Opinion
20-P-1098
01-25-2022
COMMONWEALTH v. David CEDILLOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of six counts of indecent assault and battery on a child under the age of fourteen, aggravated rape of a child, assault with intent to rape, posing and photographing a child in a state of nudity, and disseminating obscene material to a minor. On appeal, the defendant argues that the evidence was insufficient to prove (1) that he posed and photographed the victim "in a state of nudity," see G. L. c. 272, § 31, and (2) that he committed an attempted battery as the Commonwealth alleged to support his conviction for assault with intent to rape. Additionally, he contends that the trial judge abused his discretion in permitting the Commonwealth to introduce certain photographs of the victim at trial, and in allowing the victim to hold a piece of string while testifying. Finally, the defendant argues that the prosecutor made improper remarks during closing argument. We affirm.
Based on the existence of an age difference of more than five years between the defendant and the victim. See G. L. c. 265, § 23A (a ). The victim was the granddaughter of the defendant's wife.
The Commonwealth filed a nolle prosequi as to a second indictment for assault with intent to rape.
1. Sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, we "consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
At the close of the Commonwealth's case, the defendant moved unsuccessfully for a required finding of not guilty as to the indictment for assault with intent to rape. He did not move for a required finding on the indictment for photographing the victim in a state of nudity. We review the waived claim on appeal, however, because "a conviction premised on legally insufficient evidence always creates a substantial risk of a miscarriage of justice." Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792 n.4 (2000).
We turn first to the defendant's conviction for posing and photographing a child in the nude. The elements of that offense are "(1) knowledge that the person posed is under age eighteen; (2) causing the child to pose in a state of nudity, defined in G. L. c. 272, § 31,[ ] ... to include ‘uncovered ... human genitals[ ][or] pubic areas’; (3) a purpose of representation or reproduction in any visual material; and (4) lascivious intent." Commonwealth v. Lawrence, 68 Mass. App. Ct. 103, 104 (2007). See G. L. c. 272, § 29A (a ). On appeal, the defendant challenges only the sufficiency of the evidence that the victim was "in a state of nudity" when he posed and photographed her. Applying the Latimore standard, we are not persuaded.
That section provides, in relevant part, " ‘Nudity’, uncovered or less than opaquely covered human genitals, pubic areas, the human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state." G. L. c. 272, § 31.
The victim testified that while she was naked, the defendant had her put on a sheer white dress, "pull [it] tight against [her] backside," and turn her back to him; he then posed her by having her either "stick out [her] butt" or bend over as he photographed her from behind. Crediting that testimony, the jury could have inferred that the defendant posed the victim such that her genitals -- and not, as the defendant contends, only her buttocks -- were visible between her legs and through the sheer fabric of the dress. See Commonwealth v. Alicea, 464 Mass. 837, 852-853 (2013), quoting Commonwealth v. Linton, 456 Mass. 534, 544 (2010) ("In reviewing the sufficiency of the evidence, we keep in mind that the evidence relied on to establish a defendant's guilt may be entirely circumstantial ... and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable’ "). The evidence that the defendant posed the victim "in a state of nudity" was sufficient to allow the jury to find that contested element beyond a reasonable doubt.
The defendant's challenge to the sufficiency of the evidence of assault with intent to rape is likewise unavailing. The elements of the offense are, first, that the defendant committed an assault upon the victim; and second, that he acted with the specific intent to rape her. Commonwealth v. Oliveira, 53 Mass. App. Ct. 480, 482 n.5 (2002). In proving the first element -- assault -- the Commonwealth proceeded on a theory of attempted battery. See Commonwealth v. Porro, 458 Mass. 526, 530 (2010) (theories of assault include attempted battery and threatened battery). The defendant's appellate challenge is limited to the sufficiency of the evidence of that attempted battery. Where the victim testified that on more than one occasion, the defendant "push[ed] [his penis] against [her] anus," causing her to bleed from her anal area, the evidence was plainly sufficient to establish an assault. See Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 786 (1989) (child victim's testimony that defendant's penis was touching her "bum" and "private spots" permitted jury to infer that defendant had penetrated victim).
