Opinion
18-P-1026
01-27-2020
COMMONWEALTH v. Christopher L. ROOT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a Superior Court jury of two counts of rape of a child aggravated by a ten-year age difference, G. L. c. 265, § 23A (b ), and one count of indecent assault and battery on a person over fourteen. G. L. c. 265, § 13H. On appeal, he challenges certain of the judge's evidentiary rulings as well as the judge's denial of his motion for a mistrial. We affirm.
Background. We summarize the trial evidence as follows, reserving certain facts for later discussion. The defendant was the victim's mother's long-term boyfriend and had known the victim and her siblings since they were very young. According to the victim, until 2012, the defendant had been "like a father" to her. Beginning when the victim was thirteen, however, the defendant began to demonstrate sexual interest in her. Two years later, while living with the then-fifteen year old victim's family, the defendant raped the victim for the first time. The victim testified that the defendant continued to rape her two to three times per week for several months, stopping when the victim left the family home and went to live with her grandmother.
Discussion. 1. Prior bad acts. Over the defendant's objection, the trial judge allowed the Commonwealth to introduce copies of eleven letters that the defendant wrote to the victim in 2013 and 2014, and permitted the Commonwealth's witnesses to testify about the letters.
The defendant filed a motion in limine to preclude the Commonwealth from introducing those letters.
Those letters included, among other things, repeated assertions of the defendant's love for the victim; the use of endearments and pet names including "Hey Gorgeous," "Hey Snuggles," and "Pretty [victim's name]"; and references to his hopes that the victim would envision him kissing her and holding her while she slept. One of the letters included a reworded version of a Bruno Mars ballad, "When I Was Your Man," followed by a sketch of "a smiley face with the tongue hanging out." The jury also saw several envelopes that had held letters to the victim, and on which the defendant had written, "I love you," or "I love you, baby."
Likewise over the defendant's objection, the judge allowed the Commonwealth to introduce evidence about the defendant's inappropriate conduct toward the victim during a vacation in 2012. The victim was also permitted to testify that two summers later, in 2014, while she was swimming, the defendant approached her from the back, pulled her to him, and held her against his body.
Specifically, the victim testified that during the summer of 2012, while the defendant, the victim, and other members of the victim's family were staying at a campground on Cape Cod, the defendant began holding the victim's hand in circumstances that made the victim feel uncomfortable; went into the tent she shared with siblings, lay behind her, and rubbed her inner thigh near her vagina; and told her not to tell her mother about this behavior.
We review the judge's ruling on the admission of prior bad acts evidence for abuse of discretion, see L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), and affirm in the absence of clear error. See Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). We discern no error in the judge's rulings on the prior bad act evidence. Contrary to the defendant's contention, the evidence at issue was not admitted to show the defendant's bad character or propensity to victimize children, but to establish the nature of his predatory relationship with the victim. See Commonwealth v. McDonagh, 480 Mass. 131, 140-141 (2018), citing Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996) (evidence of prior bad acts "may be admissible to prove a material issue separate and distinct from the defendant's character or propensity to commit the crime charged"). The evidence of the defendant's 2012 kissing and touching of the victim, his 2013 and 2014 letters including romanticized professions of love, and his continued sexual touching of the victim in 2014 demonstrated the defendant's ongoing development of the victim as an object of sexual attraction, rather than -- as he maintained -- a daughter. The evidence was admissible and probative for this purpose. See Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994) ("In sexual assault cases, some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and ‘the probative existence of the same passion or emotion at the time in issue’ ").
While the defendant is correct that the time dedicated to the evidence of uncharged conduct was not insubstantial, we conclude that the evidence was not unduly prejudicial. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018) (relevant evidence admissible only where its probative value is not outweighed by unfair prejudice). We discern scant likelihood that the jury would be distracted or confused in their assessment of the conduct for which the defendant was charged by the evidence of his changing behavior toward the victim over time. Mitigating this risk, the judge gave timely and thorough limiting instructions as to the use of the evidence of the defendant's inappropriate conduct toward the victim in 2012 and 2014. Compare Commonwealth v. King, 387 Mass. 464, 472 (1982).
The defendant did not request a limiting instruction as to the letters, and none was given as to that evidence.
