Opinion
19-P-1633
11-17-2021
COMMONWEALTH v. Roberto GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, the defendant appeals. He argues that the judge should have precluded the Commonwealth from introducing testimony that after the sexual assault the victim, his granddaughter, became reluctant to visit his home, and that the testimony of the victim's father violated the first complaint doctrine because it described touchings different from those to which the victim testified. We affirm.
Background. Initially, the defendant's case was joined with the prosecution of his son, the victim's uncle, also for indecent assault and battery on the victim. The Commonwealth moved to sever the two cases, and also moved in each case to exclude evidence of the victim's sexual contact with the other defendant as violating the rape shield statute, G. L. c. 233, § 21B. Citing to that statute, the uncle filed a motion to admit at the uncle's trial evidence of the victim's allegations against the defendant. At a motion hearing, the uncle's counsel argued that the evidence was admissible on issues of the victim's bias, motive to lie, and credibility, because the bedrooms of the defendant and the uncle were "right across from each other." Asked if he had anything to add, the defendant's counsel replied, "No, judge. I agree with [the uncle's counsel]." The motion judge allowed the motion to sever, and denied the uncle's motion to admit at his trial evidence of the victim's allegation against the defendant.
On the uncle's appeal from his conviction, a panel of this court concluded that with regard to evidence of the victim's allegations against the defendant in the case now before us, the uncle was entitled to a voir dire of the victim. Commonwealth v. Robertson Gonzalez, 97 Mass. App. Ct. 1118 (2020).
Seven months later, the defendant's case was tried jury-waived before a different judge. Before trial, the prosecutor called to the judge's attention the motion judge's rulings. The trial judge noted that the motion judge had ruled to exclude the content of a text message between a teenage boy and the victim; her parents’ discovery of that text message led to the conversation in which she disclosed the sexual assaults by the defendant and the uncle. As to the Commonwealth's motion to exclude evidence of the victim's allegation about the uncle, the judge asked if it went "hand in hand" with the motion about the text message, and the prosecutor said that it did. This exchange ensued:
THE JUDGE : "So, [defendant's counsel], let me just turn to you on this so I'm clear. Do you intend to offer any other evidence regarding any sexual history of the alleged victim in this case?"
DEFENSE COUNSEL : "No."
THE JUDGE : "It was really just the text message?"
DEFENSE COUNSEL : "No."
The defendant moved in limine to exclude testimony that the victim became reluctant to visit his home, arguing that it "cannot be understood and weighed by the jury" absent evidence that the victim had accused her uncle, who also lived there, of "acts of sexual abuse in approximately the same time frame." The judge denied the motion, noting that "if the proper foundation is laid with questions to the alleged victim and/or her father -- that it was in response to going to see [the defendant] specifically and not just that house generally -- that cures any prejudice ... or misconception that I may have as the trier of fact regarding why she was reluctant, which I would think would otherwise be admissible."
At trial, the victim testified that she used to enjoy spending time with the defendant at his home, where he lived with her step-grandmother and uncle. She visited there almost every week, and slept over there once or twice a month.
On an occasion in the fall of 2014, when the victim was twelve years old, she slept in the defendant's bed. She woke up and discovered that his hand was between her thighs, about "[a] finger or two" away from her vagina. He took her hand and put it between his legs, moving it until it was "[m]aybe a finger or two" away from his genitals. Then he put her fingers in his mouth and sucked on them. After that, the victim began refusing to visit his home, or insisted on bringing a friend with her. Once when she did visit with a friend, the defendant hugged the victim and slid his hand between her legs and forcefully held her vagina outside her clothing. The victim's father noticed that she became reluctant to visit the defendant's home, and when she did go there she would take a friend with her.
Discussion. 1. Victim's reluctance to visit defendant's home. The defendant argues that the judge should have excluded testimony of the victim and her father that after the sexual assault she became reluctant to visit the defendant's home, unless the judge also admitted evidence of her allegation that the uncle had sexually abused her. The defendant maintains that the victim's accusation against the uncle tended to show that her reluctance was to avoid the uncle, not the defendant.
