Opinion
No. 11–P–1724.
2012-05-25
COMMONWEALTH v. Richard SOBOL.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a Superior Court jury of eight counts of rape of a child, four counts of indecent assault and battery on a child, one count of incest, and two counts of disseminating material harmful to a minor. He asserts error in the judge's failure to strike the testimony of one complaining witness in its entirety and in the denial of his motion for a required finding of not guilty on one count of disseminating material harmful to a minor. We affirm in part and reverse in part.
Motion to strike testimony of complaining witness. We set forth the facts, as the jury could have found them, in conjunction with our legal analysis. The defendant's daughter and son, ages twelve and thirteen respectively at the time of trial, testified that their father raped and abused them both during court-ordered
visits. Both children testified at some length and with material specificity about incidents that occurred roughly five to seven years before trial, when the daughter was as young as five years old and the son was between seven and nine years old. Both children were unhesitant and unequivocal in identifying the assailant as their father. The son, however, was unable to identify his father in the courtroom after several attempts by the prosecutor to elicit testimony that the son recognized the defendant.
The parents were separated and then subsequently divorced during the time in question.
The judge determined that the son was competent to testify on the basis of his testimony as a whole. “The judge is afforded wide discretion—indeed, is obliged—to tailor the competency inquiry to the particular circumstances and intellect of the witness.” Commonwealth v. Brusgulis, 398 Mass. 325, 329–330 (1986). “It is seldom that the discretion of the trial judge can be revised; its exercise must have been clearly erroneous to justify such action.” Commonwealth v. LeFave, 407 Mass. 927, 942 (1990), quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921). This determination was made in the exercise of the judge's discretion, compare Commonwealth v. Widrick, 392 Mass. 884, 887–888 (1984), and the record reveals no clear error. See Commonwealth v. Monzon, 51 Mass.App.Ct. 245, 248 (2001) (setting forth familiar two-prong test for competency).
The son's testimony demonstrated his detailed recollection of the events that comprised the defendant's criminal acts as well as the surrounding circumstances. The son's confusion about the identity of the defendant as he appeared in court did not affect the son's certainty that he had been raped and assaulted by his father. His inability to recognize the defendant in court went to the weight, not admissibility, of the evidence, and was for the jury to decide.
See Commonwealth v. Gomez, 450 Mass. 704, 710–711 (2008). The trial judge instructed the jury on their role in assessing the credibility of the witnesses and also specifically told the defendant that he could argue to the jury that the son was not credible.
Other factors bearing on the weight to be accorded the son's testimony may be found in the consistent description of events provided by both siblings and the defendant's mother's statement, when asked if the defendant looked the same since the time of the alleged abuse, “No. He put a little weight on.”
Dissemination of material harmful to minor. We must reverse the judgments on this charge as the statute, G.L. c. 272, § 28, specifically exempts the defendant, as the minors' father, from the prohibition. See Commonwealth v. Poitras, 55 Mass.App.Ct. 691, 692 n. 1 (2002). We acknowledge the Commonwealth's appropriate and professional conduct in conceding the issue.
Conclusion. On the two counts of the indictment charging disseminating harmful material to a minor, the judgments are reversed, the verdicts are set aside, and judgments are to enter for the defendant. The remaining judgments are affirmed.
So ordered.