Opinion
No. 15–P–644.
01-04-2017
COMMONWEALTH v. Hector REVERON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in March, 2014, the defendant was convicted of forcible rape of a child and disseminating obscene matter to a minor. He appeals, arguing that the judge improperly admitted certain corroborating evidence relating to the defendant's possession of pornographic images, and that the Commonwealth failed to present sufficient evidence to support his convictions. We affirm.
Originally, there were six charges. At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty on one of the three charges of indecent assault and battery (count five). During jury deliberation, the Commonwealth entered a nolle prosequi on the aggravated statutory rape charge (count one). The defendant was acquitted of the two remaining indecent assault and battery charges (counts three and four).
Background. The jury heard the following evidence. The victim testified that she was born in September of 1998. At some point, the victim's mother sent her and her brother to visit her mother's family in Puerto Rico and, when they returned, the defendant had moved in and was sharing her mother's room; the victim thought the fact that he had moved in after the victim had met him only once was "too fast."
When the victim was in the second grade, her mother began to work at a job that required her to leave for work early in the morning, "probably like four, five in the morning." During that time, the defendant would wake the victim and her brother up each weekday morning and then drop them at school, even though the school was only a block away from their home. In the spring of 2006, when the victim was seven years old, the defendant called her into the bedroom he shared with her mother to look at something on his computer. On the computer she saw a video of a man putting his fingers in and out of the vagina of a nude teenage girl; the girl was bleeding. The victim was shocked by the video and tried to leave the room, but the defendant prevented her from leaving by closing and locking the bedroom door. He pushed the victim on her back onto the bed and pulled down her pants and underwear, then he raped her. During the rape, the victim was trying unsuccessfully to push and kick the defendant off of her; she started screaming and the defendant let her go. The victim did not go to school that day because she did not want to come out of her room.
The victim was usually up at 6:30 A.M. getting ready for school while her brother was still in his bed.
The victim testified that the defendant put his penis in her vagina "just like the guy was fingering the girl in the video" and then "flipped [her] over" and put his penis "[i]nto [her] butt." She testified that it hurt both times. The defendant told her "not to tell anybody or he was going to go to jail and something was going to happen to [her] mom."
After the rape occurred, the victim went directly to her bedroom and moved her bed in front of the door so that it could not be opened; there was no lock on her bedroom door at that time. The next time it happened "he done the same thing. The only thing different is that when [she] sat on, like on the edge of the bed, he would put his penis in [her] face." The defendant did these things repeatedly, four or five days out of the week—"most of the time when [her] mom was working."
The victim also testified that one night the defendant crept into her bedroom while she was sleeping, lifted her nightgown, and took pictures of her; he showed her the pictures on his computer the next day. On other occasions, the defendant showed the victim pictures on his computer that he had taken with his cellular telephone and his spy cameras; the pictures were of neighbors, friends, and other women in tight clothing, focusing on the subjects' buttocks.
The defendant used three types of devices with built-in cameras: (1) a key chain, which looked like a car alarm, (2) a pen, and (3) sunglasses.
In January of 2012, the victim told a counselor at school that the defendant had touched her inappropriately. The counselor called the Lawrence Police. The defendant moved from the victim's home, but, before he did, a search warrant was executed at the family's apartment. The defendant's laptop computer, remote control key starter camera (that contained no memory card), and a pen camera containing a thumb drive were seized; after analysis, no data was found on either of the camera devices. A few days after the first search, the police obtained a second search warrant for the defendant's black iPhone cellular telephone (iPhone); a report of the analysis performed on the iPhone showed approximately 29,000 images of various types.
The victim had spoken to her mother earlier, when she was "probably at the end of third grade."
The police also performed a forensic analysis of the defendant's computer hard drive; "hundreds, if not thousands" of images were found on the hard drive including some images of adult pornography. Police found no photographs or videos "with a nexus to the charges that were noted in the police report," specifically child pornography. There were, however, images found of adult pornography and up-skirt photographs downloaded from the Internet; the bulk of the images on the hard drive were derived from an account user named "Tito" and "located within a folder that indicated that they had been synced or synchronized from an Apple device."
The search conducted by police also consisted of a search for "images that are illegal to possess in and of themselves."
Pornography evidence. The defendant contends, without citation to the record, that "[a]s part of its attempt to corroborate [the victim's] claims, the Commonwealth offered evidence that Mr. Reveron owned a staggering amount of pornography on his phone and computer, and that he owned blank spy cameras. This evidence, however, had little relevance to the charges and carried with them the significant risk that the jury would view [the defendant] as a pervert, making him more likely to have committed the crimes charged."
