Opinion
19-P-129
02-27-2020
COMMONWEALTH v. Antonio OLAES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a jury trial, of rape of a child, indecent assault and battery on a child under the age of fourteen, open and gross lewdness, and dissemination of matter harmful to minors. On appeal he argues that there was insufficient evidence regarding the work "as a whole" to support the dissemination conviction. Relatedly, he argues that the judge erred in instructing the jury that they could look to the work as described, rather than the work as a whole. Finally, the defendant argues that the judge erred in joining the rape charge. We affirm.
Reserving additional facts for our later discussion, we note here only that the rape charge was based on the defendant's rape of his twelve year old granddaughter in August 2012, and that the other charges occurred between July 1, 2012, and November 15, 2012, and involved the defendant's younger granddaughter. All of the incidents occurred in the defendant's home while the victims were visiting.
General Laws c. 272, § 28, makes it a crime to knowingly disseminate any matter that is harmful to a minor. Section 31 of c. 272 provides that "matter is harmful to minors if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors." The defendant argues that, because the younger victim described only a portion of the movie she saw at the defendant's house, there was insufficient evidence to permit the jury to determine beyond a reasonable doubt whether the film "taken as a whole" was harmful as statutorily defined. We begin by examining the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
During the relevant time period, the younger victim would visit her grandfather, the defendant, at his house. Although she did not want to do so, the defendant would tell her to sleep in his bed where he would lie against her with his chest against her back, his leg over her legs, and his hands on her stomach -- a position colloquially known as "spooning." This made the victim uncomfortable, as did the fact that the defendant often touched the victim's "butt." On one occasion, the defendant exposed his penis, held it in his hand, and asked the victim to shave it. The victim would watch movies at the defendant's house together with him. Some of those movies were "[r]egular" ones, but she also saw movies that she did not like. She saw a "beach movie, pool movie" that depicted girls and boys having a party. The girls were naked, and the victim could see "[t]heir boobs and their front private spots." The girls were kissing each other and touching each other's "private spots." It is a fair inference that the victim used the term "private spot" to refer to a person's genitals, especially given her use of the same phrase in reference to the defendant's penis. The men in the movie were wearing shorts, drinking beer, and saying "they wanted p-u-s-s-y."
It is true, as the defendant argues, that the statute requires an assessment of the work "as a whole." It is also true, as the defendant points out, that the movie was not introduced in evidence. It follows, he argues, that there was insufficient evidence on which the jury could determine whether the movie "as a whole" was harmful to minors as statutorily defined. This argument was rejected in Ferrari v. Commonwealth, 448 Mass. 163, 167 (2007). As stated there, "[a]lthough the Commonwealth did not produce at trial the videotapes that the defendant allegedly had shown to Jane, we disagree with the defendant's assertion that the absence of the videotapes prevented the jury from deciding whether, ‘as a whole,’ the videotapes lacked literary, artistic, political, or scientific value." Id.
The police were unable to locate the videotape.
In the alternative the defendant argues that, even if the entire movie did not necessarily need to be introduced, the victim's description of the portion she saw was too sketchy to permit the jury to determine whether the remainder of the movie lacked "serious literary, artistic, political or scientific value for minors," especially since she did not testify that the characters were engaged in sex. We disagree. To begin with, the jurors could use their common knowledge to understand the phrase to "want[ ] p-u-s-s-y" as referring to wanting sexual intercourse. See Merriam-Webster's Collegiate Dictionary 1012 (11th ed. 2005) (defining "pussy" as slang term for sexual intercourse). Moreover, the victim's testimony established that the movie depicted full frontal nudity with sexual conduct among multiple people simultaneously. Thus, the action and the dialogue of the movie were focused on sexual activities. The victim's testimony was about the "movie"; she did not indicate that her description was limited to a single scene, nor did she state that there were other components to the movie. Instead, she characterized the entire movie as a beach or pool movie, which she described as containing the action and dialogue described above. Even accepting that the victim did not describe the entire movie, nothing required the jury to assume that the undescribed portions of the movie were innocuous, particularly given the content of the part the victim described. In these circumstances, the victim's description of the portion of the movie she saw was sufficient to permit the jury to conclude that the work "taken as a whole," was "harmful to minors," as statutorily defined. See New Palm Gardens, Inc. v. Alcoholic Beverages Control Comm'n, 11 Mass. App. Ct. 785, 793 (1981) ("The inspector's description to the commission was sufficiently complete to give the full flavor of the performance and the commission could properly conclude that the likelihood that the unseen portions had ‘serious literary, artistic, political or scientific value’ was remote").
