Opinion
No. 10–P–1101.
2012-07-10
COMMONWEALTH v. Paul L. VALOIS.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with four counts of indecent assault and battery on a child under fourteen, and one count of disseminating obscene matter to a minor, arising from disclosures by the defendant's niece that he had abused her while in his care. After a District Court jury trial, the defendant was convicted of three of the indecent assault and battery counts and acquitted of the remaining charges. On appeal, the defendant argues (1) that violations of the first complaint doctrine mandate that he receive a new trial, and (2) that there was insufficient evidence to support one of his convictions of indecent assault and battery. We affirm.
The defendant's then-wife is the sister of the victim's father.
1. First complaint. The defendant claims that the admission of testimony by the investigating police officer explaining the purpose of the victim's Sexual Assault Intervention Network (SAIN) interview and the fact that the investigation went forward after it occurred, constituted a violation of the first complaint doctrine. Because the defendant did not object to the testimony, we review only for a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 456 Mass. 838, 845–846 (2010). See Commonwealth v. Roby, 462 Mass. 398, 409–410 (2012). Relief under this standard is seldom given, and may be granted only if all of the following questions are answered in the affirmative: (1) was there error; (2) was the defendant prejudiced by the error; (3) considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict; and (4) may we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision? Commonwealth v. McCoy, supra at 850. Even if we assume that the testimony in question ran afoul of the first complaint doctrine, see Commonwealth v. Stuckich, 450 Mass. 449, 456–457 (2008); Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 493–495 (2009), the defendant is not entitled to relief. Where, as here, the defendant used and expanded upon the challenged evidence in order to advance his defense, we cannot conclude that he was harmed or that his counsel's failure to object was not a reasonable tactical decision. See Commonwealth v. McCoy, supra at 850–853.
The defense claimed that the police already had decided to charge the defendant after the SAIN interview and before they interviewed him and heard his side of the story. Thus, during cross-examination, defense counsel made additional inquiries about the investigating officer's presence at the SAIN interview and his resulting initiation of paperwork for the charges before meeting with the defendant. The defense also claimed that the victim had fabricated her story because she was angry that the defendant had cursed at her for feeding his dog a pencil. Thus, to undercut the victim's credibility, defense counsel developed inconsistencies in the victim's disclosures by eliciting further testimony about the substance of the SAIN interview, playing a video recording of the victim's earlier meeting with police, and, in closing argument, repeatedly and emphatically contrasting the victim's disclosures on these occasions.
To the extent that the defendant separately challenges the prosecutor's argument that the victim's statements during the SAIN interview were more credible than her initial statements to the police, the argument was a fair and appropriate response to the defendant's argument.
Because the challenged testimony was more important to the defense than to the Commonwealth, there was no harm to the defendant; and, as evidenced by the verdicts of acquittal on two of the charges, defense counsel's strategy to highlight inconsistencies in the victim's testimony inured to the defendant's benefit. See id. at 851–852. There was no substantial risk of a miscarriage of justice.
2. Sufficiency of the evidence. The defendant claims that his motion for a required finding of not guilty should have been allowed as to one of the charges of indecent assault and battery, because there was insufficient evidence to establish that he forced the victim to touch his penis on three occasions. We disagree. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence supported three convictions.
The victim testified that the defendant watched her at his house four days per week after school, and that it was part of “the normal routine” for the defendant to force her to touch his penis. More specifically, in the context of explaining what occurred when the defendant watched her after school, the victim testified that the defendant made her “go up and down on his penis” “more than once.” In addition, she testified that the defendant also forced her to touch his penis when she slept over at his house on the weekends.
Based upon the victim's entire testimony, the jury reasonably could find, under appropriate instruction, that the defendant sexually assaulted the victim at least twice on weekdays and once on a weekend. More explicit evidence of specific incidents was not required. See Commonwealth v. Peters, 429 Mass. 22, 23–24 (1999); Commonwealth v. Gichel, 48 Mass.App.Ct. 206, 213 (1999).
The judge instructed the jury that they had to consider each charge separately, and that all jurors had to agree that the defendant committed the particular acts that formed the basis for each conviction.
Judgments affirmed.