Opinion
19-P-183
08-17-2020
COMMONWEALTH v. RENATO C. CAMPOS.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a Superior Court jury trial, the defendant, Renato Campos, was convicted of one count of rape and abuse of a child, aggravated by an age difference of more than ten years, G. L. c. 265, § 23A (b), and two counts of delivering alcohol to a minor, G. L. c. 138, § 34. The victim of the rape was a thirteen year old girl for whom we shall use the pseudonym Ann. The defendant was found not guilty of other charges, including sexual offenses against Ann's thirteen year old friend for whom we shall use the pseudonym Beth. On appeal, the defendant argues that (1) his motion for a required finding of not guilty at the close of the Commonwealth's case should have been partially allowed due to insufficient evidence of a ten-year age difference between himself and Ann, (2) the Commonwealth's opening statement and closing argument were impermissible, and (3) his right to be presumed innocent was violated because Ann's nonconsent was established by a conclusive presumption. We affirm.
More specifically, the defendant was acquitted of two counts of rape and abuse of a child (Beth), aggravated by an age difference of more than ten years; and three counts of indecent assault and battery of a child under fourteen, G. L. c. 265, § 13B, one of which pertained to Ann and two of which pertained to Beth.
Ten-year age difference. At trial, Ann testified to her own age (thirteen) at the time of the sexual assault (January of 2017). The Commonwealth's evidence for the defendant's age came from Detective David Foley, one of the arresting officers. Detective Foley testified that he determined that the defendant was thirty years old when arrested in February of 2017, and he remembered that the defendant's date of birth was May 1, 1986. This information was provided by the defendant at booking and appeared on his booking sheet, which was prepared by the watch commander. Detective Foley was present for at least part of the booking. He further testified that he believed the date of birth was located on some of the documents that the officers had recovered from the defendant's bedroom, including a passport and several forms of Brazilian identification. Detective Foley could not "certainly" say that the date of birth on the booking sheet was the same as that on the passport, but he "believe[d] it was."
"In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt." Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). We consider the evidence and inferences therefrom in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), keeping in mind that "[a]n inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
The defendant argues that Detective Foley's testimony, even in the light most favorable to the Commonwealth, was hearsay (albeit unobjected-to) and thus could not satisfy any rational trier of fact beyond a reasonable doubt. We do not agree. The jury could reasonably infer that the defendant provided accurate information to the watch commander, who reliably recorded it on the booking sheet, and that Detective Foley (whose demeanor the jury could observe) reliably read, remembered, and testified to it. The jury could similarly infer that the date of birth shown on the defendant's passport was accurate and that Detective Foley's testimony regarding the passport was reliable. The defendant cites no authority for the proposition that hearsay evidence must be given reduced weight in a sufficiency analysis. Generally, "[h]earsay, once admitted, may be weighed with the other evidence, and given any evidentiary value which it may possess" (citation omitted). Commonwealth v. Keevan, 400 Mass. 557, 562 (1987).
In his closing argument, defense counsel stated that "I think we can all agree that Det. Foley was credible[,] that everything that he said was true and made sense."
Opening statement and closing argument. The defendant next argues that the prosecutor made numerous improper remarks in her opening statement and closing argument. As there were no objections, we review to determine whether any errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). Here, we see no errors, and thus no risk that justice miscarried.
The defendant points first to the prosecutor's statement that the defendant had violated "an unwritten rule in our society that as adults we have a duty to protect children" and that the defendant had "preyed upon" Ann and Beth. The defendant asserts that this was an impermissible reference to uncharged bad acts. But the defendant fails to explain, and we do not see, what uncharged acts the prosecutor could have been understood as referencing. The defendant thus has not shown that the statement was improper.
The defendant also argues that the prosecutor impermissibly suggested that Ann's and Beth's testimony should be credited merely because they showed up in court to testify. See Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). We reject this characterization of the prosecutor's remarks. Her suggestion in her opening statement that the jury "consider why are people testifying, what is the motivation, what would make somebody come to this court to testify, and why are they here," was not particularized to any witness, whether for the Commonwealth or the defense, and it invited the jury to consider the witnesses' differing motivations, not the mere fact that they testified. The prosecutor returned to this theme in her closing argument, contrasting Ann's and Beth's motives with those of the defense witnesses, and asking the jury to consider what each witness had to gain from testifying.
Moreover, the prosecutor's statement about Ann and Beth being uncomfortable on the stand, talking "in front of [fourteen] people that they have never met in their entire lives," was an effort to explain what she characterized as their "nervous" and "uncomfortable" demeanor. Particularly with regard to Ann, this was a permissible "fair response to an attack on the credibility of a government witness," Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), because it addressed the defendant's argument that Ann "had a difficult time testifying" and that it was "difficult to assess [her] credibility when she's not telling a flowing story." Likewise, there was nothing improper in the prosecutor's argument that the jury should consider what Ann and Beth had to "gain from coming in and telling these stories to perfect strangers," in light of the defendant's lengthy attack, in his closing argument, on Ann's and Beth's motives and credibility. It is not necessarily improper for the Commonwealth to argue that witnesses had no motive to lie, where the defense closing has attacked those witnesses' credibility. See Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). See also Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28, cert. denied, 137 S. Ct. 272 (2016); Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 & n.5 (2008); Mass. G. Evid. § 1113(b)(3)(B), and note at 456 (2020).
This case is unlike Commonwealth v. Garcia, 75 Mass. App. Ct. 901 (2009), on which the defendant relies. The court's focus there was on the prosecutor's impermissible theme of vindication -- that the jury's guilty verdict would "acknowledge and affirm" what the victim complained of. Id. at 901. There is no such suggestion in the prosecutor's argument here, nor did she refer to Ann and Beth as being "re-victimized" by having to come testify. Cf. id. at 902.
The defendant also argues that the prosecutor's repeated use of the word "children" (particularly in her opening statement), along with one reference to Ann and Beth as "little girls," was excessive and meant to appeal to jury sympathy. He argues that the overuse of such terms can improperly sway the emotions of the jury. See Commonwealth v. Santiago, 425 Mass. 491, 494 (1997), S.C., 427 Mass. 298 (1998), and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998). We see no error. The argument was relevant, as the word "child" appears in two of the statutes that the defendant was indicted for violating, see G. L. c. 265, §§ 13B, 23A (b); and Ann's and Beth's ages were elements of all the charged offenses. Moreover, the jury's acquittal of the defendant on five of the six charged sex offenses, see note 1 supra, suggests that they were not emotionally swayed by the prosecutor's argument. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010).
Conclusive presumption of lack of consent. Lastly, the defendant argues that the conclusive presumption of inability to consent in statutory rape cases, see Commonwealth v. Gallant, 373 Mass. 577, 582-583 (1977), conflicts with the constitutional presumption of innocence and its corollary that no element of a criminal offense may be conclusively presumed. See Sandstrom v. Montana, 442 U.S. 510 (1979). The Supreme Judicial Court has held, however, that "lack of consent is not an element of the offense" of statutory rape. Commonwealth v. Wilbur W., 479 Mass. 397, 398 (2018). See Commonwealth v. Knap, 412 Mass. 712, 714 (1992) (only elements are [1] sexual intercourse or unnatural sexual intercourse with [2] child under sixteen years of age); Commonwealth v. Miller, 385 Mass. 521, 522 (1982) (same). Accordingly, Sandstrom is inapplicable. As the defendant recognizes in his reply brief, we are bound by Supreme Judicial Court precedent to reject his argument. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003) ("we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided").
Judgments affirmed.
By the Court (Blake, Sacks & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 17, 2020.