As defined in pertinent part, "[s]exual conduct" is "human masturbation, sexual intercourse, actual or simulated, normal or perverted, any lewd exhibitions of the genitals, flagellation or torture in the context of a sexual relationship, any lewd touching of the genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex." G. L. c. 272, § 31.
The defendant also argues that the judge erroneously instructed the jury that they could consider solely the portion of the work described, rather than the work as a whole. Given the failure to object, we review to determine "whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). Jury instructions are evaluated as a whole and we interpret them "as would a reasonable juror." Id. Although judges must properly convey the pertinent legal concepts, they are not required to "use particular words." Id.
The trial judge thoroughly and correctly instructed on each element of the dissemination charge. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004) ("The judge properly instructed in accordance with the statutory requirement, more was not required"). However, the defendant takes issue with the judge's insertion of the phrase "or at least the description of the work" in the following portion of the instruction:
"The third requirement that the Commonwealth has to prove that this is harmful material is that a reasonable person would find that taken as a whole, this film had no serious literary, artistic, political or scientific value to minors. In determining this, you should look at the work as a whole, or at least the description of the work; you don't have the work here, and determine whether it adds significantly to our knowledge and learning, whether it shows imagination and skill and execution, whether it attempts to influence public policies and affairs of state, or whether it assists in exploring or discussing scientific knowledge."
Given the judge's references to the requirement that the work be looked at as a whole, we do not read his insertion of the contested phrase as removing an element of the crime. Taken in context, the jury would have understood that they were to look at the portion described to determine whether the work as a whole met the third part of the statutory definition of harmful matter; they would not have understood that they were to disregard the requirement to assess the work as a whole. Moreover, the instruction was consistent with Ferrari, 448 Mass. at 167.
Finally, the defendant argues that the judge abused his discretion in allowing the Commonwealth's motion to join the indictments, because it allowed the jury to consider prior bad acts as propensity evidence and restricted the defendant's right to testify. "Joinder is a matter committed to the sound discretion of the trial judge" and we will not reverse "unless there has been ‘a clear abuse of discretion’ " (citation omitted). Commonwealth v. Vital, 83 Mass. App. Ct. 669, 674-675 (2013). See Commonwealth v. Pillai, 445 Mass. 175, 179-180 (2005). The defendant "bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial" (citation omitted). Commonwealth v. Magri, 462 Mass. 360, 364 (2012). "The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice." Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1979). The judge may consider "the time and place of the charged offenses, ... the presence of factual similarities suggesting a common modus operandi, ... and whether evidence in the trial of one offense would be admissible in the separate trial of another." Magri, supra. "The appropriateness of joinder often turns on whether evidence of the other crimes would be admissible in a separate trial on each indictment." Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). "Offenses are related if the ‘evidence in its totality shows a common scheme and pattern of operation that tends to prove’ each of the complaints" (citation omitted). Commonwealth v. Spray, 467 Mass. 456, 469 (2014). We see no abuse of discretion here. As the judge noted, although the charges involved two separate victims, they were both granddaughters of the defendant. The crimes happened during the same time period and in the same location. There were similar features in the defendant's conduct towards each victim. See Commonwealth v. Zemtsov, 443 Mass. 36, 44 (2004) ("[s]eparate trials are not required merely because offenses occurred on different dates or involved different victims" [citation omitted] ).
Nor has the defendant met his burden of showing compelling prejudice from the joinder. Although the defendant argues that joining the rape of the older victim with the charges concerning the younger one risked causing the jury to use other bad act evidence to prove propensity, the judge instructed the jury to consider the charges as they related to each victim separately. See Commonwealth v. Sullivan, 436 Mass. 799, 805 (2002). "It is not enough for the defendant simply to assert that he wanted to testify about some charges, but not others" (citation omitted). Vital, 83 Mass. App. Ct. at 676. Where, as here, the assertion is made without explanation or elaboration, the defendant does not make a "convincing showing that he had both important testimony to give concerning one count and a strong need to refrain from testifying about the other count[s]" (citation omitted). Id.
Judgments affirmed.