Opinion
16-P-994
04-25-2017
COMMONWEALTH v. Francesco SPADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a seven-day trial in the Superior Court, the defendant was convicted of statutory rape, see G. L. c. 265, § 23, and indecent assault and battery on a person fourteen years of age or older, see G. L. c. 265, § 13H. On appeal, the defendant contends that the trial judge made several errors relating to the admission of evidence and the jury instructions. We discern no cause to disturb the judgments and affirm, addressing the defendant's claims in turn.
1. Specific unanimity instruction. The defendant claims that the jury should have received a specific unanimity instruction relating to the indecent assault and battery charge. We disagree. "When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). There was no need for a specific unanimity instruction; the testimony at trial indicated that the defendant touched the victim several times during the same continuing criminal episode. Contrast Commonwealth v. Conefrey, 420 Mass. 508, 514 (1995) (judge erred in not giving requested unanimity instruction where victim testified to eight incidents of indecent assault and battery committed at three different locations on three divers dates). Here, the victim testified that, over the span of an evening, the defendant touched her buttocks when she was near the basement door and inside of the camper, and touched her breasts and inserted his fingers into her vagina when she was in the bottom bunk of the camper. The victim testified that she was in the bottom bunk with the defendant for approximately one hour; the defendant testified that they were in the bottom bunk together for approximately thirty minutes.
For the first time on appeal, the defendant argues that the indecent assault and battery conviction should be vacated because the judge did not instruct the jury on separate and distinct offenses and, as such, the verdicts could have been based on the same conduct. This claim is meritless. "A defendant may be convicted of two offenses for the same act ‘if each statute requires proof of an additional fact which the other does not.’ " Commonwealth v. Thomas, 400 Mass. 676, 681 (1987), quoting from Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972). The judge properly instructed the jury that indecent assault and battery on a person fourteen years of age or older is not a lesser included offense of statutory rape; statutory rape includes the element of penetration, while indecent assault and battery on a person fourteen years of age or older includes the element of nonconsent.
To the extent that the defendant now claims on appeal that the convictions of indecent assault and battery and of statutory rape are duplicative, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Kelly, 470 Mass. 682, 699-701 (2015). As the Commonwealth observes, the clear import of both parties' closings was that the indecent assault and battery indictment referred to the touching of the victim's buttocks or breast. In addition, as the Commonwealth also observes, indecent assault and battery on a person fourteen years of age or older is not a lesser included offense of statutory rape, as the former requires proof of lack of consent and the latter does not. See note 1, supra.
2. Instruction on lesser included offense. The defendant contends that no rational view of the evidence supported the judge's instruction to the jury on statutory rape as a lesser included offense of forcible rape of a child. To the contrary, there was evidence that called into question the element of force that distinguishes forcible rape of a child from statutory rape. See Commonwealth v. Donlan, 436 Mass. 329, 337-338 (2002). The victim texted her friend about the encounter with the defendant in the bottom bunk of the camper and did not mention the use of force. The defendant texted the victim and asked her why she did not pull away from him or leave the bunk. The defendant's friends testified that they heard no outcry or struggle while the victim and the defendant were together in the bunk. Finally, the defendant testified that he did not pull on the victim's wrist while they were in the bunk together. "[I]f on any hypothesis of the evidence, the jury could have found the defendant[ ] guilty of statutory rape, giving an instruction to the jury on this crime is not error." Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).
Most notably, the victim texted her friend, "[T]his is going to sound weird but obviously if he keeps doing it, you get horny, ha ha ha. Sorry, that's so gross."
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3. Denial of accusation. The defendant argues that the judge erred by preventing his trial counsel from eliciting his out-of-court denial of the victim's accusation, in order to explain or to clarify other testimony elicited by the prosecutor from that witness. On direct examination, the Commonwealth questioned the first complaint witness about his conversation, via text, with the victim, in which she made her first complaint. The first complaint witness testified that he relayed this conversation to the defendant and the defendant's reaction "wasn't pleasant." On cross-examination, the defendant attempted to elicit testimony from the first complaint witness to explain his "[un]pleasant" reaction, including the defendant's denial of the accusation. The judge did not err by sustaining the Commonwealth's objection and ending this line of questioning; the defendant was attempting to offer his extrajudicial statement for the truth of the matter asserted, which made the statement inadmissible hearsay. See Commonwealth v. McCowen, 458 Mass. 461, 485-486 (2010). Contrary to the defendant's assertion, the testimony of the first complaint witness describing the defendant's reaction plainly sought admissible demeanor evidence. See Commonwealth v. Dykens, 438 Mass. 827, 839-840 (2003). The testimony accordingly did not "open[ ] the door," McCowen, supra at 486, under the doctrine of "curative admissibility," Commonwealth v. Reed, 444 Mass. 803, 809 (2005). Compare Commonwealth v. Spencer, 465 Mass. 32, 46 (2013).
4. Descriptions of demeanor. The defendant contends that the victim's testimony, describing the defendant as "in shock," "a little nervous," and "sad," was improper lay opinion concerning the defendant's thoughts, tantamount to mind reading, and was not admissible. See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694 (2015). The judge did not err in overruling the defendant's objections to this testimony; the victim's testimony permissibly described the defendant's demeanor, was rationally based on her perception, and was "admissible as a summary description of his emotional, mental or physical condition." Commonwealth v. Shine, 398 Mass. 641, 656 (1986) (quotation omitted). See Mass. G. Evid. § 701 (2017). "The rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description." Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961).
Judgments affirmed.