Unlike the uncle, the defendant did not file a written motion seeking admission of rape shield evidence, as required by G. L. c. 233, § 21B. See Commonwealth v. Cortez, 438 Mass. 123, 129 (2002). The defendant argues that he preserved his claim about the admissibility of the victim's allegations about the uncle when, at the hearing before the motion judge, he agreed with the uncle's argument seeking to admit at the uncle's trial evidence of the victim's allegations against the defendant. That argument is unavailing. The uncle's motion sought to admit at his own trial evidence of the victim's allegations against the defendant. That did not preserve any issue as to whether evidence of the victim's allegations against the uncle would be admissible in this case. Cf. Commonwealth v. Santana, 477 Mass. 610, 620 n.7 (2017) (defendant's motion in limine to exclude evidence of tooth mark on duct tape absent expert testimony did not preserve hearsay objection to trooper's testimony about it).
The defendant's motion to preclude testimony about the victim's reluctance to visit his home referred to her allegations that the uncle "committed acts of sexual abuse," but did not cite to the rape shield statute, G. L. c. 233, § 21B, or specify the sexual conduct he sought to introduce. When the trial judge asked if the defendant intended to offer evidence of the victim's sexual history other than the text message, defense counsel said, "No," and when the judge asked if the defendant's concern was "really just the text message," counsel somewhat inexplicably said, "No."
In those circumstances, we review for prejudicial error the judge's admission of testimony about the victim's reluctance to visit the defendant's home, but we review the exclusion of evidence of the victim's sexual abuse by the uncle for a substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016) ("An objection at the motion in limine stage will preserve a defendant's appellate rights only if what is objectionable at trial was specifically the subject of the motion in limine"). Even if we were to review the latter issue for prejudicial error, we would find none.
As to the admission of the testimony of the victim and her father about her reluctance to visit the defendant's home, that was admissible not for its truth but to show the victim's state of mind. See Commonwealth v. Montanez, 439 Mass. 441, 447-448 & n.8 (2003) (testimony of victim and friend about her reluctance to disrupt family by reporting rape admissible for her state of mind). See also Mass. G. Evid. § 801(c) (2021). "Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Commonwealth v. Arana, 453 Mass. 214, 225 (2009). The defendant argues that the father's testimony about the victim's reluctance to visit the defendant's home was "crucial corroboration" for her version of events. We think that overstates what the father said. He testified that the victim used to bring baked goods made by her mother to the defendant's home, but she started not wanting to do so, and the father thought the change was "because she was growing up and ... want[ed] to spend time with her friends." Moreover, testimony about the victim's reluctance to visit was not particularly prejudicial, because the defendant himself testified that his relationship with the victim was "poor" and that when she visited she did not interact with him but only with his wife.
As to the exclusion of evidence of the victim's allegations that the uncle had also sexually abused her, the judge exercised her broad discretion to determine whether its probative value outweighed the prejudicial impact to the victim. See Commonwealth v. Sa, 58 Mass. App. Ct. 420, 423 (2003). See also Mass. G. Evid. § 412(b) (2021). Before the trial judge, the defendant argued that the victim's allegation that the uncle had sexually abused her could have explained her reluctance to visit their home. On appeal, he refines the argument somewhat, arguing that the victim's allegation against the uncle was admissible to show that the victim was biased against the defendant or his family, or had a motive to lie. See Commonwealth v. Harris, 443 Mass. 714, 721 (2005) (victim's past sexual conduct may be admissible if relevant to "bias or motive to fabricate"). See also Commonwealth v. Herrick, 39 Mass. App. Ct. 291, 294 (1995).
