Opinion
No. 13–P–1841.
11-29-2016
COMMONWEALTH v. Kenville ROBERTSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kenville Robertson, appeals his convictions on three indictments for rape of a child, in violation of G.L. c. 265, § 23. He argues that the trial judge erred in allowing evidence of the defendant's subsequent bad acts because the evidence was not probative of the defendant's course of conduct with the victim, and the prejudicial effect of the evidence substantially outweighed its probative value. He also argues that the judge erred in instructing the jury that the evidence of the defendant's subsequent bad acts could be used to explain the victim's delay in disclosing the alleged sexual abuse. We affirm.
In this matter, the victim, J.R., is the defendant's biological daughter. J.R. testified at trial that the defendant raped her during the years 1990 to 1996, when she was about seven to eight years old until she was about twelve or thirteen years old. J.R. stated that the incidents happened so often that it became routine; the defendant would "force himself [his penis] inside of [her]" and he would also force her "to suck his penis." She also testified that he touched her with his hands on her head, thigh, and prepubescent chest. J.R. stated that she did not tell anyone about these incidents because she was "scared." J.R. further stated that she came forward to law enforcement in 2010 because she heard about allegations that the defendant had sexually abused another girl named N.M.
At the time of trial, J.R. was twenty-nine years old.
At trial, J.R. testified to prior occasions where she told a teacher and social worker about the sexual abuse. She also stated that she recanted those allegations because the defendant told her that if she continued with her story, her family would be split up.
At trial, N.M. testified to subsequent acts of rape that the defendant committed on her during the years 2004 to 2009. N.M testified that she called the defendant "Dad" and had more contact with the defendant than with her biological father. N.M. stated that the defendant would stay overnight at her mother's home several times each week and had keys to her mother's house. She further testified that the defendant sexually abused her beginning when she was eight years old and ending when she was thirteen years old. The abuse consisted of conduct such as the defendant touching N.M.'s vagina with his hands while N.M.'s mother was in the room sleeping, moving N.M.'s hand to his penis and squeezing it, and penetrating her vagina with his penis, causing her pain. N.M. also stated that the defendant told her not to tell anyone because the police would get involved.
The defendant was previously tried for the acts against N.M. and convicted on three indictments for aggravated rape of a child, assault with intent to rape a child, and three indictments for rape of a child with force. We affirmed those convictions. Commonwealth v. Robertson, 88 Mass.App.Ct. 52 (2015).
The defendant is the biological father of N.M.'s brother.
N.M. took this to mean that she would be taken away from her family.
Discussion. 1. Subsequent bad act evidence. The defendant argues that the judge erred in admitting N.M.'s testimony that the defendant sexually abused her at a time subsequent to the alleged sexual abuse of J.R. in order to show the defendant's "pattern of conduct" and to corroborate the testimony of J.R. "Although evidence of prior or subsequent bad acts ‘may not be offered to prove bad character or criminal propensity, such evidence may be admitted for another purpose.’ " Commonwealth v. Lally, 473 Mass. 693, 712 (2016), quoting from Commonwealth v. Holliday, 450 Mass. 794, 815 (2008). It may be admitted "to show ‘a common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.’ " Lally, supra, quoting from Commonwealth v. Gollman, 436 Mass. 111, 113–114 (2002). Prior or subsequent bad act evidence involving someone other than the victim may be admissible "if it is connected ‘in time, place, or other relevant circumstances to the particular sex offense for which the defendant is being tried.’ " Commonwealth v. Iguabita, 69 Mass.App.Ct. 295, 300 (2007), quoting from Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 818 (1998). The evidence is admissible if the judge determines that "its probative value outweighs the risk of undue prejudice to the defendant." Commonwealth v. Dwyer, 448 Mass. 122, 128–129 (2006).
The defendant argues that the judge improperly used the term "pattern of conduct," instead of "a common scheme" or "course of conduct," in instructing the jury on the noncharacter purposes for which the subsequent bad act evidence may be admissible. Our case law, however, accepts this phraseology, contrary to the defendant's argument. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) ; Commonwealth v. White, 60 Mass.App.Ct. 193, 197 n. 8 (2003) (noting prior bad act evidence may be admissible to show "manifestations of a common course or pattern of conduct"); Commonwealth v. Blackmer, 77 Mass.App.Ct. 474, 482 (2010) (upholding judge's findings that Commonwealth's subsequent bad act evidence was offered for noncharacter purposes establishing "the defendant's modus operandi and pattern of conduct"); Commonwealth v. Robertson, 88 Mass.App.Ct. 52, 56 (2015) (stating prior bad act evidence "tended to show the defendant's intent and ... corroborated the pattern of conduct testified to by the victim").
The defendant contends that this court should treat subsequent bad acts and prior bad acts differently. We find this argument meritless. See Commonwealth v. Source One Assocs., 436 Mass. 118, 129 n. 13 (2002) ("Our opinions in this context generally refer to the admissibility of evidence of ‘prior bad acts.’ The principles are the same, however, whether the bad acts are prior or subsequent to the events involved in the case before the court").
