Opinion
21-P-510
06-09-2022
COMMONWEALTH v. KEITH A. REBORI.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The defendant was convicted of one count of assault and battery on a person aged sixty years or older in violation of G. L. c. 265, § 13K (a1/2). He brings this appeal claiming that the evidence was insufficient to support his conviction. We affirm.
We review the defendant's claim of insufficient evidence under the familiar standard articulated in Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), reviewing the record to determine whether there was "enough evidence that could have satisfied a rational trier of fact of each such element [of the crime] beyond a reasonable doubt."
The elements of the offense of which the defendant was convicted are that (1) the victim was a person sixty years of age or older, (2) the defendant touched the victim, (3) the touching was harmful or offensive in the sense of it not being consented to, and (4) the touching was intentional. There is no dispute in the instant matter that the victim was sixty years of age or older.
The Commonwealth's case consisted of the testimony of the victim. As the defendant describes it, the victim's testimony was both internally inconsistent and inconsistent with some of the extrinsic evidence in the case. The victim testified that on February 9, 2018, he boarded a train at the Alewife Red Line Massachusetts Bay Transportation Authority (MBTA) station traveling inbound toward Boston from Cambridge. He testified that he encountered the defendant, who said, "What are you doing on the trolley?," and that the defendant then kicked him in the rear end while wearing shoes or sneakers. He testified that he suffered a bruise but did not seek medical attention. He testified that he exited the train at the Davis Square Red Line station and called 911 and that MBTA police officers met him outside the station. There was, however, no MBTA police report concerning this incident, and no independent evidence that the victim ever spoke to the MBTA police.
The victim testified to speaking to the Cambridge police, but his testimony was inconsistent about when this occurred. First he testified that he went to the police on the day of the incident, and that he had reported an assault by the defendant that same day. He was confronted on cross-examination, however, with a Cambridge police department incident report dated February 10, 2018, the day after the incident. That report states that the victim visited the station on February 9, but to report that the defendant had been harassing him, not to report an assault. According to the report, the victim reported on February 10 that he had been assaulted, but not when he was heading inbound from Alewife. Rather, he reported that he was assaulted while headed toward Alewife. And on cross-examination the victim admitted that he had told the officer on February 10 that the defendant had "hip checked" him, not kicked him. Indeed, he admitted that he never told the officer that the defendant had kicked him.
The victim testified that he sat down upon entering the Red Line car, but when asked how the defendant could have hip-checked him while he was seated, the victim changed his testimony, and said that he had been standing up.
The defendant moved for a required finding of not guilty both at the completion of the Commonwealth's case and at the close of the defendant's case.
The defendant himself testified. He testified that he had not kicked or hip-checked the victim but had brushed up against him when the defendant was on the platform at Alewife station walking towards the Red Line car. The defendant testified that the victim then acted as if he had been assaulted and said he was calling the police.
Discussion. We see no error in the judge's denial of the motions for required finding of not guilty. There was sufficient evidence in the victim's testimony to support the conviction, even though the testimony was contradictory. It is for the finder of fact to determine credibility, and finders of fact are entitled to "believe part of a witness's testimony and reject part or believe all or reject all" so long as they do not "distort or mutilate any integral portion of the testimony to permit them to believe an unfounded hypothesis." Commonwealth v. Perez, 390 Mass. 308, 314 (1983). Given this, and given the fact that a finder of fact could have found the victim credible in his testimony about an unconsented-to touching without distorting or mutilating any integral part of it, there was sufficient evidence at the close of the Commonwealth's case. As the defendant's testimony might be viewed as bolstering the credibility of the victim's testimony, rather than undermining it, there was also sufficient evidence at the close of the defendant's case.
The defendant understandably emphasizes a statement by the judge who said during argument on the renewed motion for a required finding of not guilty, "Counsel we had zero evidence that [the defendant] was even on the train. You totally saw the lack of credibility on the alleged victim until you put [the defendant] on the stand, and now we have him at the train station. So now that just builds up their victim."
The defendant argues that given the judge's expressed view of the victim's credibility prior to the testimony of the defendant, the judge erred in denying the initial motion for a required finding at the close of the Commonwealth's case. The question at the close of the Commonwealth's case, however, was not whether the judge, who happened to sit as the trier of fact in this jury-waived trial, found the victim credible. The question was whether a reasonable finder of fact could have found his testimony credible and, if the finder of fact did so, whether it was sufficient to support a finding beyond a reasonable doubt of guilt. There was, as we have said, no error in the judge's conclusion that that standard was met. That the judge may have concluded that the defendant's testimony bolstered the credibility of the victim's testimony -- something that the judge did not say on the record -- does not demonstrate that the evidence was insufficient to support a conviction prior to that testimony by the defendant. Finally, the statement that there was "zero evidence that [the defendant] was even on the train," does not mean that there was insufficient evidence at the close of the Commonwealth's case of an unconsented-to touching. In any event, there was of course evidence that the defendant had been on the train in the form of testimony of the victim. See Commonwealth v. Gonzalez Santos, 100 Mass.App.Ct. 1, 3 (2021) .
Judgment affirmed.
The panelists are listed in order of seniority.