Opinion
No. 12–P–487.
2013-03-15
COMMONWEALTH v. Richard C. MACARUSO.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of three counts of indecent assault and battery on a child under the age of fourteen and one count of enticement of a child under the age of sixteen. On appeal, the defendant argues that the judge erred by refusing his request to include the dates of the offenses on the verdict slips, and that the error was exacerbated by the judge's failure to instruct the jury that they must find that the offenses occurred on the dates set forth in the Commonwealth's bill of particulars. We affirm.
The defendant acknowledged that he did not request an instruction on this point, but excuses his failure on the grounds that any such request would have been futile.
We provide only as much background as is necessary to address the issue raised on appeal. The male victim was sixteen years old at the time of trial. He testified that he was a patron of the defendant's game store, known as FIT Games, beginning in 2005. During the summer of 2006, when the victim was twelve years old, the defendant touched the victim's penis on two separate occasions and on a third occasion forced the victim to touch the defendant's penis. The defendant told the victim not to tell anyone and secured his silence by giving him free items from the store. The defendant also encouraged the victim to go to the store by giving him preferential treatment. The defendant denied the charges and pursued a defense strategy of challenging the victim's credibility. To this end, he presented evidence which, if believed, established that the victim first went to the game store in 2007, and not in 2005 or 2006, as the victim had testified.
The criminal complaint specified that the offenses occurred on August 1, 2006, and September 1, 2006. In its bill of particulars, however, the Commonwealth asserted that each offense occurred between July and December of 2006. In addition, prior to jury empanelment, the Commonwealth amended the complaint to reflect that the offenses occurred between July and December 2006. Thus, prior to the opening statements of counsel, the stated to the jury that the complaint charges the defendant with having committed the offenses “on divers[e] dates between July and December of [20]06.”
At the conclusion of the trial, the defendant requested that the dates of the offenses be included on the verdict slips. The judge declined to do so, noting that the dates of the offenses are not relevant. The judge was correct. As we stated in a recent case in which a similar claim was made, “[t]he time of the offense is not an element of indecent assault and battery [or enticement], so there is no statutory requirement that the Commonwealth allege or prove specific dates or times.” Commonwealth v. Miozza, 67 Mass.App.Ct. 567, 573 (2006).
Judgments affirmed.