2. Photographs of victim. The victim was fifteen years old at the time of trial; there was evidence that the defendant had abused her from the time she was in the second grade. At trial, the Commonwealth sought to introduce three photographs of the victim depicting her at the ages of approximately seven, eight, and ten years old. The defendant objected, arguing that the victim's age -- which was an element of several of the crimes for which the defendant was on trial -- was "an uncontested issue," rendering the photographs "not necessary," and that because introduction of the photographs "would elicit sympathy," their prejudicial effect outweighed their probative value. The trial judge admitted the photographs over the defendant's objection. Whether to admit such photographs "is determined in the sound discretion of the trial judge," Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999), and to the extent that we discern an abuse of that discretion, we review for prejudicial error. See Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018), quoting Commonwealth v. Nardi, 452 Mass. 379, 396 (2008).
"Evidence is relevant if it has a ‘rational tendency to prove an issue in the case.’ " Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), quoting Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977). As the judge here observed, the victim's age was an element of nearly all the crimes charged against the defendant. Specifically, the Commonwealth was obligated to prove beyond a reasonable doubt that at the time of the indecent assault and battery on the victim, she was under the age of fourteen, see G. L. c. 265, § 13B ; at the time of the rape, the victim was under the age of twelve, see G. L. c. 265, § 23A (a ) ; and that when posed and photographed in a state of nudity, the victim was under the age of eighteen. See G. L. c. 272, § 29A (a ). The photographs, depicting the victim during the period during which the abuse took place, were relevant because they were probative of her age. The fact that there was other evidence of the victim's age does not render the photographs inadmissible. See Commonwealth v. Pena, 455 Mass. 1, 12 (2009) (photograph admissible even though cumulative of other evidence). Further, we discern no abuse of discretion in the judge's implicit conclusion that there was nothing unduly prejudicial about the photographs themselves. See Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 379 (2015) (holding probative value of school portraits of child sexual assault victim outweighed any prejudicial effect where photographs depicted victim at relevant times). Accordingly, we discern no abuse of discretion in the trial judge's admission of the disputed photographs. See DeSouza, 428 Mass. at 670.
Additionally, we note that the prosecutor did not refer to the photographs in her closing, and the judge instructed the jury that emotion or sympathy for one side or the other had "no place in [jury] deliberations." See Commonwealth v. Gordon, 422 Mass. 816, 827-831 (1996) (prosecutor's improper appeal to juror sympathy during opening statement, presentation of testimony, and closing argument did not prejudice defendant where judge explicitly instructed jury not to base decision on sympathy for victims).
3. Victim's holding string while testifying. "Judges have considerable latitude in devising procedures and modifying the usual rules of trial to accommodate child and other witnesses with special needs, so long as the defendant's fair trial rights are not violated." Commonwealth v. Brusgulis, 398 Mass. 325, 332 (1986). Here, the accommodation at issue was the victim's ability to hold a string in her hand while testifying. The defendant objected on the grounds that allowing her to do so would "infantilize[ ] her and cause[ ] unnecessary sympathy for [her]." After receiving assurances from the prosecutor that the string would not be held in a way that would be visible to the jurors, the judge overruled the objection, subject to the defendant's ability to renew his objection if the string were displayed in a way that prejudiced him. We discern no abuse of discretion in the judge's ruling, which reflected a thoughtful weighing of the victim's needs against any potential that her use of the string would distract the jurors or unfairly influence the jury against the defendant. Even if that were not the case, however, there was no prejudice where, as the judge noted and the defendant did not dispute, based on the placement of a large video screen in front of the witness box, the jurors were unlikely to have seen either the victim's hands or anything in them as she testified.
At one point during the victim's direct examination, the defendant objected that "the witness is playing with the string visibly to the jury," and asked that the victim be told to put the string out of the jury's line of sight. The judge responded that "[he had] been keeping an eye on that," that the string was "hardly visible," and that "[he did not] see the display as significantly as [counsel] apparently [did]."
4. Prosecution's closing argument. The defendant argues that the prosecutor's closing argument was improper in several respects. "When determining whether error in a prosecutor's closing argument requires reversal, ‘[a reviewing court considers] (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion.’ " Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). We are largely unpersuaded that the prosecutor overstepped the bounds of proper argument; to the extent that we discern error, we are not persuaded that the errors either individually or collectively require reversal.
