Opinion
16-P-204
05-04-2017
COMMONWEALTH v. Luis A. RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with having committed an indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B (under-14 charge), and an indecent assault and battery on a person of age fourteen or over, G. L. c. 265, § 13H (14-or-over charge). The victim was the daughter of the defendant's girl friend.
When the complaint was issued, January 1, 2005, was used as the date for both the under-14 count and the 14-or-over count. The complaint was subsequently amended to charge that the under-14 incidents occurred between June 19, 2005, and June 19, 2009, and that the 14-or-over incident occurred between June 19, 2009, and June 19, 2011.
The under-14 charge was based on repeated indecent touchings that began when the victim was around ten years old. They occurred while the victim slept in her mother's bed, sometimes while the mother was also in the bed asleep. The victim could not say whether the defendant was awake or asleep when the touchings occurred. Part of the defense was that the touchings, if they occurred, occurred while the defendant was asleep and were accidental.
The 14-or-over charge was based on an incident the victim alleged occurred in her upstairs bedroom. She testified that the episode occurred when she was "about like 13 and a half, 14 about." Concluding that this evidence did not satisfy the Commonwealth's burden to establish that the victim was age fourteen or over, the judge allowed the defendant's motion for a required finding on the 14-or-over charge.
After the defendant rested, but before closing argument, the defendant requested that the judge strike the evidence about the upstairs bedroom incident and instruct the jury to disregard it, arguing that it had no relevance to the under-14 charge. The judge disagreed, declined to strike the evidence, and concluded that the evidence bore on whether the touchings in the mother's bed had occurred by mistake while the defendant was asleep; in other words, the evidence was relevant to the defendant's state of mind or intent. The judge determined, therefore, to instruct the jury that the evidence could be used only for that limited purpose, and he instructed the prosecutor to limit his argument of that evidence to those parameters. The defendant lodged no objection at this point.
The judge's detailed limiting instruction to the jury is set out in the margin. The defendant lodged no objection and stated that he was satisfied with the instructions, thus failing to preserve any issue with respect to the instructions. See Commonwealth v. King, 77 Mass. App. Ct. 194, 197 (2010), S.C., 460 Mass. 80, 84-85 (2011).
The judge instructed the jury as follows:
"Now the defendant, as I said, is not at this point—he is no longer, is not charged with indecent assault and battery on a person 14 or over. He is charged with only, again, one count of indecent assault and battery on a child under the age of 14.
"Now you've heard some mention of an allegation, a description of an alleged event. You've heard that a witness testified occurred [sic ] in an upstairs bedroom at some point in time. You've heard some testimony about another event or events which allegedly occurred elsewhere and, I guess generally speaking, in a downstairs location in the home where the parties were allegedly living. I have, again, removed from your consideration the allegation, the accusation that [the defendant] committed an indecent assault and battery on a person 14 or over by virtue of what allegedly occurred in this upstairs bedroom. So, that may not be, even if you believe that happened, you find that true that those facts are as testified by the complaining witness, that alleged event or act by the defendant may not be the act upon which you base a finding that he is guilty of the charge of indecent assault and battery on a child under 14. So, you may not consider that as proof that the defendant has a criminal personality or a bad character.
"Now, however, if you find that that testimony with regard to the alleged event or act, and I'll just refer to it as an upstairs bedroom as opposed to the downstairs bedroom or place, you may consider that solely on some limited issues. And, again, it's up to you to determine to find whether or not and determine, decide whether or not that testimony was believable and relevant and probative. You may consider—if you do, you may consider that testimony as to whether or not it's relevant or probative or it shows a motive on the part of the defendant, whether it's relevant to his state of mind with regard to the earlier alleged events or acts, his intent, the relationship between the defendant and the complainant at this earlier time that's been described or alleged, and you may consider it on the issues of whether there is a mistake or absence of mistake or accident with regard to the other alleged acts. And those are the only issues on which you may, again if you find that subsequent act that was described or alleged again, to be believed, if you believe it, if you find it relevant, probative, those are the issues on which you may consider it. But that act, if you believe it happened, cannot be the basis for your finding of guilt with regard to other acts. But you may consider it for those issues if you think they're relevant.
"So, again, you may not use that evidence, that testimony, to conclude that if the defendant committed that other act, he must also have committed the act which was alleged to have happened earlier. The evidence of these other acts may be used only for those limited purposes in deciding what the facts are with regard to this charge of indecent assault and battery on a child under 14."
On direct appeal from his conviction on the under-14 charge, the defendant argues that (1) once the judge ordered a required finding on the 14-or-over charge, the judge should have struck all evidence about the incident in the upstairs bedroom and instructed the jury not to consider it for any purpose, (2) the prosecutor improperly argued that evidence during closing, and (3) the evidence was insufficient to prove the victim's age or that the offense occurred between the dates alleged in the complaint. We affirm.
There is no doubt that evidence about the upstairs incident was properly admitted at the time it was introduced; after all, it was the basis for the 14-or-over charge. The defendant has not pointed us to any authority requiring a judge to strike testimony relating to a charge upon which a required finding is ordered at the close of the Commonwealth's evidence. In the absence of any per se rule to that effect, it lay within the judge's discretion to determine what corrective action (if any) was called for in the circumstances here. Because, as the judge found, the evidence bore on the defendant's state of mind and the absence of mistake with respect to the under-14 charge, the judge did not abuse his discretion in denying the defendant's request that the jury be instructed to disregard the evidence entirely. For the same reason, it was not an abuse of discretion for the judge to give a detailed instruction limiting the jury's use of the evidence. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998) ; Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). The judge did not allow the jury to consider the evidence substantively, and he was not required to strike the evidence from the record.
The defendant next argues that the prosecutor ignored the judge's instruction limiting his (the prosecutor's) use of the evidence in closing argument. We disagree; the prosecutor only referred to the disputed evidence to demonstrate intent and lack of mistake. He did not use the evidence substantively nor did he misstate its importance. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ; Commonwealth v. Rosa, 412 Mass. 147, 156 (1992).
Lastly, the defendant argues that the evidence was insufficient to establish the victim's exact age or the specific date of the offense. Examining the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), we conclude the Commonwealth met its burden, and the judge properly denied the defendant's motion for a required finding of not guilty. The victim testified that the defendant inappropriately fondled her repeatedly beginning when she was around ten, after her body had begun to develop. Nothing more was required. General Laws c. 265, § 13B, does not require the Commonwealth to allege or prove the specific date or time the indecent assault and battery occurred, only that it was committed on a child under the age of fourteen. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 616 (2010) ; Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 573 (2006).
Judgment affirmed.