Opinion
No. 12–P–532.
2013-04-22
COMMONWEALTH v. Anibal C. LUCAS.
By the Court (GraSSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions of assault and battery and indecent assault and battery on a person fourteen or over arising from incidents in which he kissed the victim and slapped her buttocks. The defendant argues that (1) the evidence was insufficient, (2) the prosecutor's closing argument was improper, and (3) his trial attorney rendered constitutionally ineffective assistance of counsel. We affirm.
1. Sufficiency of the evidence. There is no merit to the contention that the absence of an in-court identification of the defendant by the victim rendered the Commonwealth's proof insufficient. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), the evidence and reasonable inferences sufficed to establish that the defendant was the individual who kissed the victim and touched her buttocks without her consent. See Commonwealth v. Davila, 17 Mass.App.Ct. 511, 512, 459 N.E.2d 1248 (1984). The victim identified the perpetrator of the sexual assaults against her by name, “Anibal,” and by his connection to Maya K'iche, a relief organization. She knew Anibal well and interacted with him on almost a daily basis at Maya K'iche, where he was the executive director. She described his unwelcome advances, including grabbing her hand, trying to kiss her and then kissing her while telling her that “he was tired of his wife and wanted another body in bed with him.” She also related how, on a later occasion, he touched her buttocks as she attempted to clean his desk and then grabbed his crotch when she expressed anger at his behavior. Adrian Ventura, the president of Maya K'iche and the defendant's superior, identified the defendant in court and testified that he observed the defendant touch the victim with “his hands like this” as she “was standing there arranging books.” Ventura also related that he observed the victim become very angry, red faced, and agitated as a result of the defendant's behavior. 2. The prosecutor's closing. For substantially the reasons set forth at pages twenty-four through thirty of the Commonwealth's brief, we reject the defendant's claim that the prosecutor argued facts not in evidence by suggesting that the defendant had considerable power in the immigrant community and had misused that power to take advantage of the victim. In determining whether an argument was improper, we examine the remarks in the context of the entire argument, the judge's instructions to the jury, and the evidence at trial. See Commonwealth v. Christian, 430 Mass. 552, 564, 722 N.E.2d 416 (2000); Commonwealth v. Miller, 457 Mass. 69, 76–78, 927 N.E.2d 999 (2010). So viewed, nothing in the prosecutor's closing argument amounts to an error that warrants reversal of the defendant's convictions. The evidence amply supported the inference that the defendant misused his authority and stature with Maya K'iche to take advantage of the victim.
The evidence also supported the inference, as argued by the prosecutor, that the defendant possessed greater authority than Ventura. Part of the theory of defense was that Ventura coveted the defendant's position and that the victim (and another woman) had fabricated the charges at Ventura's suggestion that a claim of sexual assault would assist the women in obtaining U–Visas to solve their immigration problems. As part of his closing argument, the prosecutor made a fact-based argument suggesting that Ventura's elimination from the leadership of Maya K'iche following his confrontation with the defendant suggested that the defendant, and not Ventura, was a more powerful force. We discern no error.
The jury found the defendant not guilty of charges against the other alleged victim.
“Arguments based on testimony submitted at trial and its logical conclusions are proper....” Commonwealth v. Colon, 449 Mass. 207, 224–225, 866 N.E.2d 412 (citation omitted), cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007). On the state of the evidence, the inference suggested by the prosecutor was well within the permissible range. See Commonwealth v. White, 452 Mass. 133, 136, 891 N.E.2d 675 (2008) (inference drawn from circumstantial evidence need only be reasonable and possible, not necessary or inescapable); Commonwealth v. Whitman, 453 Mass. 331, 345, 901 N.E.2d 1206 (2009).
3. Ineffective assistance of counsel. “[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight”. Commonwealth v. Peloquin, 437 Mass. 204, 211 n. 7, 770 N.E.2d 440 (2002). For substantially the reasons set forth in the Commonwealth's brief at pages sixteen through twenty-three, and on the record before us, the defendant has failed to establish that his trial attorney rendered ineffective assistance of counsel by failing to research and investigate immigration law as part of his claim that the victim fabricated her claim against the defendant in the hope of obtaining favorable U–Visa treatment. Indeed, from all that appears, defense counsel was able to place before the jury such a motive-based challenge to the victim's credibility without need to substantiate that the alleged assaults by the defendant were of a sufficiently serious nature to provide a basis for a U–Visa application.
Judgments affirmed.