Opinion
16-P-398
02-23-2017
COMMONWEALTH v. Jean Edner CHARLES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of aggravated statutory rape of a child, G. L. c. 265, § 23A(b ), and rape of a child by force, G. L. c. 265, § 22A, by a jury in the Superior Court. He appeals asserting ineffective assistance of counsel, insufficiency of the evidence, and duplicative convictions. We affirm.
Sufficiency of the evidence . We review the evidence under the familiar standard of Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979). The defendant argues that discrepancies between the testimony of the victim and the first complaint witness resulted in deterioration of the Commonwealth's case to the point at which the judge was obligated to allow his motion for required findings of not guilty. The first complaint witness testified that the victim reported that a family member had assaulted her sexually, but the witness did not recall the exact words the victim used. The victim testified at trial that she had been raped. It was entirely within the province of the jury to determine whether the two witnesses, or either of them, were credible. The partial, rather than total, corroboration of the victim by the first complaint witness did not require the jury to discredit the victim's account of the crimes with which the defendant was charged. There was no error.
Ineffective assistance . The defendant asserts that trial counsel was ineffective for failing to object to (1) testimony relating to the victim's visit to a physician and (2) the introduction of unredacted medical records. The victim's testimony was that she visited a physician after the rape to ensure that she had been neither impregnated nor infected with sexually transmitted diseases. Records relating to the visit were admitted in evidence after redactions had removed any references by medical personnel concluding that the victim had been raped.
The defendant raises this issue for the first time on appeal and does so based purely on the trial record. "Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Commonwealth v. Zinser , 446 Mass 807, 810 (2006), quoting from Care & Protection of Stephen , 401 Mass. 144, 150 (1987). On this record we discern no error or abuse of discretion. The testimony was relevant to the timing of the rape and the victim's state of mind. See, e.g., Commonwealth v. Martin , 424 Mass. 301, 305-306 (1997). This was all the more probative where the defendant claimed a right to required findings because the Commonwealth's evidence was insufficient where the first complaint witness did not state that the victim had explicitly reported a rape. Finally we note that even if the evidence had been admitted in error, the test results were negative with respect to impregnation and either negative or silent with respect to various sexually transmitted diseases ; consequently they harmed the defendant inconsequentially, if at all.
Considering both the admissibility of the evidence and the negligible effect that its admission could have had on the verdicts, we conclude that the defendant has failed to demonstrate ineffectiveness under either prong of the familiar test of Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
Duplicative convictions . The defendant claims that his convictions of aggravated statutory rape of a child and rape of a child by force are duplicative. We disagree. The defendant was properly convicted of two crimes arising from the same act, Commonwealth v. Valiere , 437 Mass. 366, 371 (2002), because each crime requires proof of an element that the other does not. Commonwealth v. Vick , 454 Mass. 418, 431 (2009). Statutory rape aggravated by a difference in age in this case required that the victim be between the ages of twelve and sixteen and more than ten years younger than the defendant. G. L. c. 265, § 23A(b ). It did not require compulsion to submit by the use of force and against the victim's will or by threat of bodily injury. Forcible rape required that the victim only be under sixteen years of age and that force or threat be used to make the victim succumb. G. L. c. 265, § 22A.
Judgments affirmed .