Opinion
22-P-111
12-29-2022
COMMONWEALTH v. Luis UMANA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant, Luis Umana, was convicted of two counts of rape of a child, aggravated by a five-year age difference, pursuant to G. L. c. 265, § 23A, and one count of indecent assault and battery on a child under fourteen, pursuant to G. L. c. 265, § 13B. On appeal, the defendant argues that (1) evidence of the victim's allegation of sexual abuse by a different family member should have been admitted, (2) an expert witness testified improperly, (3) the judge improperly allowed testimony of uncharged conduct, and (4) trial counsel was ineffective for failing to raise a third-party culprit defense. Concluding that the trial judge committed no prejudicial error or abuse of discretion and that the defendant has failed to demonstrate ineffective assistance of counsel, we affirm.
Prior to the trial, the Commonwealth dismissed another count of indecent assault and battery on a child under fourteen, pursuant to G. L. c. 265, § 13B.
Background. We set forth the facts the jury could have found, reserving additional details for later discussion. The indictments arose from the defendant's sexual abuse of the victim, his stepchild, while they lived together in an apartment in East Boston. During that time, the defendant sexually abused the victim after her mother left for work. Three years later, when the victim was thirteen years old, her mother discovered she was communicating with a man in his twenties who stated by text message that he wanted the victim to be his girlfriend. After her mother took the phone to look at the messages, the victim disclosed the defendant's abuse.
The defendant filed a motion in limine, to introduce evidence that the victim also alleged that another family member, G.A.R., had sexually abused her. After a hearing, the judge excluded evidence of this accusation. The Commonwealth moved to admit evidence of various uncharged acts disclosed by the victim shortly before trial. The judge allowed testimony of only one of the acts: that the defendant ejaculated on the victim's chest.
At trial, the Commonwealth called Dr. Stephanie Block as an expert witness to testify about factors that influence whether and when a child discloses sexual abuse. The defendant challenges a portion of her testimony on redirect where she opined that "we probably have more false denials [of sexual abuse allegations] ... than we have false reports."
Discussion. 1. Allegation of abuse by G.A.R. Prior to trial, the defendant moved to allow evidence that the victim had also accused a family member, G.A.R., of sexual assault. After conducting a hearing, the judge denied the defendant's motion stating:
"The third party allegations are not ‘prior’ in time but rather simultaneous in time. There is no basis in this record to determine that they were false. The acts are not similar in manner, but distinct. I find the material is not fairly admissible to explore the witness's personal knowledge of sexual acts and terminology at the time of disclosure, when she was 13 years old. There is no evidence of psychiatric history or unusual memory problems. The argument about family dynamics and potential bias against the [defendant] is readily available by other means. For all of these reasons I am unable to find that the second accusation carries the potential materially to affect the credibility of the witness's testimony in the constitutional sense. I therefore rule that the weight and relevance of this proffered evidence is insufficient to outweigh the prejudicial effect to the complaining witness."
The defendant claims the judge erroneously denied his motion. He further contends that not allowing this evidence violated his constitutional right to present a defense.
As an initial matter, the judge improperly used the standard of admitting evidence under the rape shield statute, G. L. c. 233, § 21B. Under that statute, evidence of a sex crime victim's sexual conduct is admissible only if "the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim." G. L. c. 233, § 21B. Both parties agree that the rape shield statute does not apply in this case because the defendant was not seeking to admit the evidence to suggest that the victim was promiscuous. See Commonwealth v. McGhee, 472 Mass. 405, 427 (2015). Therefore, the judge should have excluded the evidence only if "its probative value is substantially outweighed by the danger of unfair prejudice" (citation omitted). Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). See Mass. G. Evid. § 403 (2022). We conclude that the exclusion of the evidence was not error, in light of the slight probative value of the excluded evidence. See Commonwealth v. Cole, 473 Mass. 317, 331 (2015), overruled on other grounds by Commonwealth v. Wardsworth, 482 Mass. 454 (2019) ("We review any error in the admission of ... evidence under the prejudicial error standard").
In the offer of proof, the defendant claimed that the victim stated G.A.R. "would touch her ‘under her clothes with his hand in the bottom, in both the front and back.’ " In a footnote, the defense stated, "This offer of proof is based upon evidence contained in medical records, reports from the Department of Children and Families, and grand jury testimony." However, the defendant did not provide the judge with any other specifics of the other alleged allegations and therefore the judge could not, nor can we, determine any heightened relevance.
