Opinion
14-P-1617
01-29-2016
COMMONWEALTH v. GENARO ABREU.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Genaro Abreu, appeals from his conviction of indecent assault and battery on a child under the age of fourteen years old, in violation of Mass. Gen. Laws ch. 265, § 13B. He appeals from his conviction for three reasons. First, the defendant argues there was insufficient evidence to convict him of indecent assault and battery on a child under the age of fourteen years old. Second, the defendant contends his conviction should be reversed because there was a substantial risk of a miscarriage of justice that resulted from the introduction of multiple first complaint testimony. Third, the defendant maintains that the victim's mother should not have been allowed to testify as the first complaint witness because the victim told others about the assault prior to telling her mother.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
On September 1, 2013, around 10:30 P.M., the victim was playing hide and seek in the defendant's backyard. The defendant was outside drinking beers and listening to music while the children played hide and seek. The defendant was the only adult outside at the time that the incident occurred.
At that time, the defendant resided at his adult niece's residence.
The victim attempted to hide behind a pool that was leaning against a fence when it was her turn to hide. The victim's "hide buddy" was already behind the pool. As the victim tried to hide behind the pool, the defendant grabbed her by the arm and pulled her towards him. He held her from behind while he lifted up her shirt and rubbed her stomach and chest. The defendant then attempted to "rub down." The victim told the defendant to take his hands off of her, but he continued to hold her.
The phrase "rub down" was clarified by the prosecutor on redirect when she characterized it, without objection, as the defendant attempting to put his hands down the victim's pants. This characterization was adopted by the victim.
One of the victim's friends, who was close by and witnessed the defendant touching the victim, pulled the victim away from the defendant. The eyewitness and the victim went inside the house to tell an adult what had occurred. The defendant's adult niece was upstairs, so they told one of the teenagers who was downstairs what had happened. A short time later, the victim returned to her home across the street and, while crying, told her mother about the incident. The mother, in turn, told the victim's father what happened. Both parents then went across the street to confront the defendant. The defendant saw the victim's parents approaching and left the scene in his vehicle. The defendant remained away from the house for two weeks before turning himself in to police.
Discussion. I. Insufficient evidence. The defendant argues that there was insufficient evidence to establish that he committed an indecent assault and battery on a child under fourteen years old. On review, we determine "whether the evidence, in its light most favorable to the Commonwealth, . . . is sufficient . . . to permit [any rational trier of fact] to infer the existence of the essential elements of the crime charged." Commonwealth v. Kelley, 370 Mass. 147, 150 (1976) (quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975)). The relevant question on review is whether the evidence permits a jury to find guilt, not whether the evidence requires a finding of guilt. Commonwealth v. Fickling, 434 Mass. 9, 14 (2001).
The defendant does not challenge that the victim was under fourteen years old, only that the Commonwealth failed to establish that he touched the victim in an indecent manner.
Mass. Gen. Laws ch. 265, § 13B, as amended by St. 2008, c. 205, § 1, provides, in pertinent part, "[w]hoever commits an indecent assault and battery on a child under the age of [fourteen] shall be punished by imprisonment in the state prison for not more than [ten] years, or by imprisonment in the house of correction for not more than [two and one-half] years." Although not defined in the statute, indecent assault and battery has been interpreted by our common law to be an "intentional, unprivileged and indecent touching of the victim." Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991). Indecent assault and battery "may consist of an unpermitted touching that society would regard as immodest and improper because of its sexual overtones, such as a touching of the breasts or genitalia." Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 779 (1999). "The test for indecent assault and battery . . . is an objective one." Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314 (1997). "A touching is indecent when, judged by the 'normative standard' of societal mores, it is 'violative of social and behavioral expectations.'" Id. (quoting Commonwealth v. Gallant, 373 Mass. 577, 580-81 (1977)). The offense constitutes "behavior which the common sense of society would regard as immodest, immoral and improper." Mosby, 30 Mass. App. Ct. at 184 (quoting Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 43-44 (1985)). Touching "the breasts, abdomen, buttocks, thighs, and pubic area of a female" has constituted an indecent assault and battery. Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982). The crime of indecent assault and battery on a child turns on the nature of the touching, not the defendant's state of mind, and therefore, does not need to be for the purpose of sexual gratification or arousal to be indecent. Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 300 (1994), S.C., 420 Mass. 508 (1995).