We first consider the defendant's contention that the prosecutor's closing included misstatements of fact. As the Commonwealth concedes, the prosecutor misspoke when she argued that a Commonwealth expert on memory, Stephanie Block, "explained t[o] [the jury]" why the Commonwealth's witnesses did not recall that, as the victim testified, the defendant and the victim were alone together from time to time, providing opportunities for the defendant to abuse her. The error does not require reversal. The defendant did not object to the statement, it was limited to a single reference in an argument that spanned more than twelve pages of transcript, it went to a collateral matter and not to the heart of the case, and the judge clearly instructed the jury that closing arguments were "neither evidence nor a substitute for evidence." Compare Lewis, 465 Mass. at 130-131.
As to the defendant's remaining challenges framed as misstatements of fact, we are not persuaded. The prosecutor's argument was otherwise grounded in the evidence at trial and the reasonable inferences drawn from it. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017) (counsel may argue evidence and reasonable inferences, which "need not be necessary, or inescapable; they only need be reasonable and possible").
Second, we address the defendant's claim that the prosecutor erred when she commented upon the credibility of two witnesses, the victim and the victim's grandmother (who was married to the defendant). With respect to the victim's testimony, the prosecutor said, "[w]hen [the victim] was answering questions in this room no one had a single doubt that she was telling the truth." Later, in a parallel vein, the prosecutor argued that the jury "cannot credit [the grandmother's] testimony. You cannot find her credible." Taken out of context, these remarks sailed close to the boundary of proper argument by suggesting that the jury should consider the prosecutor's personal belief about those witnesses’ credibility. See Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008). To the extent that they were improper, however, we are not persuaded that they prejudiced the defendant. See Lewis, 465 Mass. at 130-131. We consider that the defendant made timely objections to both statements, and that the argument went to the credibility of the witnesses -- a critical issue in the trial. Although the judge did not give a specific curative instruction, he did instruct the jury fully about their role as arbiters of credibility. Ultimately, taking into account the "entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial," Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984), we are satisfied that the jury would have understood the prosecutor to have been arguing that the victim was credible based on the victim's clear and detailed recall of the defendant's abuse, and that the victim's grandmother, based on her divided loyalties to the victim and the defendant, was not.
Third, the defendant argues that the prosecutor disparaged defense counsel when she referred to portions of his closing argument as "ridiculous" and "insulting." In his summation, defense counsel argued "the biggest and most important thing [the jury] heard, is that [the victim] testified she was with David Cedillos alone on several occasions in the home." He then attacked the credibility of the victim's testimony on this point by arguing that none of the victim's three brothers, all of whom testified at trial, remembered being locked out of the areas in which the abuse took place. While there is no question that the prosecutor's response to this argument was excessive and better left unsaid, we view the statements as mere rhetoric, and presume the jury did the same. See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).
While we appreciate the practical challenges of fine-tuning a closing argument in the heat of the moment, we emphasize that challenges of this type are entirely avoidable by, for example, asking the jury to question whether the opponent's position is plausible, given the state of the trial evidence.
Finally, in context, we are not persuaded that the prosecutor improperly appealed to the jury's sympathy by urging them to "return a verdict that holds [the defendant] accountable for all of his actions." The absence of an objection to the remark suggests that counsel did not perceive any prejudice. Furthermore, the statement was a single reference made in the course of an argument which, as we have noted, covered more than twelve pages. See Lewis, 465 Mass. at 130-131. We conclude that the statement was not a plea to the jury to convict the defendant based on passion or sympathy, but a summary of the prosecutor's argument that based on the credible evidence, the Commonwealth had proven the defendant's guilt beyond a reasonable doubt, and that the jury was justified in returning verdicts of guilty. Compare Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002) ("It is not improper ... for a prosecutor to argue that a defendant should be held accountable for his actions"), with Commonwealth v. Torres, 437 Mass. 460, 465 (2002) (improper for prosecutor to ask jury to answer victim's calls to her dead father for justice by holding defendant accountable).
Even if the statement were improper, it did not create any substantial risk of a miscarriage of justice, particularly given the judge's emphatic instruction to the jury about their obligation to decide the case free of bias or sympathy. See Commonwealth v. Miller, 457 Mass. 69, 80 (2010).
Judgments affirmed.