In fact, the defendant did not object to the admission of the iPhone or to the officer's testimony regarding the number of images stored on the device. The judge sustained his objection to the content of the iPhone images and permitted Lawrence Police Detective Nigohosian to testify only that there were 29,000 images contained on the iPhone. As to the computer, State Police Officer Maloney was permitted to testify that some, not all, of the "hundreds, if not thousands" of photographic images stored on the computer consisted of adult pornography or "upskirting" photographs, but that there were no images of child pornography. None of the videos stored were pornographic. The jurors did not see the images themselves or hear a more detailed description. The defendant did not request limiting instructions during the testimony of the forensic analysts who examined the computer, iPhone, and camera devices.
Maloney described "upskirting photos" as those "taken by the photographer surreptitiously without the knowledge of the target of the photographer."
"Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting from Commonwealth v. Simpson, 434 Mass. 570, 578–579 (2001). See Mass. G. Evid. § 403 (2016). Here, the judge conducted the requisite weighing of evidence to determine probative versus prejudicial value. See Commonwealth v. Rosa, 468 Mass. 231, 239–240 (2014).
We have held that "adult pornography possessed by a defendant is sometimes admissible in cases involving child sexual abuse to corroborate the child victim's testimony that [she] was shown pornography." Commonwealth v. Christie, 89 Mass.App.Ct. 665, 674 (2016), citing Commonwealth v. Halsey, 41 Mass.App.Ct. 200, 203–204 (1996). See Commonwealth v. Jaundoo, 64 Mass.App.Ct. 56, 61 (2005) ("Testimony regarding the pornographic material was also admissible to corroborate the child's testimony"). Corroboration is precisely the reason cited by the judge when admitting evidence that pornography was stored on the defendant's computer hard drive, as the victim testified that the defendant showed her a video on his computer before he raped her. The victim also testified that the defendant had in his possession the spy cameras, which were similarly admissible for the purpose of corroborating her testimony.
During the charge conference, the judge explained the basis for admitting the testimony regarding the pornographic images, stating that "those were admitted in a general manner for a very limited purpose as it relates to corroboration of the alleged victim as to what she saw when she came into the room and as to the observations of these sort of secreted cameras and photo that was allegedly taken of her when she was sleeping and of other females in certain types of clothing." Defense counsel responded, stating that he "would agree with that." The judge gave the proposed limiting instruction at trial, and there were no objections.
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The fact that the defendant was acquitted of the two remaining indecent assault and battery charges also "tends to confirm that the jurors appropriately considered the evidence as it related to each offense, and did not use the [witnesses'] testimony to impute guilt." Commonwealth v. Iguabita, 69 Mass.App.Ct. 295, 301 (2007). See Commonwealth v. Gerhartsreiter, 82 Mass.App.Ct. 500, 508 n. 5 (2012) ("[T]he jury ultimately acquitted the defendant of two of the charges against him, indicating, to some extent, that they focused their attention on the evidence presented in the case and were not swayed by prejudice"). Furthermore, the inflammatory potential of the presence of pornography stored on the defendant's computer was diminished by the fact that only a summary of the number of images present, not the actual images, was submitted to the jury. See Commonwealth v. Coates, 89 Mass.App.Ct. 728, 740 (2016). We are satisfied that the defendant did not meet his burden of showing prejudice and, thus, the evidence was properly admitted. See Commonwealth v. Ruell, 459 Mass. 126, 132–133 (2011).
Sufficiency of evidence. The defendant also argues that the Commonwealth failed to present sufficient evidence to prove that he had the opportunity to commit the crimes charged, contending that the mother's testimony contradicted the victim's testimony about the defendant's opportunity to commit the crimes and thereby deprived the Commonwealth of sufficient evidence. We are not persuaded.
The victim testified that the sexual abuse occurred only when her mother was not home, for the most part in the early mornings before school when her mother was working the early morning shift. Her mother testified that, during that period, she sometimes worked an early morning shift, leaving sometimes at 5 A.M., sometimes at 6 A.M. At another time, for three months, she worked a second shift, beginning at 3 P.M. At still another time, she took a course that began at 8 A.M., and for a period of time she was unemployed. The mother also testified that, when she left home early, the defendant would take her children to school.
It is well established that judging "[t]he weight and credibility of the evidence is the province of the jury." Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). To the degree that there was any contradiction here, the jurors were free to credit the victim's testimony over that of her mother, as the jury may "believe all, some, or none of the testimony of any witness." Commonwealth v. Ortiz, 470 Mass. 163, 167 (2014), quoting from Commonwealth v. Gomes, 459 Mass. 194, 203 (2011). Viewing this evidence in the light most favorable to the Commonwealth, we see sufficient evidence to support the jury's conclusion that the defendant had ample opportunity alone with the victim to rape her. See Commonwealth v. Swan, 73 Mass.App.Ct. 258, 261 (2008).
Judgments affirmed.