Opinion
13-P-1708
06-11-2015
COMMONWEALTH v. RAYMOND CHRISTIAN.
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
A jury convicted the defendant of failing to register as a sex offender in violation of G. L. c. 6, § 178H(a)(1). In this consolidated appeal, the defendant challenges both the conviction and the judge's decision to adopt the Commonwealth's proposed reconstructed trial record. With respect to his conviction, he argues: (1) the Commonwealth failed to prove that he had previously been convicted of indecent assault and battery on a child under fourteen; (2) extraneous information on a docket sheet submitted into evidence was sufficiently prejudicial to warrant a new trial; (3) the judge's instruction concerning the predicate sex offense relieved the Commonwealth of its burden of proof; and (4) the judge erred by permitting the Commonwealth to amend the complaint. Because we conclude the evidence was insufficient to prove beyond a reasonable doubt that the victim of the defendant's previous conviction was under the age of fourteen, we reverse without reaching the defendant's remaining arguments.
Background. The complaint charged the defendant with knowing failure to register as a sex offender, having previously been convicted of indecent assault and battery upon a child under fourteen years of age and subsequently classified as a level two sex offender. Given the defendant's classification level and that indecent assault and battery on a child under fourteen is one of the offenses enumerated in G. L. c. 6, § 178H(a)(1), as amended by St. 2006, c. 139, § 27, the Commonwealth moved to amend the complaint to seek the imposition of community parole supervision for life (CPSL) should he be convicted. That motion was allowed. At trial, the judge properly instructed the jury that the Commonwealth bore the burden of proving that the defendant had previously been convicted of the offense of indecent assault and battery on a child under fourteen. The jury convicted the defendant, and the judge sentenced the defendant to six months in the house of correction and to CPSL.
The CPSL component of the sentence was subsequently vacated.
Discussion. "When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense." Commonwealth v. Bell, 83 Mass. App. Ct. 82, 84 (2013). "In the circumstances of this case, to establish the defendant's guilt of failure to register as a sex offender in violation of G. L. c. 6, § 178H(a), the Commonwealth was required to prove that the defendant (1) had been convicted of a listed Massachusetts 'sex offense' . . . in accordance with G. L. c. 6, § 178C; (2) was a resident of Massachusetts; (3) failed to register in [the town in which he lived]; and (4) failed to do so knowingly." Commonwealth v. Bell, supra, quoting from G. L. c. 6, § 178C.
The Commonwealth introduced a docket sheet from the Gardner division of the District Court Department as the sole evidence of the defendant's predicate sex offense. The docket sheet contains both typed and handwritten entries. In the box entitled "Count/Offense," appears: "265/23/A Rape of Child, Statutory c. 265, § 23," the strike-out having been made by hand. Above this appears the handwritten phrase "4/18/07 [the date of the plea] indecent A&B -- allowed" along with what appears to be the judge's name. The docket sheet does not reveal the age of the defendant's victim, except that one might infer from the original statutory rape charge that the victim was under sixteen. There was no evidence (on the docket sheet or otherwise) that the victim was under fourteen.,
The docket sheet was apparently admitted with two pages partially stuck together with correction fluid. The appellate record contains a complete photocopy of the docket sheet, as well as a copy of the one that is stuck together, and so we are able to know that nothing relevant to this appeal was obscured in the latter.
The Commonwealth argues that any lacuna in the Gardner docket sheet would not have altered the outcome of the trial, because the jury could have inferred from the judge's instructions that the conviction was of indecent assault and battery on a child under fourteen. Instructions are not evidence, however. See, e.g., Commonwealth v. Ortiz, 466 Mass. 475, 485 n.13 (2013).
The Commonwealth argues that the defendant has waived this argument about the sufficiency of the evidence, including the Gardner docket sheet, because at trial all parties "proceeded with the understanding" that the predicate offense was indecent assault and battery on a child under fourteen. The parties did not so stipulate, however. And, indeed, the Commonwealth declined the defendant's offer to stipulate to the predicate offense. As such, the Commonwealth was required to prove each element of the crime beyond a reasonable doubt.
The Commonwealth contends that even if the Gardner docket sheet does not provide sufficient evidence of the specific predicate offense, it unambiguously reflects a conviction for a sex offense. We may assume for the purpose of argument that the Commonwealth is not required to prove the specific predicate offense in every failure to register case. Nonetheless, in this case, in order to seek the additional penalty of CPSL, the Commonwealth was required to allege in the charging document that the defendant has previously been convicted of one of the offenses enumerated in G. L. c. 6, § 178H(a)(1). Commonwealth v. Kateley, 461 Mass. 575, 584 (2012). Indecent assault and battery on a child under fourteen is one of those enumerated offenses. G. L. c. 6, § 178H(a)(1). Indecent assault and battery on a person fourteen or over, however, is not. Ibid. And, accordingly, the Commonwealth specifically charged the defendant with having been previously convicted of indecent assault and battery on a child under fourteen.
Finally, the judge here specifically instructed the jury that they were required to find beyond a reasonable doubt that the defendant had been previously convicted of indecent assault and battery on a child under fourteen. These instructions were the law of the case and, the jury having been so instructed, the verdict cannot stand where there was insufficient evidence of the victim's age -- even if, in other circumstances, the Commonwealth need not prove the specific predicate offense in a failure to register case. See Commonwealth v. Hennessey, 17 Mass. App. Ct. 160, 165 (1983), citing Commonwealth v. Graves, 363 Mass. 863, 868 (1973).
Judgment reversed. Verdict set aside. Judgment for defendant.
By the Court (Cohen, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.