Opinion
13-P-1760
01-07-2015
COMMONWEALTH v. AGUSTIN GARCIA.
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, Agustin Garcia, appeals from his convictions of rape of a child with force and indecent assault and battery on a child under fourteen years of age. He argues that testimony from his pastor regarding the sexual abuse was privileged and that two of the indictments were vague. We affirm.
1. Background. The victim is the defendant's biological daughter. She testified that in 2004, when she was in the fourth grade, the defendant called her to lie down with him on the living room couch of their Waltham apartment, whereupon he sexually abused her. The victim testified to another incident in which the defendant entered her bed and again sexually abused her. The defendant sexually abused the victim during three additional incidents, each involving kissing or fondling.
On January 24, 2012, a Middlesex grand jury indicted the defendant on two counts of rape of a child and three counts of indecent assault and battery on a child under fourteen. On June 17, 2013, a jury found the defendant guilty of one count of rape of a child and four counts of indecent assault and battery on a child under fourteen years of age.
On the second rape indictment (002), the jury found the defendant guilty of a lesser included offense.
2. Clergy privilege. The defendant argues that the judge erred in allowing testimony from his pastor regarding the defendant's admission that he sexually abused the victim. The evidence was properly admitted, and even if there was error, no prejudice resulted, as the testimony was cumulative.
After the victim complained of sexual abuse, the pastor called the defendant to arrange a meeting. The pastor spoke with the defendant in his office and told him of the accusations. The pastor testified that the defendant admitted "[t]hat he had touched a young girl who had brought these allegations against him." The defendant indicated to the pastor that the girl in question was his daughter. The pastor also testified that the defendant admitted to touching the victim's breasts.
Whether communications made to a member of the clergy are privileged under G. L. c. 233, § 20A, is a question of law, and the analysis involves a factual determination by the judge of a defendant's intent in making the communication. Commonwealth v. Kebreau, 454 Mass. 287, 303 (2009). "We are to strictly construe the priest-penitent privilege and to apply it only to disclosures made when a defendant seeks religious or spiritual guidance." Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673 (2013).
Here, the judge could reasonably find that the privilege did not apply because the defendant failed to meet his burden of proving that his intent was to receive spiritual counseling. See Commonwealth v. Kebreau, 454 Mass. 287. The pastor testified in a pretrial hearing, and the judge found a "lack of any indication to the pastor that the defendant was looking for spiritual advice." See Commonwealth v. Vital, 83 Mass. App. Ct. at 673. Even if we were to agree that the testimony was privileged, erroneously admitted evidence is not prejudicial if the evidence is "merely cumulative" of properly admitted evidence. Commonwealth v. Galicia, 447 Mass. 737, 748 (2006). Here, the pastor's testimony was cumulative of that of the defendant's wife, who testified earlier at trial that the defendant admitted to sexual abuse.
The defendant's wife testified: "I asked him what had happened, and he told me that nothing, that some time ago when he was drunk he had touched her," in reference to the victim.
3. Insufficiency of indictments. The defendant argues that his renewed motion seeking to dismiss indictments 002 (rape) and 005 (touching of breasts) was improperly denied because those indictments use the phrase "on diverse dates" and do not specify which factual allegations supported each indictment.
"Article 12 [of the Massachusetts Declaration of Rights] requires that no one may be convicted of a crime punishable by a term in the State prison without first being indicted for that crime by a grand jury." Commonwealth v. Barbosa, 421 Mass. 547, 549 (1995). An indictment is sufficient if it alleges that a defendant committed continuing offenses during a certain period of time. G. L. c. 277, § 32. Upon an indictment alleging criminal conduct on diverse dates during a specified period, evidence of separate incidents may be offered to a jury whereby any one of the incidents may support a conviction, so long as the verdict is unanimous regarding the particular incident and the judge delivers a specific unanimity instruction. Commonwealth v. Conefrey, 420 Mass. 508, 508-513 (1995).
General Laws c. 277, § 32, states:
"An allegation that a crime was committed or that certain acts were done during a certain period of time next before the finding of the indictment shall be a sufficient allegation that the crime alleged was committed or that the acts alleged were done on divers days and times within that period [emphasis added]."
Here, the grand jury heard testimony regarding multiple incidents of rape, and alleged in a single indictment (002) that the defendant committed this crime on diverse dates from 2004 to 2007. The grand jury also heard testimony regarding multiple incidents of touching the victim's breasts, and returned a similar indictment (005) alleging the crime on diverse dates. Both indictments were sufficient because both alleged that the defendant committed continuing offenses during a certain period of time. See G. L. c. 277, § 32. The indictments worked in the defendant's favor because each consolidated multiple criminal acts into one count, which exposed the defendant to fewer charges. Furthermore, the judge issued a specific unanimity instruction to the jury that they must be unanimous on each indictment that the defendant committed the crime alleged, beyond a reasonable doubt, on at least one occasion. The indictments were sufficient to support the defendant's convictions. See Commonwealth v. Conefrey, 420 Mass. at 513.
The judge instructed the jury: "[W]hat I'm about to say applies to all five indictments. You may find the defendant guilty only if you unanimously agree that the Commonwealth has proved beyond a reasonable doubt that the defendant committed the offense on at least one specific occasion. . . . [A]s you separately consider each indictment, you must be unanimously agreed that the Commonwealth has proved that the defendant committed the alleged offense on at least one specific occasion between September 1, 2004 and May 31, 2007."
For these reasons and for substantially those in the brief of the Commonwealth, we affirm.
So ordered.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 7, 2015.