We are likewise unpersuaded that the bad acts evidence about the defendant's conduct in 2012 and 2014 was too remote in time to be admissible. It was undisputed that the defendant had known the victim for nearly all of her life; there was no error or abuse of discretion in the judge's allowing the jury to hear when and how the defendant's conduct manifested a change in his relationship with the victim from "stepfather" to abuser.
2. Evidence of victim's reports. As the prosecutor confirmed at the trial's outset, the Commonwealth did not identify a first complaint witness. The defendant argues that the judge abused his discretion in allowing the jury to hear what the defendant suggests is the equivalent of "three separate complaints by [the victim]." We disagree. The testimony at issue came from the victim and from her sister. The victim testified that when she was fifteen, she moved in with her grandmother in New York. On redirect examination, over the defendant's objection, and for the purpose of showing that the victim told no one about the defendant's abuse until December 2014, the prosecutor elicited the victim's testimony that she told her grandmother "what [the defendant] had done to [her]." The victim then testified that she later learned that her grandmother had "told CPS [Child Protective Services]." On cross-examination, the victim testified that she had been interviewed by a CPS worker and told the worker that "[she] w[as] not raped." The victim testified that she did not recall the details of the CPS interview, but that she remembered "talking about the fact that [she] had been sexually assaulted." The prosecutor then asked, "And just so I'm clear, ... you didn't talk about rape, but you talked about sexual touching." Later in the trial, the victim's sister (sister) was asked whether she had told her mother that she had seen the defendant in the victim's room and in the victim's bed on a daily basis, and the sister responded, "No. She never believed [the victim] the first --[.]"
The defendant preserved the issue with respect to the evidence about reports made to the victim's grandmother and a Child Protective Services worker; thus, we review for prejudicial error. See Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). The third report, which was based on the victim's sister's testimony, was not objected to, and so we review for a substantial risk of miscarriage of justice.
The defendant did not object to this testimony.
First, none of the evidence at issue was "first complaint" testimony, in that it did not include any details of the victim's report or of the report's surrounding circumstances. See Commonwealth v. Arana, 453 Mass. 214, 220 (2009) (first complaint doctrine permits evidence of details, timing, and relevant conditions of victim's report of sexual abuse).
Second, even had the challenged testimony included specific detail about the reports, the evidence in each instance was admissible because it had value independent of its status as first complaint evidence. See id. at 229. The victim's report to her grandmother in December 2014 provided an explanation for the absence of any corroborating physical evidence of the rapes. See Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009) ("admission of multiple reports of a victim's allegations of rape is permissible where the evidence serves an independent purpose and is necessary to present a fair and accurate picture of the Commonwealth's case"). As to the victim's testimony that she had talked with CPS about being "sexually assaulted" and "sexually touched," that evidence was a fair clarification of testimony elicited on cross-examination that she had not reported being raped, and was permissible to rebut the suggestion that her statement meant she had denied all sexual contact by the defendant. See Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009) (no violation of first complaint doctrine where testimony is introduced to rebut questions raised by defendant). The remaining evidence, i.e., the victim's report to her mother -- whom the victim explicitly denied telling about the abuse -- came out through a nonresponsive answer by the sister. The statement did not amount to evidence that the victim had reported to either the mother or the sister. We see no substantial risk of a miscarriage of justice in the jury's hearing that evidence.
The fact that there was additional direct evidence to show that the victim had not sought a medical examination in connection with the abuse does not change our view.
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3. Mistrial. The defendant argues that the judge abused his discretion in not declaring a mistrial after the sister answered, "Some," to the following question: "Did [the defendant] get into bed with you and cuddle you?" See Commonwealth v. Lao, 460 Mass. 12, 19 (2011) ("Review of a decision denying a motion for a mistrial is for an abuse of discretion"). The defendant's burden is to show that "the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision [fell] outside the range of reasonable alternatives" (quotation and citation omitted). L.L., 470 Mass. at 185 n.27. The defendant cannot meet that strict standard here. After a sidebar conference, the judge instructed the jury to disregard the sister's answer, the answer was not repeated, and the jury heard no other reference to inappropriate behavior by the defendant toward the sister. The judge did not abuse his "broad discretion" in denying the defendant's motion for a mistrial. Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 601-602 (1991).
Judgments affirmed.