Opinion
11-P-1425
12-06-2012
COMMONWEALTH v. DURWARD FARRAR.
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, Durward Farrar, was convicted of indecent assault and battery on a child under fourteen, subsequent offense. G. L. c. 265, § 13B, as in effect prior to St. 2008, c. 205, § 1.
The events underlying the current indictment took place on or about June 26, 2005.
On appeal, he claims (1) insufficiency of the evidence, (2) error in the closing argument, and (3) erroneous treatment of his prior conviction in another State as a prior offense.
Sufficiency. The test for indecent assault and battery is an objective one that is bounded by contemporary moral values. 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,' in a manner 'which [is] fundamentally offensive to contemporary moral values . . . [and] which the common sense of society would regard as immodest, immoral and improper" (citations omitted). Id. at 314- 315. As such, 'we have held that the 'intentional, unjustified touching of private areas such as 'the . . . buttocks . . .'' is 'indecent' as contemplated by the statute.' Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 571 (2006), quoting from Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184-185 (1991). The defendant claims that the Commonwealth failed to introduce sufficient evidence to convict him. We disagree. Under the governing standard, Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), viewing the totality of the evidence in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to prove the elements of indecent assault and battery.
The victim was nine years old. The defendant was her mother's landlord and boyfriend. The victim and her sisters would visit the mother's apartment. While on those visits the defendant would give the victim 'back rubs' underneath and over her shirt. At the time of the incident, the defendant and the mother picked up just the victim and took her on an unplanned camping trip. On the day of the incident, the mother left the camping site after she argued with the defendant. The victim went inside the tent where she sat on an air mattress. The defendant went inside the tent behind her and firmly grabbed her buttocks. After a few seconds the defendant left without saying anything to the victim. The victim walked out of the tent and noticed her mother returning.
This evidence was sufficient to permit the jury to find that the defendant intentionally and unjustifiably touched the victim's private area. It was not necessary for the defendant to make any sexual overtures at the time he was assaulting the victim for the jury to find that the Commonwealth had met all of the elements necessary for indecent assault and battery.
Closing argument. The defendant's argument, raised for the first time on appeal, that the inference the prosecutor asked the jury to draw (that in giving her back rubs the defendant was 'priming' the victim) was improper, is without merit. The defendant objected when the prosecutor attempted to introduce the back rubs in evidence, stating that they constituted prior bad acts. The judge ruled that the prosecutor was allowed to get into the nature of the relationship insofar as it suggested an inappropriate intimacy with the alleged victim. We agree.
Evidence of criminal and noncriminal behavior may not be admitted to prove the propensity of the accused to commit the indicted offense but it is admissible for other relevant probative purposes. See Mass. G. Evid. § 404(b) (2012); Commonwealth v. Martino, 412 Mass. 267, 280 (1992). Such relevance questions are 'entrusted to the trial judge's discretion and will not be disturbed except for palpable error.' Commonwealth v. Roberts, 433 Mass. 45, 51 (2000), quoting from Commonwealth v. Wilson, 427 Mass. 336, 349 (1998).
Here, the judge engaged in an appropriate analysis, allowing both parties to assert their positions. The judge instructed the prosecutor to focus on the defendant's relationship with the victim and to lead the witness to ensure that mention was not made of the defendant's relationship with the victim's sisters. Such evidence is relevant to show the entire relationship between the victim and the defendant. Commonwealth v. Martino, 412 Mass. at 281.
The defendant's other contention, that if the back rubs were going to be introduced, they necessitated an expert's opinion, is also without merit. Given the surrounding circumstances, there is no basis to conclude that the jury needed an expert's opinion to enable them to consider the impropriety of an adult male giving a young girl back rubs.
Subsequent offense. The defendant asserts that the Rhode Island statute under which he was previously convicted is not legally equivalent to G. L. c. 265, § 13B, as the latter requires that the victim be under fourteen while the Rhode Island statute requires that the victim be fourteen or under. As such, the defendant asserts that the Rhode Island statute lacks an essential element that the victim be under the age of fourteen. We disagree.
The operative language of G. L. c. 265, § 13B, enhanced punishment where a defendant had previously committed 'such offense.' The requirement that a prior adjudication be for 'such offense' or of a 'like' offense or violation is not a requirement that it be identical. See Commonwealth v. Durakowski, 58 Mass. App. Ct. 92, 97 (2003); Commonwealth v. Smith, 58 Mass. App. Ct. 166, 172-173 (2003); Commonwealth v. Becker, 71 Mass. App. Ct. 81, 86-87 (2008). The important consideration remains whether 'the essence of the two crimes was the same.' Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010). Despite the slight age differential, the statutes here share the same essence.
For these reasons as well as substantially those stated in the brief of the Commonwealth, the judgment is affirmed.
Judgment affirmed.
By the Court (Kantrowitz, Berry & Grainger, JJ.),