Despite using the wrong standard, the judge's reasoning in denying the defendant's motion to admit G.A.R.’s sexual abuse demonstrates why the error was not prejudicial. First, evidence of touching underneath clothes would not provide an explanation for any sexual knowledge by the victim. Second, the allegation in the offer of proof was not similar to the abuse alleged against the defendant. See Commonwealth v. Ruffen, 399 Mass. 811, 815-816 (1987). Third, there were other ways to bring in any conflict between the victim's family and the defendant, such as testimony from the victim or other family members.
Because admission of the G.A.R. evidence had very little, if any, relevance to the defendant's defense, we conclude its exclusion was not prejudicial error.
2. Dr. Block's expert testimony. On cross-examination, defense counsel asked the expert witness, Dr. Block, if "there is an acceptance that some people just aren't telling the truth" when disclosing sexual abuse. On redirect, the Commonwealth asked, "In the research, what's more prevalent: false allegations, or false denials of allegations?" Dr. Block responded, "I would say research indicates that we probably have more false denials -- so, people denying abuse that actually occurred -- than we have false reports. But these are hard numbers to quantify."
The defendant challenges this testimony as improper opinion on the victim's credibility. Because defense counsel did not object to Dr. Block's testimony at trial, we review whether the error, if any, caused a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010).
We do not agree with the defendant that Dr. Block's testimony was error. The jury were aware that Dr. Block never examined or observed the victim, which mitigates the risk that the jury believed Dr. Block was vouching for the victim's credibility. See Commonwealth v. Federico, 425 Mass. 844, 849 (1997). Additionally, Dr. Block's testimony was in response to the defense counsel's suggestion on cross-examination that some children make false sexual abuse allegations. "The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination." Commonwealth v. Borgos, 464 Mass. 23, 35 (2012), quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). Dr. Block's testimony was an attempt to rehabilitate her cross-examination testimony. Thus, there was no substantial risk of a miscarriage of justice in allowing Dr. Block's redirect testimony.
3. Uncharged conduct. Defendant next argues that the admission of uncharged conduct, that the defendant ejaculated on the victim's chest, was error. Evidence of uncharged conduct to show the defendant's bad character or propensity to commit the charged crime is inadmissible. Crayton, 470 Mass. at 249. It may, however, be admissible for other purposes, including in sexual abuse cases "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.’ " Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994). If the evidence is admissible for this reason, it must next be determined whether its probative value is outweighed by a risk of undue prejudice to the defendant. Barrett, supra. We review this determination for an abuse of discretion. Commonwealth v. Lanning, 32 Mass. App. Ct. 279, 283 (1992).
In this case, the Commonwealth moved in limine to introduce recently disclosed evidence that the defendant sexually assaulted another teenage girl and committed four additional acts to the victim: (1) anal rape, (2) oral rape, (3) ejaculating on her chest, and (4) committing sexual abuse in a car. After a hearing, the judge allowed the motion only as to the ejaculation, but denied as to the other acts.
In her decision, the judge noted that the evidence of ejaculation would not "overwhelm" the narrative and proper limiting charges were to be given, citing Dwyer, 448 Mass. at 128-129. The judge also clearly understood the balance between the probative value of the evidence and potential undue prejudice against the defendant. Therefore, we cannot say that the judge abused her discretion in allowing testimony about the single uncharged act at trial.
4. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective for failing to attempt to raise a third-party culprit defense based on the victim's allegations against G.A.R. In considering a claim of ineffective assistance of counsel, we ask whether counsel's performance fell "measurably below that which might be expected from an ordinarily fallible lawyer," and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant raises this claim on direct appeal based solely on the trial record, which is "the weakest form of such a claim." Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015). An appellate court can provide relief only if the factual basis for such a claim appears indisputably on the record. Id.
We do not agree with the defendant's contention that trial counsel was ineffective. First, there was no basis in the offer of proof suggesting that the incidents for which the defendant was convicted were committed by anyone else. The allegations against G.A.R. were not "so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime" nor "particularly distinguishing" (citations omitted). Commonwealth v. Hunter, 426 Mass. 715, 716-717 (1998). Second, trial counsel did move to allow evidence of the victim's allegations against G.A.R., which the judge properly excluded. See supra. We cannot say that, in these circumstances, the record indisputably shows that failure to attempt to admit the allegations for a different purpose, a third-party culprit defense, was performance "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96.
Judgments affirmed.