Powderly Gets Results
  • Armed Assault to Murder
  • Result: Dismissed
  • Breaking & Entering
  • Result: Not Guilty
  • Unarmed Robbery
  • Result: Dismissed
  • OUI 2nd Offense
  • Result: Not Guilty
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Home  >  Uncategorized  >  Attorney Powderly’s Client….Not Guilty Indecent Assault & Battery (two counts)

Attorney Powderly’s Client….Not Guilty Indecent Assault & Battery (two counts)

After a two day jury trial in Fall River District Court and nearly a full day of deliberations, the jury came back with Not Guilty verdicts for the two charges of Indecent Assault & Battery on a person 14 years or older.  My client, who was about 50 years old, was a recent immigrant who had moved to Fall River to work as a clerk for a convenience store owned by his brother.  Criminal charges were brought against the defendant based on allegations from two 14 year old girls who lived in the neighborhood and frequented the store.   It was alleged the defendant started to give the girls free candy and then eventually began to inappropriate touch and grope the girls.  The defendant was arrested at his store and after being confronted with the allegations by the arresting Fall River police officer, made a statement acknowledging he had touched the girls.  Prior to trial, the Commonwealth made a plea offer to the defendant for a 2 years committed jail sentence.  If the defendant was found guilty after trial, the Commonwealth was going to ask for 2 years committed on each count to run on and after each other.  In addition to a lengthy jail sentence, the defendant would have more then likely been deported upon completion of his period of incarceration.  Prior to trial, I filed a motion to suppress the defendant’s statement that he made to the police upon his arrest.  While not being subject to a custodial interrogation per se when he made the admission, I argued the police action and conduct in how they presented the accusations amounted to the “functional equivalent” of a custodial interrogation. When a person is subjected to custodial interrogation or the functional equivalent, Miranda warnings must be provided.  The motion to suppress was denied and the case proceeded to trial.  I presented a defense of “consent” which was very risky because of the age disparity but the only viable defense available.  Under Massachusetts law, a person can consent to a touching when they reach the age of 14.  Despite the girls having reached the age of consent for this type of touching, the reality is jurors would likely not take kindly to a fifty year old man giving free candy to young barely teenage girls and then groping them.  Because of this reality, I determined I had to address that “moral” repugnance directly in my defense.  My overall theme was that the jury may not find my client admirable or of sound moral judgement, but they are here to determine if the law was broken not if the defendant conduct was immoral.  The law, whether the jurors agreed with it or not, allows a 14 year old to consent to this type of touching.  The theory of my case was that the girls were willing to let the “creepy store clerk” cop a few feels in exchange for the free candy they were being given.  Over the course of the year, the repeated store visits for free candy, and the inevitable groping that went along with it, was obvious to all parties and was therefore consensual.  The defendant was found not guilty on both counts.  As such, he spent no time in jail, he did not have to register as a sex offender and he did not get deported back to a country he fled from.