "That 

evidence would encompass all the circumstances surrounding the 

touching and include the reasonable inferences that could be 

drawn therefrom." Commonwealth v. Shore, 65 Mass. App. Ct. 430, 

432 (2006).

To prove a conviction of indecent assault and battery on a 

person fourteen or over, the Commonwealth must establish that 

"'the defendant committed an intentional, unprivileged, and 

indecent touching of the victim' without the victim's consent." 

Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020), 

quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018). 

"Indecent assault and battery [on a person fourteen or over] is 

a general intent crime." Id. Thus, the Commonwealth bears the 

burden of proving the absence of consent, but not that the 

defendant intended the act to be without consent. Commonwealth

v. Moran, 439 Mass. 482, 490 (2003).

"A touching is indecent when, judged by the 'normative 

standard' of societal mores, it is 'violative of social and 

behavioral expectations,' in a manner 'which [is] fundamentally 

offensive to contemporary moral values . . . [and] which the 

common sense of society would regard as immodest, immoral and 
4

improper.'" Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625 

(2004), quoting Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 

314-315 (1997). An "intentional, unjustified touching" of 

private areas such as the buttocks, thighs, and pubic area 

constitutes an indecent touching. Commonwealth v. Mosby, 30 

Mass. App. Ct. 181, 184-185 (1991).

Here, a rational juror could infer from the evidence 

presented that the defendant intentionally committed an indecent 

act without consent from the victim. The victim testified that 

the defendant told him the defendant would touch the victim on 

the leg or arm in order to correct his driving mistakes. The 

defendant touched the victim on the leg and groin area over 

twenty times during a forty-five minute lesson and for longer 

than necessary to correct a driving mistake. While the victim 

did not manifestly object to the defendant's touching, "we do 

not require an explicit verbal or physical rebuff to prove lack 

of consent." Shore, 65 Mass. App. Ct. at 433. The victim 

further testified that the defendant, a driving instructor he 

had just met that day, hugged him over his objection. The jury 

were entitled to credit the testimony of the victim, which 

supports the conviction. See Commonwealth v. Lao, 443 Mass. 

770, 779 (2005) ("If, from the evidence, conflicting inferences 

are possible, it is for the jury to determine where the truth 
5

lies, for the weight and credibility of the evidence is wholly 

within their province").

2. Curative jury instruction. The defendant further 

argues that the trial judge erred by failing to provide a 

curative instruction regarding the victim's "emotional 

outburst." Specifically, the defendant takes issue with the 

following portion of the prosecutor's line of questioning of the 

victim:

Q: "Do you remember if you were crying at all [during 

telephone call to mother]?"

A: "(Inaudible.)"

Q: "Sorry, was that a 'yes'?"

A: "Yeah."

Q: "Were you crying?"

A: "(Inaudible.)"

Q: "And I noticed you're shaking today; how do you feel 

today?"

A: "I'm cold."

Q: "And how else do you feel?"

Defense counsel: "Objection."

The judge: "Overruled."

A: "Embarrassed."

Q: "Why do you say that?"

Defense counsel: "Objection."

The judge: "Sustained, sustained."
6

A: "Just let another . . . man touch me like that."

Q: "It's all right. If you want, there are some tissues 

right to your left."

The defendant claims that this exchange created a 

substantial risk of a miscarriage of justice, where the jury 

were not later instructed to disregard emotion in coming to a 

verdict. Although the defendant objected to the victim's 

testimony, he did not request a curative instruction, and thus,

"[o]ur review . . . is limited to determining whether the 

judge's omission created an error and, if so, whether there was

a substantial risk of a miscarriage of justice." Commonwealth

v. Simmarano, 50 Mass. App. Ct. 312, 315 (2000).

Emotional outbursts are not uncommon in criminal trials, 

and we give substantial deference to the judge's effort to 

adequately remedy the potential prejudice. See, e.g., 

Commonwealth v. Martinez, 437 Mass. 84, 89-90 (2002) (trial 

judge's decision to issue curative instruction rather than grant 

mistrial not abuse of discretion); Commonwealth v. Hardy, 431 

Mass. 387, 392 (2000) (trial judge was in best position to 

evaluate all circumstances and actual prejudicial effect;

accordingly, ruling was entitled to substantial deference). 

While curative instructions are "an adequate means to correct 

any error . . . to the defendant," Commonwealth v. Amirault, 404 

Mass. 221, 232 (1989), deference is given to the judge's 
7

decision even in the absence of curative instructions. See, 

e.g., Commonwealth v. Morales, 440 Mass. 536, 548 (2003) (no 

error where judge denied motion for mistrial and did not issue 

curative instruction after noting that jury were not affected by 

emotional outburst). Indeed, generally, trial judges are not 

required to give curative instructions sua sponte. See

Commonwealth v. Qualls, 440 Mass. 576, 584 (2003).

Additionally, any potential prejudice to the defendant from 

the victim's display of emotion (and from the prosecutor's 

related appeal to the jury's emotion during his closing) was 

remedied when the judge told the jurors that they "must be 

completely fair and impartial . . .[,] not swayed by prejudice, 

[or] by sympathy" and that they had to decide "whether to 

believe a witness and how much importance to give a witness's

testimony" by considering the evidence as a whole. Indeed, the 

judge gave a robust and detailed instruction to the jury on how 
8

to appropriately weigh the testimony before them. This 

instruction was sufficient to cure any error.

Judgment affirmed.

By the Court (Neyman, Henry & 

Ditkoff, JJ.2),

Assistant Clerk

Entered: April 22, 2024.

2 The panelists are listed in order of seniority.