Opinion
No. 11–P–1275.
2013-01-18
COMMONWEALTH v. Lazaro FERNANDEZ (and three companion cases ).
By the Court (COHEN, KATZMANN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants were tried together before a Superior Court jury. Fernandez was convicted of statutory rape of a child in violation of G.L. c. 265, § 23. Cardoza was convicted of child enticement in violation of G.L. c. 265, § 26C, indecent assault and battery in violation of G.L. c. 265, § 13H, and simple assault and battery.
On appeal, both defendants argue that they should have been allowed to introduce evidence of the victim's statements regarding other sexual activity to show that she had a motive to fabricate the allegations against them. Fernandez also argues that the rape statute is impermissibly vague as applied to him, and Cardoza argues that there was insufficient evidence that he enticed the victim. We affirm.
Cardoza was charged with two counts of indecent assault and battery. As to one of those charges, the jury convicted Cardoza of the lesser included offense of simple assault and battery.
The victim was a fourteen year old girl living with her mother, her siblings, and her mother's boyfriend, Cardoza. On the day before Thanksgiving in 2006, Cardoza told the victim to stay home from school because he needed her help with something. When the victim was alone with Cardoza, he asked her if she knew what an orgasm was, and then he fondled and licked her breasts, and touched her clothed vagina. Cardoza also asked the victim to have sex with him (an invitation she rejected), and he exposed his penis to her. Later that morning, Cardoza asked the victim if she needed money, and she said yes. Cardoza then told the victim to call his friend, Fernandez, and ask him for forty dollars.
Cardoza prepared notes for the victim to use during her call with Fernandez, including specific suggestions about how she should ask Fernandez to be her “sugar daddy.” Cardoza also coached the victim to be sexually explicit while she was talking on the telephone with Fernandez. When the call ended and the victim told Cardoza that Fernandez would be coming over, Cardoza left to avoid being at home when Fernandez arrived.
Earlier that morning, the victim had told Cardoza that Fernandez had asked her several months earlier if she needed a “sugar daddy.”
Fernandez arrived at the victim's home about five minutes after the telephone call ended.
After the victim refused his request for oral sex, Fernandez pulled down her shirt and took a picture of her naked breast. Fernandez then lowered the victim's pants and licked her vagina. Fernandez also offered the victim forty dollars to have sex with him, but she declined.
By this time, Cardoza had left.
At trial, both defendants sought to introduce evidence (1) that sperm cells were detected on the underwear that the victim wore on the day Fernandez orally raped her (the sperm evidence), and (2) that the victim lied about a prior rape to deflect blame from herself for her own bad behavior at an after-school program (the prior rape evidence).
According to the defendants, the sperm evidence undermined the victim's credibility because it contradicted her statements to police that she had not had sex (i.e., intercourse) with anyone while wearing the underwear, while the prior rape evidence showed that the victim had a habit of invoking instances of prior sexual assault as an excuse for her own poor judgment.
At the after-school program, the victim used a cellular telephone to photograph herself nude and convey the images to another student. When the victim was questioned after that incident, she said that she acted that way because she had previously been raped.
We conclude that the trial judge did not abuse his discretion in excluding the sperm evidence and the prior rape evidence. See Commonwealth v. Sa, 58 Mass.App.Ct. 420, 422–423 (2003) (defendant must show prejudicial abuse of discretion). With regard to the sperm evidence, the presence of sperm on the victim's underwear does not by itself prove that she lied when she told police that she had not had sex while wearing that underwear. Moreover, even if the sperm evidence did show that the victim's statements to police were false, the evidence would still be inadmissible under the rape shield statute, G.L. c. 233, § 21B, which only permits evidence of a victim's prior sexual conduct where such evidence is clearly relevant to a showing of bias or motive to lie. See Commonwealth v. Joyce, 382 Mass. 222, 230 (1981) (evidence of victim's prior prostitution arrests was clearly relevant to show that victim might have fabricated rape claim to avoid another prostitution arrest). The connection that the defendants seek to draw between one allegedly false statement (about the sperm on her underwear) and the victim's testimony concerning the defendants is far too attenuated to fall within the exception of the rape shield statute.
With regard to the prior rape evidence, it is important to note at the outset that the defendants did not show below, and do not contend here, that the victim's statement about a prior unrelated rape was false. Instead, they argue that the victim used the fact of an earlier rape as an excuse for conduct unrelated to the charges at issue in this case. Even accepting this premise, there is no logical relevance between an earlier true claim of rape (even if used as an excuse) and the defendants' theory that the claims against them were fabricated. See id. at 230 (evidence must at least have “rational tendency” to prove that the victim falsely accused defendant of rape). Moreover, even if the prior rape evidence was marginally relevant, the trial judge acted within his discretion in determining that its probative value was outweighed by its prejudicial effect. See Commonwealth v. Pearce, 427 Mass. 642, 648 (1998).
Fernandez also argues that the rape statute, G.L. c. 265, § 23, is unconstitutionally vague and ambiguous as applied to him. Fernandez failed to make this argument below, and we decline to consider it now. See Commonwealth v. Hendricks, 452 Mass. 97, 98 n. 1 (2008).
Even if we were to consider Fernandez's argument, it would fail under governing law:
“[A] statute is not vague merely because it requires a person to conform his conduct to an imprecise but comprehensible normative standard.... A sufficiently definite warning of criminal culpability may be achieved through judicial application of the statute to the same or similar conduct.”
Commonwealth v. Miozza, 67 Mass.App.Ct. 567, 570 (2006) (citations, quotations, and brackets omitted). Here, the victim testified that Fernandez licked her vagina. At the time of Fernandez's conduct, judicial authority was clear that brief licking of a child's vagina is statutory rape. See, e.g., Commonwealth v. Donlan, 436 Mass. 329, 336 (2002) ( “[T]he element of penetration required for a [forcible statutory] rape conviction is established by evidence that [the defendant] touched or came into contact with the victim's vagina, vulva, or labia”).
Finally, Cardoza argues that the Commonwealth failed to prove child enticement because there was insufficient evidence that (1) he had the requisite intent,
and (2) he did anything to entice the victim to remain in her home. But when viewed in the light most favorable to the Commonwealth, the evidence amply sufficed to permit the jury to find both elements. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). With regard to the element of intent, there was evidence that Cardoza encouraged the victim to call Fernandez to engage him (Fernandez) as her sugar daddy, and that Cardoza coached the victim to respond in sexual terms to Fernandez's questions. These facts are sufficient to show that Cardoza intended that Fernandez would offer to pay the victim for sexual conduct. See Commonwealth v. Bell, 67 Mass.App.Ct. 266, 272 (2006). And with regard to the element of enticement, there was strong circumstantial evidence that Cardoza intended that sexual conduct for a fee would occur in the victim's home. Among other things, Cardoza urged the victim to call Fernandez so she could get money, he knew that Fernandez worked near the victim's home, he knew that the victim was likely to be home alone that afternoon, and he left the victim alone because he did not want to be there when Fernandez arrived. Given these facts, the jury could reasonably infer that Cardoza enticed the victim to stay in her home so that she would be paid by Fernandez for sexual favors.
The jury found Cardoza guilty of child enticement on the basis that he “intended Fernandez would commit” the crime of “sexual conduct for a fee.” The Commonwealth thus had to prove that Cardoza intended that Fernandez would pay, agree to pay, or offer to pay the victim to engage in sexual conduct. See G.L. c. 272, § 53A( a ).
Judgments affirmed.