Opinion
14-P-1481
03-10-2016
COMMONWEALTH v. FRANCISCO RECINOS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant was convicted of one count of indecent assault and battery on a child under the age of fourteen. G. L. c. 265, § 13B. He now appeals.
The defendant argues that it was error to admit, over his objection, testimony that after the time of the charged crime, the defendant had inappropriately hugged and kissed the victim. The defendant does not argue that this is evidence of past bad acts, and acknowledges that he did not object to the introduction of the evidence on past bad acts grounds. The defendant contends rather that he preserved his objection to this evidence on the ground that the unfair prejudice caused by this evidence substantially outweighed its probative value. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.26 (2014) ("[A]ll '[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,'" but "'other bad acts' evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice" [citation omitted]).
The defendant argues that there was testimony that the inappropriate hugging and kissing occurred before the charged crime. However, the victim did not testify to that effect, nor did the police lieutenant, although the latter testimony required clarification. More importantly, such evidence would have been admissible, had it been offered, for the reasons stated, infra.
Even assuming arguendo the claim of error here was preserved, we see no abuse of discretion in the judge's admission of this evidence. It is well settled that "[i]n sexual assault cases, evidence of similar illicit sexual contacts involving the same parties may be used to show a pattern of conduct, intent, and a relationship between a defendant and a complainant." Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015) (citation omitted). In this case, this evidence was admissible for these purposes.
There is a serious argument that this claim was not preserved. The defendant objected twice to testimony about the inappropriate hugging and kissing, once during the victim's testimony and once during the testimony of a police lieutenant as to the content of the victim's earlier statement. As to the first objection, there is no indication that the basis of the objection was that the evidence was unfairly prejudicial. The second objection was explicitly "to the way the question was phrased."
In addition, there was evidence that in a recorded statement to the police, the defendant stated that on the evening in question the victim had come to his room while he was in bed, had told him that she had discomfort in her abdomen, and placed his hand on it. The defendant stated that when he realized that the victim had placed his hand on her vagina, he immediately moved his hand and the victim left his bed. The challenged evidence in this case therefore was also relevant to rebut this claim of accident. See Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994) (prior or subsequent bad acts "admissible, if relevant, to show . . . absence of accident or mistake").
In light of the testimony's probative value, we cannot say that the judge abused her discretion in concluding that the risk of unfair prejudice did not substantially outweigh its probative value. Even if the defendant had objected on the ground that this was evidence of "other bad acts," the judge would not have abused her discretion in concluding that the risk of unfair prejudice did not outweigh its probative value.
The defendant did not request a limiting instruction, and none was given. To the extent this appeal challenges the failure to give a limiting instruction, we find that its absence created no substantial risk of a miscarriage of justice, given that the prosecutor did not mention these other acts in closing, but focused entirely on the credibility of the victim. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009).
Judgment affirmed.
By the Court (Kafker, C.J., Rubin & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 10, 2016.