Opinion
10-P-2207
02-28-2012
COMMONWEALTH v. MILO BRICE.
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
A Norfolk County grand jury returned six indictments charging the defendant with rape of a child in violation of G. L. c. 265, § 22A, and thirty indictments charging him with indecent assault and battery on a child under fourteen years of age in violation of G. L. c. 265, 13B. Both victims were eighteen years old at the time of trial, one a few months older than the other. The victims were cousins who grew up together, living with several members of their extended family in their grandparents' house in the town of Randolph. The defendant, their great uncle, lived in a room in the basement of the house.
After a jury trial in the Superior Court, the defendant was convicted of two counts of rape of a child against the younger victim, and all thirty counts of indecent assault and battery on a child against the older victim.
In his appeal, the defendant argues that the evidence was insufficient to support the convictions; a Commonwealth rebuttal witness was allowed to testify to first complaint evidence in violation of Commonwealth v. King, 445 Mass. 217 (2005); the judge improperly limited the defendant's right to cross-examine a prosecution witness on the subject of bias; the judge denied the defendant's right to compulsory process; and the example used by the judge to illustrate the concept of circumstantial evidence lowered the prosecution's burden of proof. For the following reasons, we affirm the convictions.
1. Sufficiency of the evidence. On a claim of insufficiency of the evidence, we review the evidence under the familiar Latimore test. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Indecent assault and battery charges. The defendant claims there is insufficient evidence to support the charges that thirty criminal acts were committed against the older victim or that each of the five alleged acts of indecent assault and battery occurred once in each of the six years as charged in the indictments. He notes that almost all of the older victim's testimony describes general conduct rather than specific acts that happened at a specific time. Therefore, he argues, no rational trier of facts could have found the essential elements for all thirty offenses. We disagree.
The older victim testified that the defendant committed five types of indecent assault and battery on her, and that each type of act was repeated on a regular basis for a period of six years. The acts described were sufficiently separate and distinct to support a finding that they constituted separate crimes. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). Moreover, particular dates or times of the individual offenses are not required to support a conviction for indecent assault and battery of a child under fourteen. See Commonwealth v. King, 387 Mass. 464, 468-469 (1982); Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 573 (2006). There was no error.
b. Rape convictions. The defendant argues that the prosecution did not prove a rape occurred within one of the indictment periods, and thus either (1) that conviction is not supported by sufficient evidence or (2) it is indistinguishable from the other rape conviction and barred by double jeopardy principles. Specifically, he contends that, notwithstanding the prosecutor's best efforts, the victim failed to provide testimony that a rape occurred within the period alleged in indictment five (October 31, 1996, when the victim turned five, through the summer of 1997). In addition, he contends that he was unfairly prejudiced in his preparation of his defense of the case by the lack of specificity of the dates during which the alleged rapes occurred. We are not persuaded.
Although the victim did not testify as to the precise time of the rapes, under Latimore, the evidence was sufficient to permit the jury to find beyond a reasonable doubt that two separate and distinct rapes occurred, and that one occurred after the victim turned five but prior to the summer of 1997, when she moved to Philadelphia. See Commonwealth v. Atkinson, 15 Mass. App. Ct. 200, 203 (1983) (time not a required element of rape of a child by force).
We agree that the lack of specific dates in the indictments for rape presented a challenge for the defense, however, we are not persuaded that the defendant was unduly prejudiced thereby. The defendant could have, but did not, file a motion for a bill of particulars, nor has he shown that he would have presented his defense differently if the precise date had been alleged in the indictments. See Commonwealth v. Miozza, 67 Mass. App. Ct. at 573.
2. Rebuttal testimony. The defendant took the stand in his own defense and claimed that he was evicted from the Randolph home over a dispute about rent and chores. Anthony Brice, in rebuttal, testified that the defendant was evicted after admitting that he abused the victims. The defendant now contends that he was unduly prejudiced by Brice's testimony, which contained details of the victims' description of improper sexual conduct by the defendant. See Commonwealth v. King, 445 Mass. 217 (2005).
Brice testified that prior to the time that he and his mother, Martha Brice, evicted the defendant, Martha Brice confronted the defendant and said '[the victims] said you were touching them inappropriately, showing them your penis, things of that nature.' The judge was not requested to provide a limiting instruction to the jury and she did not give one.
When the defendant first broached the subject of eviction, the judge emphasized that no details of sexual abuse allegations were to be elicited from the witnesses. Later the defense sought information about the details of conversations relating to the defendant's eviction, although the issue of rent had been explored. The details of the victims' complaints of sexual abuse were elicited by the defendant on cross-examination. We discern no abuse of the judge's considerable discretion in allowing the rebuttal testimony. See Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765-766 (2007).
3. Right of cross-examination/bias. Martha Brice testified that the defendant admitted to her that he sexually abused the victims and thereafter she evicted him from the family residence. The defendant now claims that the judge improperly limited his right to elicit, on cross-examination, reasons why she may have fabricated the testimony. Based upon our review of the record, the defendant was given ample opportunity to cross-examine the witness on the issue of bias, and the limitations placed on his right to cross-examine were minimal. See Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995) (no abuse of discretion where testimony not likely to show bias). Compare Commonwealth v. Newman, 69 Mass. App. Ct. 495, 499 (2007) (defendant entitled to reasonable cross-examination). There was no error.
Specifically, the defendant sought to ask the witness whether the defendant paid rent, was behind in his rent, performed chores around the house, or shoveled snow around the house.
4. Compulsory process. There was no abuse of discretion by the judge in denying the defendant's request for the issuance of a warrant for Nicole Polynice, , see Commonwealth v. Drew, 397 Mass. 65, 70 (1986), because, among other reasons, he failed to prove that the prospective witness received actual notice that she was to appear as a witness in the case. See Mass.R.Crim.P. 17(e), 378 Mass. 887 (1979); Commonwealth v. Blazo, 10 Mass. App. Ct. 324, 328 (1980).
The defendant argues that he was denied his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to compel the testimony of Nicole and Stephanie Polynice as character witnesses. At trial, the defendant showed the judge a signed return for a subpoena indicating that the prospective witnesses had been served at their last known address and requested that the judge issue a warrant for Nicole Polynice's appearance at trial. The judge refused the request.
Martha Brice owned a restaurant which, the defendant claimed, she sold under duress. The defendant sought to call Polynice to testify that the defendant worked for the new owners, thereby incurring the wrath of Ms. Brice. The sale of the restaurant occurred in the same month the defendant was evicted.
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5. Circumstantial evidence instruction. Finally, we reject the defendant's argument that the judge's example used to demonstrate the concept of circumstantial evidence had the effect of lowering the prosecution's burden of proof. See Commonwealth v. Viera, 42 Mass. App. Ct. 916, 917 (1997) (any instruction that relieves the state of its burden to prove guilt beyond a reasonable doubt violates a criminal defendant's Federal and State rights).
The circumstantial evidence instruction the judge gave to the jury was correct and proper. The judge is not required to use a particular analogy to illustrate the concept, see Commonwealth v. Torres, 420 Mass. 479, 484-485 (1995), and the illustration used by the judge helped convey the message that inferences must be reasonable and logical, and not speculative. See Commonwealth v. Wallis, 440 Mass. 589, 594-595 (2003).
Judgments affirmed.
By the Court (Graham, Brown, & Meade, JJ.),