We agree with the judge's assessment that, even if the evidence of the uncle's sexual abuse of the victim had been admitted, it would not have made a difference in the judge's assessment as trier of fact as to whether the victim's reluctance to visit pertained to the defendant specifically. The victim testified that when she visited the defendant she would bring a friend so that "nothing would happen," but on one occasion in the friend's presence the defendant hugged her and surreptitiously grabbed her crotch.
For the first time on appeal, the defendant argues that the sexual abuse by the uncle "would also have been relevant to a defense that [the victim] could be confusing the two incidents between [the defendant] and [the uncle]." Absent any evidence in the record that the victim had some reason to confuse the defendant and the uncle, the defendant's claim that she "could be" confusing her interactions with them amounts to no more than "vague hope or mere speculation" (citation omitted). Sa, 58 Mass App. Ct. at 426. Contrast Commonwealth v. Polk, 462 Mass. 23, 37-38 (2012) (based on evidence including adoption records, defense psychologist could opine that victim had dissociative memory disorder and confused prior sexual abuse by uncle and interaction with defendant).
2. First complaint. Next, the defendant argues that the testimony of the victim's father ran afoul of the first complaint doctrine, see Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied, 546 U.S. 1216 (2006), because he described sexual touchings that differed from those to which the victim testified. The defendant did not object to that testimony, and so we review the claim to determine if a substantial risk of a miscarriage of justice arose. See Commonwealth v. Aviles, 461 Mass. 60, 72 (2011).
The first complaint doctrine is not a strict rule of evidence, but rather a "body of governing principles" guiding trial judges on admissibility of testimony about a victim's first disclosure of a sexual assault. Aviles, 461 Mass. at 73. See also Mass. G. Evid. § 413 (2021). The trial judge was in the best position to determine the admissibility of the victim's complaint to her father, and so we review her ruling for an abuse of discretion. See Aviles, supra. Some discrepancy is permitted between a victim's testimony about the sexual assault and that of the first complaint witness relating what the victim said in the disclosure, subject of course to the judge's discretion to exclude evidence for which the potential prejudice outweighs the probative value. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 586-587 & n.6 (2013).
As the first complaint witness, the victim's father testified that the victim disclosed that when she used to visit the defendant's home, he would tell her to sit on his lap and would grab her "chick" and "grab and rub thighs," and on one occasion when she was sleeping with the defendant, he put his hands "in [her] butt, in [her] vagina." The defendant argues that the father's testimony went beyond the scope of proper first complaint evidence because he said that the victim disclosed that the defendant had her "sit on his lap," grabbed her "chick," and put his hands "in" her "butt" or "vagina." We disagree. The defendant could have, but did not, move to strike any testimony of the father that exceeded the scope of the victim's testimony. He also could have, but did not, ask the father on cross-examination to explain what he meant by the word "chick," or to clarify what body parts the victim said the defendant touched. As in Rivera, 83 Mass. App. Ct. at 587, any such discrepancies "would have had no influence or only slight effect" upon the trier of fact.
The defendant misplaces his reliance on fresh complaint cases that predate the revision of the doctrine in King to first complaint. See Commonwealth v. Flebotte, 417 Mass. 348, 350 (1994) ; Commonwealth v. McCaffrey, 36 Mass. App. Ct. 583, 584 (1994) ; Commonwealth v. Powers, 36 Mass. App. Ct. 65, 69-70 (1994). Before King, the judge "was required to exclude testimony of the fresh complaint witness exceeding mere discrepancy and effectively ‘fill[ing] in’ the [victim]’s account." Rivera, 83 Mass. App. Ct. at 586 n.5, quoting King, 445 Mass. at 234-235.
Where the defendant was convicted of a single count of indecent assault and battery on a child, the father's testimony describing multiple touchings and penetration was not unduly prejudicial to the defendant. We are confident that the judge as trier of fact understood and applied the law of first complaint. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008) ("In a jury-waived trial, we presume that the judge was not affected, as a jury might be," by erroneously admitted first complaint evidence).
Judgment affirmed.