The defendant's claim that the allegations involving N.M. and J.R. are too factually dissimilar to demonstrate a pattern of operation is meritless for the same reasons as previously addressed in Commonwealth v. Robertson, 88 Mass.App.Ct. 52, 55–56 (2015). Despite the defendant's contentions, the circumstances in which the abuse occurred was similar in both cases. Not only was the defendant a "father-like figure" to both victims, he used this relationship and the victims' dependence on him to keep them from reporting the abuse. The nature of the sexual abuse in both cases reflected a common pattern. See id. at 55. The victims were around the same age, seven or eight years old, when the abuse began. Ibid. In both instances, the defendant attempted to engage in oral sex, had vaginal intercourse with the young girls, touched their prepubescent chests, "and each assault occurred almost exclusively in the privacy of the bedroom in which the defendant slept." Id. at 55–56. Here, N.M.'s testimony demonstrated the defendant's intent and inclination to commit the acts charged against him and it corroborated the defendant's pattern of operation as testified to by J.R. See id. at 56.
"One difference is that the defendant forced his penis into J.R.'s mouth, but was unable to do so with N.M. because N.M. resisted. Such differences, however, ‘do[ ] not render the otherwise factually similar assaults distinct.’ " Robertson, supra at 55 n. 7, quoting from Commonwealth v. Aguiar, 78 Mass.App.Ct. 193, 201 (2010).
We reject the defendant's argument that the evidence of the defendant's subsequent bad acts was too remote to be relevant and probative. Evidence of uncharged conduct by the defendant toward someone other than the victim is admissible if it "form[s] a ‘temporal and schematic nexus' which renders the evidence admissible to show a common course of conduct regarding the victims." Hanlon, supra at 818. Although there is no bright line test to measure remoteness, the allowable time period is greater where, as here, the defendant's subsequent bad acts were "part of a ‘continuing course of related events,’ " or "unusual and particularly similar to the charged acts." Robertson, supra at 56, quoting from Hanlon, supra at 819. Therefore, notwithstanding the eight years between the incidents, "the defendant's need for access [to prepubescent girls within his family], coupled with the similarity in the method by which the defendant committed the various offenses, renders the evidence admissible." Robertson, supra at 57, quoting from Commonwealth v. Pillai, 445 Mass. 175, 182 (2005).
We also reject the defendant's claim that the judge erred in admitting the evidence because its probative value was outweighed by the risk of undue prejudice to him. Here, N.M.'s testimony was neither overwhelming nor extremely detailed. See Dwyer, 448 Mass. at 128–129. Furthermore, the judge gave careful limiting instructions to the jury both before N.M. testified to the defendant's subsequent misconduct, as well as during the judge's final charge to the jury before they began deliberations. In these instructions, the judge repeatedly stated that the defendant "is not charged with anything as far as [N.M.] is concerned" and emphasized to the jury that the evidence may only be considered for the purpose that "the defendant had a common scheme or pattern of conduct or modus operandi" as well as the defendant's "motive or intent." See Pillai, 445 Mass. at 190 ("We presume that the jury followed the judge's instruction"); Commonwealth v. Delong, 60 Mass.App.Ct. 528, 533–536 (2004) (jury instructions "were adequate to limit any unfair prejudice to the defendant arising from admission of [bad act evidence]").
2. J.R.'sdelay in disclosing sexual abuse. The defendant argues that the judge improperly instructed the jury that N.M.'s testimony of the defendant's subsequent bad acts may be used to explain J.R.'s delay in disclosing the sexual abuse. The defendant specifically argues that the judge's jury instruction was improper because J.R. testified that the reason she initiated the disclosure of the abuse in 2010 was because she learned of the allegations involving N.M. The defendant contends that this testimony is "not admissible to explain why a delayed complaint was made at a particular time or to show the victim's state of mind when he or she made the complaint." Commonwealth v. Johnson, 35 Mass.App.Ct. 211, 218–219 (1993). However, a trial judge may admit evidence that "tend[s] to rehabilitate the Commonwealth's witness by explaining why, after a long period of silence, she complained of the defendant's conduct." Commonwealth v. Errington, 390 Mass. 875, 881 (1984). Whether the witness is first impeached during cross-examination, as in Errington, or during defense counsel's opening statement, as occurred here, the "distinction [is] without a difference." Commonwealth v. Hall, 66 Mass.App.Ct. 390, 394–395 (2006) (bad act evidence may be admitted to rehabilitate victim's credibility). "In either event, the defendant has quite understandably raised a credibility issue, suggesting fabrication and creating doubt as to why the witness made the accusations, and a resultant need by the Commonwealth to rehabilitate its witness." Id. at 395.
Defense counsel stated in his opening, "[y]ou're going to hear testimony from ... [J.R.] that she supposedly retracted the accusations she made ... [a]nd you're going to hear hopefully through cross-examination about the number of times that she's had an opportunity as an older person to come forward if these accusations were in fact true." As a result of defense counsel's signaling that J.R.'s integrity as a witness would be challenged upon cross examination, the Commonwealth had a "substantial and legitimate interest in rehabilitating" J.R.'s credibility. Errington, supra at 880–881. Therefore, the Commonwealth properly demonstrated on direct examination why J.R. went to the police in 2010, after a long period of silence. See Commonwealth v. Fritz, 472 Mass. 341, 351 (2015) ("[W]here defense counsel challenged the witnesses' delayed reporting in the opening statements, no prejudice arose when the prosecutor elicited the circumstances of that disclosure during direct examination"). Moreover, no undue prejudice arose when the judge repeatedly gave a careful limiting instruction that the jury may consider N.M.'s testimony as relevant to the reasons why J.R. came forward with her allegations years after the alleged sexual assault occurred. See Hall, supra at 396 ("It would also be appropriate for the judge to issue a limiting instruction following such testimony, that the evidence is admissible only to explain the witness's state of mind in delaying her report of the alleged crime"). Any prejudicial impact was outweighed by the probative value of N.M.'s testimony. See id. at 395.
Judgments affirmed.