Opinion
No. 14–P–1876.
05-09-2016
COMMONWEALTH v. John J. NIGRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of two counts of indecent assault and battery. G.L. c. 265, § 13H. On appeal, he argues that (1) his cross-examination was incorrectly curtailed, (2) the erroneous admission of a photograph of the victim created a substantial risk of a miscarriage of justice, (3) the judge erred in declining to give a lesser included offense instruction, and (4) his convictions were duplicative and he was entitled to a separate and distinct act instruction. We agree that the defendant was entitled to an instruction on the lesser included offense of assault and battery with respect to the charge based on touching the victim's upper thigh. Therefore, we reverse the judgment of conviction on that count.
In light of this conclusion, we need not, and do not, consider the defendant's arguments that the convictions were duplicative and that he was entitled to a separate and distinct acts instruction.
The evidence at trial was that the defendant put his hand inside the front of the victim's pants and touched her vaginal area while he sat next to her on a bench at a commuter rail station in Stoughton. There was testimony that during this episode the defendant briefly removed his hand from the victim's pants and touched the “top of the thigh area” outside the victim's pants to move her leg outward. The victim was badly injured sometime prior to, and severely inebriated at the time of, the incident. The defense was consent.
The defendant argues that the judge erroneously limited trial counsel's cross-examination of Detective McNamara, whose investigation into the incident included interviewing the victim one and two days later. The defendant contends that trial counsel should have been allowed to elicit from McNamara testimony about what the victim told her (McNamara) during those interviews. We are not persuaded. The victim's out-of-court statements to the investigating detective were hearsay; the defendant sought to elicit them in order to prove the victim's memory of the events. See Commonwealth v. Bins, 465 Mass. 348, 365 (2013) (“The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted” [quotation omitted] ); Mass. G. Evid. § 801 (2016). In addition, the statements did not fit the state of mind exception to the hearsay rule. “ ‘Under the state of mind exception to the hearsay rule an out-of-court statement of a declarant's then existing (i.e., at the time the statement is made) state of mind is admissible if his mental condition is relevant to a material issue in the case’ (emphasis original).” Commonwealth v. Gardner, 30 Mass.App.Ct. 515, 528 (1991), quoting from Custody of Jennifer, 25 Mass.App.Ct. 241, 243 (1988). Nothing in the case turned on the victim's state of mind at the time she made the statements to McNamara, nor does the defendant explain how the victim's state of mind one or two days after the incident was relevant.
The defendant also challenges the admission of a photograph of the victim taken when she was in the hospital. The photograph showed the victim intubated, and the defendant argues that its prejudice outweighed its probative value. “The admissibility of photographic evidence is left to the discretion of the trial judge, and we will overturn the judge's decision only where a defendant is able to bear the heavy burden of demonstrating an abuse of that discretion. [I]f the photographs possess evidential value on a material matter, they are not rendered inadmissible solely because they are gruesome or may have an inflammatory effect on the jury.” Commonwealth v. Winfield, 76 Mass.App.Ct. 716, 725 (2010) (quotations omitted). The photograph was taken within an hour of the incident and showed the victim's condition, which bore on her ability to consent to the touchings—the central issue at trial. The judge did not abuse his discretion in deciding that its prejudice did not outweigh its probative value. See id. at 725–726 (finding no abuse of discretion where photographs of rape victim's burns and bruises probative of, among other things, opportunity).
“A judge is required to charge the jury concerning lesser included offenses if the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense. In determining whether any view of the evidence would support a conviction on a lesser included offense, all reasonable inferences must be resolved in favor of the defendant .” Commonwealth v. Egerton, 396 Mass. 499, 503 (1986) (quotations omitted). “[T]he doctrine of a lesser included offense serves a public purpose: it allows the jury ... to convict of the offense established by the evidence, rather than forcing it to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is clearly guilty of some offense.” Commonwealth v. Walker, 42 Mass.App.Ct. 14, 16 (1997) (quotation omitted). The defendant argues that the judge committed reversible error in declining to instruct on the lesser included offense of assault and battery with respect to the charge based on the touching of the victim's upper thigh. The issue is preserved.
“Assault and battery is a lesser included offense of indecent assault and battery.” Commonwealth v. Morin, 52 Mass.App.Ct. 780, 787 (2001). Distinguishing indecent assault and battery from assault and battery is the element of indecency. Compare G.L. c. 265, § 13H, with G.L. c. 265, § 13A. “A touching is indecent when, judged by the normative standard of societal mores, it is violative of social and behavioral expectations in a manner which [is] fundamentally offensive to contemporary moral values ... [and] which the common sense of society would regard as immodest, immoral and improper.” Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 314–315 (1997) (quotations omitted).
Whether the particular touching in this case was indecent was a question of fact that should have been entrusted to the jury. The evidence here, that the defendant touched the victim's clothed upper thigh, provided a rational basis for acquitting him of indecent assault and battery and convicting him of assault and battery. Contrast id. at 316 (sufficient evidence of indecent assault and battery where “defendant's touching had not merely involved the inner thigh but, because of the proximity of the defendant's fingers to [the victim's] genitals, had actually extended to the ‘genital area,’ the ‘pubic area,’ or the ‘groin’ area, as commonly understood”). Taking all reasonable inferences in favor of the defendant, the jury could have found that, unlike in Lavigne where the victim testified that the touching felt like an “intimate massage,” the touching in this case was “a fleeting ... brush or bump.” Ibid. It was therefore error for the judge to decline to instruct on assault and battery. Furthermore, the defendant preserved this claim when trial counsel requested a lesser included instruction, see Commonwealth v. Arias, 84 Mass.App.Ct. 454, 463 (2013), and we cannot say with fair assurance that the jury's judgment was not substantially swayed by the error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
The judgment of conviction for indecent assault and battery on the charge involving the touching of the victim's upper thigh is reversed, and the verdict is set aside. On the remaining charge, the conviction is affirmed but the matter is remanded for reconsideration of the sentence; the judge may, in his discretion, impose a new sentence.
So ordered.