Opinion
14-P-386
12-22-2014
COMMONWEALTH v. ROBERT D. GRISWOLD.
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, Robert D. Griswold, was convicted of numerous crimes. The only one at issue here is a conviction of rape and abuse of a child under G. L. c. 265, § 23. On appeal, the defendant contends that the judge erred in denying his pro se motion pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), because (1) the evidence was insufficient, (2) counsel was ineffective, (3) the judge improperly admitted hearsay statements, and (4) the prosecutor made improper remarks during her opening statement and closing argument. We affirm.
Sufficiency of the evidence. The defendant argues that there was insufficient evidence to convict him of rape of a child because the prosecutor failed to prove, beyond a reasonable doubt, that the victim was under the age of sixteen. We disagree. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence amply established that the victim was under the age of sixteen when he had anal intercourse with the defendant. First, the victim repeatedly testified that he was fifteen years old when he had sex with the defendant. Likewise, two witnesses testified that the defendant, at a time when the victim was under the age of sixteen, bragged about having had sex with the victim on over thirty occasions. Finally, the Commonwealth presented evidence that the defendant tried to persuade a witness to lie about his age and told the witness that the victim "was going to say that [the victim] was [sixteen] and that everything was absolutely fine."
Although it appears that the defendant did not move for a required finding of not guilty on this charge, "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice. . . . Accordingly, we review the sufficiency of evidence issues." Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
Although the victim expressed some uncertainty about his age, "[a]ny uncertainty in the victim's testimony did not render the Commonwealth's evidence legally insufficient." Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 538 (2013). Rather, the victim's uncertainty goes to the weight of the evidence, which is properly left to the jury. See Commonwealth v. Plouffe, 52 Mass. App. Ct. 543, 545 (2001); Commonwealth v. Dumas, supra.
One witness, who was the same age as the victim, testified that he was fourteen years old when the defendant told him that he had had sex with the victim. The victim's brother also testified that the victim was under sixteen years old at the time of the winter sleepovers that the defendant was referring to when he said he had had sex with the victim.
Other arguments. The defendant's remaining claims require little discussion. First, we need not consider the defendant's claim of ineffective assistance because the defendant failed to cite any relevant legal authority to support his argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. White, 60 Mass. App. Ct. 193, 203 n.15 (2003) (argument did not rise to level of adequate appellate argument where defendant failed to cite any legal authority). Moreover, the defendant's claim that the judge improperly admitted hearsay statements is meritless. See Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 78 n.7 (2014) ("Because the contested statement is the statement of a party opponent, it could not be excluded on hearsay grounds"). Finally, we reject the defendant's claim, raised for the first time on appeal, that the prosecutor made improper remarks during her opening statement and closing argument. Contrary to the defendant's claim, none of the prosecutor's remarks was misleading or otherwise improper.
Even were we to assume that the prosecutor's remarks were improper, this claim would still fail because the defendant made no showing that the alleged errors created a substantial risk of a miscarriage of justice.
Order entered August 19, 2013, denying motion for postconviction relief affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 22, 2014.