There was sufficient evidence presented to the jury that the defendant touched the victim's abdomen. This included testimony by the victim, as well as corroborative testimony by the eyewitness. Moreover, there was also sufficient evidence presented to the jury that the defendant attempted to touch the victim's genitalia but was stopped by her. However, an attempt to touch or touching of the victim's genitalia is not required for an indecent assault and battery. Specifically, this court has held that intentional, unjustified touching of private areas including the abdomen constitutes an indecent assault and battery. Mosby, 30 Mass. App. Ct. at 184.
We also note that age disparity and use of force are appropriate factors to consider when determining if conduct is indecent. See Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 626 (2004). The defendant was forty-eight years old while the victim was eight years old. Moreover, the defendant used force, grabbing the victim's arm and holding her from behind, to effectuate his rubbing of her abdomen. The defendant continued rubbing the victim even after she told him to stop and he attempted to touch under her waistband. Accordingly, there was sufficient evidence presented for the jury to determine the defendant had committed an indecent assault and battery on a child under the age of fourteen.
II. Multiple complaint testimony. The defendant contends that there was a substantial risk of a miscarriage of justice that resulted from the introduction of multiple complaint testimony. See Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006). Because the defendant failed to object below and raises this challenge for the first time on appeal, we review the challenged testimony to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002). This risk is present when the court has a "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (quotation omitted). To determine if there has been a substantial risk of a miscarriage of justice, this court employs a four-part inquiry: (1) was there error? (2) did the error prejudice the defendant? (3) in the context of the entire trial, did the error materially influence the verdict? and (4) can we infer that counsel's failure to object was not a reasonable tactical decision? Id. at 298.
The defendant maintains that by admitting multiple instances of complaint testimony, the victim's credibility was unfairly bolstered. Under King and its progeny, "the complainant may not . . . testify to the fact that she 'told' others, apart from the first complaint witness, . . . even where the details of the conversation have been omitted." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). Ordinarily, the witnesses are prohibited from stating "whom [the victim] told (in addition to the first complaint witness)," since this "allows fresh complaint testimony through the back door." Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). However, if the defendant tries to challenge the victim's credibility by highlighting inconsistencies in the victim's testimony, it opens the door for the Commonwealth to rebut these negative implications. Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009).
The defendant points to several different instances of multiple complaint testimony that was never objected to. Although we agree that there were some Stuckich-related technical errors, none amounted to a substantial risk of a miscarriage of justice. However, we will discuss each challenged complaint testimony and then examine why it does not rise to the level of a substantial risk of a miscarriage of justice
A. Officer Armano. The defendant argues that the judge impermissibly permitted the Commonwealth to elicit testimony from Officer Armano that the victim reported the assault to him. During the Commonwealth's direct examination, Officer Armano testified that the victim spoke to him about the "reason for responding," described what the victim was wearing and her demeanor, and provided the length of time he spoke with the victim. Although there are times in which a police officer cannot testify about the circumstances giving rise to police involvement in a sexual assault case, "there may indeed be instances when testimony that includes, or implies, the fact that a report was made will be admissible for a legitimate purpose other than to corroborate a complainant's testimony." Commonwealth v. Arana, 453 Mass. at 223-24, 226-27 (2009) (circumstances and timing of police involvement admissible to rebut defendant's theory that complaints were motivated to support civil lawsuit). Moreover, evidence of the complainant's demeanor is permissible not as first complaint evidence but as evidence of the complainant's state of mind or behavior after a crime when it is relevant to an issue that is contested. Id. at 225. Because the defendant argued that he did not rub the victim's stomach, her state of mind shortly after the incident while making the complaint was admissible. See id.
