Opinion
15-P-206
03-02-2016
COMMONWEALTH v. BRIAN H. SHERMAN.
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
Following a District Court jury trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G.L. c. 265, § 13B. On appeal, he claims that the evidence was insufficient to permit a finding of guilt beyond a reasonable doubt, and, hence, it was error for the trial judge to deny his motion pursuant to Mass.R.Crim.P. 25, as amended, 420 Mass. 1502 (1995), to set aside the verdict. We affirm.
Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the jury could have found the following facts. In July, 2007, the defendant, who worked as a nurse at a summer camp for Boy Scouts, asked the victim, his eleven year old niece, to spend a weekend at the camp babysitting the defendant's five year old daughter. The defendant, his daughter, and the victim stayed together in the same cabin. On the first night, when the victim complained of bug bites and having trouble sleeping, the defendant called the victim's mother and received permission to give her Benadryl. The next night, he again gave the victim Benadryl, this time using twice the dosage. The victim fell asleep, and woke up to a bright light shining in her face. Her pajamas and underwear had been pulled down, and the defendant was digitally penetrating her. The doorbell rang, and the defendant got up to answer the door. When he came back, he told the victim that he was "just trying to make [her] feel better." Despite undergoing counseling in the summer of 2007, the victim did not disclose this incident. The victim first revealed the assault on June 14, 2009, when exchanging text messages with her mother about why she would not ride in a car alone with the defendant.
The defendant's argument on appeal reduces itself to a challenge to the victim's credibility. Pointing to the absence of any physical evidence, the victim's delay in reporting the incident, and alleged inconsistencies in her statements, the defendant claims that the jury should not have believed her, and that the only rational conclusion to be drawn was that the victim must have been dreaming.
The defendant notes that the victim testified during direct examination that she had opened her eyes slightly when the defendant was touching her. However, on cross-examination, defense counsel questioned the victim about statements she made during a Sexual Abuse Intervention Network (SAIN) interview, in which she said that she had not opened her eyes at all during the incident. On redirect, the victim testified that, in the same interview, she clarified that she had opened her eyes and seen the defendant assaulting her. Contrary to the defendant's suggestion (made for the first time on appeal), the Commonwealth was under no obligation to introduce the transcript of the SAIN interview in conjunction with the redirect examination.
There is no merit to the defendant's position. Issues of credibility "relate to the weight of the evidence and are properly left to the fact finder for resolution." Commonwealth v. Berrios, 447 Mass. 701, 710 (2006). To the extent that conflicting inferences could have been drawn from the evidence, it was for the jury to decide which version to credit. "That evidence is conflicting does not demand a required finding of not guilty." Commonwealth v. Merry, 453 Mass. 653, 661 (2009).
Judgment affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 2, 2016.