Opinion
13-P-937
12-05-2014
COMMONWEALTH v. LEE BROWN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Lee Brown, appeals his convictions of enticement of a child, in violation of G. L. c. 265, § 26C, and annoying and accosting a person of the opposite sex with sexually offensive and disorderly acts, in violation of G. L. c. 272, § 53. The defendant contends that (1) evidence of prior bad acts was improperly admitted at trial, (2) the Commonwealth lacked sufficient evidence to demonstrate the requisite elements of enticement, and, (3) his motion to suppress statements made before his arrest was erroneously denied. We affirm, referring to the relevant facts as the jury could have found them.
Discussion. 1. Prior bad acts. Evidence of prior bad acts may not be introduced for purposes of showing the accused's propensity to commit the crime charged; however, such evidence may be admissible to demonstrate "a common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). "[E]vidence of a sexual assault on a person other than the victim is only admissible if it is connected 'in time, place, or other relevant circumstances to the particular sex offense for which the defendant is being tried.'" Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 (1998), quoting from Commonwealth v. King, 387 Mass. 464, 470 (1982). The Commonwealth introduced evidence that five years earlier the defendant had spoken to and fondled an eleven year old girl who, like the eleven year old girl in this case, was also on her way to school in the Dorchester section of Boston. The defendant contends that the prior bad act was too remote in time and was not sufficiently distinct or similar to the charged conduct to warrant admission. The defendant also contends that the probative value of the evidence was substantially outweighed by the undue prejudice it created.
The judge did not abuse his discretion in admitting the testimony. See id. at 821. The fact that five years had elapsed between the prior incident and the charged conduct does not render the evidence inadmissible. After taking into account the defendant's interim eighteen-month incarceration, see Commonwealth v. Kater, 432 Mass. 404, 416 (2000), the incidents occurred approximately three and one-half years apart. This period of time is not so lengthy as to render the incident remote. See Commonwealth v. Helfant, supra at 228 n.13 (evidence of drugging women approximately two and one-half years before charged conduct).
Further, the prior bad act evidence was closely related in place and relevant circumstances. The prior incident involved an indecent assault and battery on an eleven year old girl on her way to school in the Dorchester section of Boston. Here, the defendant approached a young girl of the same age and race on her way to school in the Dorchester section of Boston. In addition to this similarity of circumstance, the defendant handed the girl a note with a reference to her "kissable" lips, thus cementing the nexus between the defendant's "intent at the time of the crime[] charged" and the previous indecent assault. Cf. Commonwealth v. Gollman, 436 Mass. 111, 114 (2002).
The defendant cites Commonwealth v. Brusgulis, 406 Mass. 501, 507 (1990), for the proposition that these characteristics do not demonstrate the requisite "uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents to warrant the admission of evidence of prior bad acts." The emphasis on the unique or distinctive nature of the prior bad acts carries particular significance when the evidence is submitted to prove identity, not intent. As to intent, the note here sufficiently demonstrated a similarity of circumstance with respect to the earlier incident.
Finally, the judge mitigated any prejudicial effects of the prior bad act testimony. The judge conducted a voir dire of the girl involved in the prior incident, limited her testimony accordingly, and gave "the jury careful limiting instructions about the use of this evidence," both at the time the evidence was admitted and in the final charge. Commonwealth v. O'Laughlin, 446 Mass. 188, 209 (2006).
2. Sufficiency. "The crime of child enticement has four elements: (1) 'Anyone who entices,' (2)'a child under the age of 16, or someone he believes to be a child under the age of 16,' (3) 'to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space,' (4)'with the intent that he or another person will violate [one of the statutes enumerated above].'" Commonwealth v. LaPlante, 73 Mass. App. Ct. 199, 202 (2008), quoting from G. L. c. 265, § 26C, inserted by St. 2002, c. 385, § 3. On appeal, the defendant contends that the Commonwealth failed to demonstrate sufficient evidence of the defendant's efforts to "entice" the girl to "enter, exit or remain within any vehicle, dwelling, building, or other outdoor space." Ibid. The defendant contends that his note did not pose an invitation, but rather stated a hypothetical situation.
The statute "defines 'entice' to mean lure, induce, persuade, tempt, incite, solicit, coax, or invite, each of which, according to the commonly accepted meaning of the term, can be accomplished by words (spoken or written) and nothing more." Ibid., quoting from Commonwealth v. Disler, 451 Mass. 216, 222 (2008). The note said "you would only have to wait but for a few minutes." The note set forth sufficient detail to permit the inference that the defendant was extending an invitation to the girl to remain on the corner, an outdoor space. Viewing the facts in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), a jury could reasonably find beyond a reasonable doubt that the corner where the defendant had watched the girl for a little over a year, and handed her the note, was the intended location to which she was invited.
3. Miranda. The defendant objected to the introduction of statements made to the police at the bus stop. He contends that the trial judge erred in concluding that the police conducted a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), rather than a custodial interrogation necessitating Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). The defendant was approached by two plain clothes police officers who stated that a detective wished to speak to him. One officer then took his license and ran a background check. See Commonwealth v. Lyles, 453 Mass. 811, 815 (2009) (a reasonable person would not believe he was free to leave once the police had taken his license). The defendant was questioned by the detective while in the presence of four police officers and two police vehicles. Assuming without deciding that the defendant was in custody, we hold that any error was harmless, as the statements were cumulative of other independent evidence of the defendant's authorship of the note, as well as the defendant's identity as the individual who gave the note to the girl. See Commonwealth v. Perez, 411 Mass. 249, 260-261 (1991).
Judgments affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.