"In Stuckich, we reasoned that the 'description of the investigative process' and the 'fact that the Commonwealth brought its resources to bear on this incident' has 'no relevance to whether the defendant in fact committed the acts charged, and the jury did not need to know how the complaint of abuse evolved into the case before them.'" Commonwealth v. Arana, 453 Mass. 214, 226 (2009) (quoting Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008)).
Even if we assume, without deciding, that this direct examination testimony by Officer Armano is improper complaint evidence, the defendant's strategic use of the testimony eliminated the risk of injustice to him. See Commonwealth v. McCoy, 456 Mass. 838, 851-52 (2010). The defendant, on cross-examination, asked if Officer Armano had testified that the victim stated to him that the defendant put his hands on her stomach and the officer answered affirmatively. The defendant then asked Officer Armano if he saw red marks on the victim or if the victim was taken to the hospital, and the officer, in essence, answered no to both questions. This testimony -- elicited by the defendant himself -- clearly was a tactical decision to discredit the sufficiency of the police investigation. And, in any event, regardless of that use, because there was an independent eyewitness and the case did not turn on the victim's credibility, on all the facts and circumstances, we find no substantial risk of a miscarriage of justice.
Although defense counsel posited the question by stating, "[n]ow did you -- you testified that [the victim] stated that my client allegedly put his hand on her stomach, correct?" and Officer Armano said "[c]orrect," there is no direct testimony on this from Officer Armano.
B. The teenagers. Next, the defendant contends there were three separate violations of admitting complaint testimony when the victim stated she told "one of the teenagers" when she and the eyewitness went inside to tell a grownup. We first clarify that if this was a violation, it would only be one violation, as the testimony is clear that only "one" of the teenagers was told. Furthermore, we are unsure what was told to the teenager, whether it was about the assault or that she was looking for an adult. However, even if we were to assume this was a technical violation of Stuckich and violated the first complaint doctrine, this did not cause a substantial risk of a miscarriage of justice. The purpose of limiting complaint evidence is to limit prejudice caused to the defendant by repetition of the narrative. See King, 445 Mass. at 242-43. "Repetition of the narrative tends to enhance the credibility of the complainant to the prejudice of the defendant." Stuckich, 450 Mass. at 457. To the extent the challenged testimony was a violation of the first complaint doctrine, it did not cause a substantial risk of a miscarriage of justice because there was also a percipient witness who saw the assault and testified that the defendant was touching the victim's "private parts" or "body parts" while her shirt was up.
C. Defendant's niece. The defendant argues that the eyewitness's testimony that the victim reported the assault to the defendant's niece violates the first complaint doctrine. During the eyewitness's direct examination, he stated that "we" told the defendant's niece about the assault. The niece also testified that she did not remember which one of the children had told her about the assault. We discern no violation of the first complaint doctrine by the eyewitness's use of we. King does not limit who a percipient witness can tell of an instance of sexual assault.
On cross-examination, after several questions by the defendant, the eyewitness testified that it was the victim who went upstairs to tell the defendant's niece about what happened. This, as was Officer Armano's testimony on cross-examination, was the defendant's strategic use of the evidence in an attempt to discredit the eyewitness after he had stated that "we" told the niece. There is no substantial risk of a miscarriage of justice here because the defendant's strategic use of the testimony eliminated the risk of injustice to him. See McCoy, 456 Mass. at 851-52.
D. Victim's mother. The defendant next argues that the judge erred in allowing the eyewitness and the victim to testify that they told the victim's mother of the incident. As stated above, King does not limit an eyewitness to an assault from testifying who he told. Also, the victim's mother was designated the first complaint witness. Therefore, the victim's testimony stating that she told her mother of the incident was permissible.
Furthermore, regarding the technical violations of Stuckich that are acknowledged, the strength of the Commonwealth's case is an additional factor to consider when determining if there has been a substantial risk of a miscarriage of justice. See Commonwealth v. Dargon, 457 Mass. 387, 398 (2010). In the present case, the evidence against the defendant was substantial: the victim promptly reported the assault; there was an eyewitness; and the defendant fled the scene and did not return to his home for two weeks. We also note that errors that create a substantial risk of a miscarriage of justice are "extraordinary events and relief is seldom granted." Randolph, 438 Mass. at 297. The errors in admitting multiple complaint testimony, in the context of the entire trial, did not materially influence the verdict. Accordingly, they did not result in a substantial risk of a miscarriage of justice.
III. Victim's mother as first complaint witness. The defendant argues that the judge erred by not conducting a proper voir dire and by designating the victim's mother as the first complaint witness rather than the defendant's niece or one of the teenagers. We must first consider whether the defendant made a proper objection to adequately preserve these issues for appellate review. At the second day of trial, the defendant made a specific objection stating that the defendant's niece should be the first complaint witness instead of the victim's mother. Because this issue was preserved, we will use the prejudicial error standard. However, the defendant raises for the first time on appeal that one of the teenagers should have been designated the first complaint witness. Accordingly, we review this claim to determine "whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Humphries, 465 Mass. 762, 774 (2013).
After the judge articulated his reasons for making the victim's mother (rather than the defendant's niece) the first complaint witness, defense counsel stated: "I'll . . . go along. I'll see what comes out of it, . . . and I'll object as I . . ." It appears from the transcript that counsel's statement was cut off by the judge. Because we discern no error under either standard, we will assume, without deciding, the objection was preserved.
The determination of who is the first complaint witness is a preliminary question of fact for the trial judge. Stuckich, 450 Mass. at 455-56. When feasible, the first person told of the alleged sexual assault should be the first complaint witness. King, 445 Mass. at 243-44. However, the judge has discretion to allow the Commonwealth to substitute another witness as the first complaint witness in limited circumstances. See id. (judge may permit substitution where first person told of assault is unavailable, incompetent, or too young to testify); Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) (judge may permit substitution if victim's disclosure does not constitute a complaint or if victim discloses to someone with obvious bias or motive to minimize victim's remarks); Commonwealth v. Roby, 462 Mass. 398, 408 n.13 (2012) (appropriate to allow first adult to testify when two child victims initially told each other about the defendant's inappropriate touching); Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 421-23 & n.4 (2010) (child's mother substituted as first complaint witness when father fled and could not be located at time of trial). "The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine . . . . Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard." Roby, 462 Mass. at 408 (citing Commonwealth v. Aviles, 461 Mass. at 73)).
The judge did not abuse her discretion when she designated the victim's mother as the substitute first complaint witness. On the first day of trial, the judge, while deciding motions in limine, heard the Commonwealth's argument that the defendant's niece should be the first complaint witness. The judge also heard, from the Commonwealth, that the niece was unsure who told her of the incident. After that, the Commonwealth waived its motion to make the niece the first complaint witness and moved to make the victim's mother the first complaint witness. At that time, the defendant expressly stated that he had no objection.
On the second day of trial, after the testimony of the eyewitness and victim, the judge conducted a voir dire of the defendant's niece and heard the defendant's argument against the victim's mother being made the first complaint witness. During voir dire, outside the presence of the jury, the niece stated she could not remember which child told her. After voir dire, the judge carefully articulated the reasons why the victim's mother should be the first complaint witness and not the niece. Significantly, the judge determined that the niece was unable to recall who, the eyewitness or the victim, told her of the incident. The niece also stated, in voir dire, that the defendant was present when she was told of the incident by either the eyewitness or the victim, and the judge concluded this may have been another reason why the victim would have refrained from telling the niece what had happened.
The judge properly conducted a voir dire to determine the first complaint witness. The defendant never argued that one of the teenagers should have been designated the first complaint witness and the judge was not obligated to bring this up sua sponte. Even if we were to consider this an error, it did not create a substantial risk of a miscarriage of justice. This was not a trial where the conviction hinged on the victim's credibility because there was an independent eyewitness who testified. Contrast Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 170-73 (2011). We do not believe the result of the trial would have been different had one of the teenagers, rather than the victim's mother, been the first complaint witness.
Judgment affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 29, 2016.