Commonwealth v. Dobbins

96 Mass.App.Ct. 593

136 N.E.3d 736

COMMONWEALTH

v.Jeffrey DOBBINS.

No. 18-P-456

Appeals Court of Massachusetts, Hampden..

Argued September 16, 2019

Decided November 25, 2019

Michael P. Gerace, Worcester, for the defendant.

Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.

Present: Kinder, Sacks, & Shin, JJ.

SHIN, J.

After a jury trial in Superior Court, the defendant was convicted of rape of a child with force, assault of a child with intent to rape, and two charges of indecent assault and battery on a person fourteen years of age or older ( G. L. c. 265, § 13H ). We consolidated the defendant's direct appeal with his appeal from the order denying his motion for a new trial. In the consolidated appeal, the defendant argues that his convictions of indecent assault and battery should be reversed because the evidence was insufficient to establish that the victim was fourteen years of age or older at the time of the assaults, that the judge abused his discretion by allowing a lay witness to testify that the victim has a learning disability, and that a new trial is warranted because defense counsel was constitutionally ineffective. We conclude that proof that the victim "has attained age fourteen" is not required to sustain a conviction of indecent assault and battery under G. L. c. 265, § 13H, so any failure of proof in that regard is not a basis to reverse the defendant's convictions. Discerning no merit to the defendant's remaining arguments, we affirm.

Background. The jury could have found the following facts. The victim was sixteen years old at the time of trial. She had been living with her grandmother, her legal guardian, since she was young but visited her mother at her apartment approximately once or twice per month. The mother has five other children, two of whom lived with her; the other three lived with their father. When the victim stayed overnight at the mother's apartment, she usually slept on the sofa in the downstairs living room or on the floor of the mother's upstairs bedroom. The defendant and the mother were dating, and he stayed overnight at the apartment on a regular basis.

The defendant sexually assaulted the victim multiple times when she was "[t]hirteen, fourteen" years old.¹ On several nights when the victim was sleeping in the living room, the defendant would approach the victim, ask her to "suck his dick," and then force her mouth open with his hands and insert his penis. The victim estimated that this happened twenty to twenty-five times.

The defendant also assaulted the victim in the mother's bedroom. After the mother fell asleep, the defendant would reach down to where the victim lay on the floor and touch her breasts and vaginal area over her pajamas. The victim testified that this happened "[a] few times."

Discussion. 1. Indecent assault and battery convictions. General Laws c. 265, § 13H, provides in relevant part that "[w]hoever commits an indecent assault and battery on a person who has attained age fourteen shall be punished." Citing the statute and Instruction 6.500 of the Criminal Model Jury Instructions for Use in the District Court (2009) (in effect at the time of trial),² the defendant contends that the Commonwealth was obliged to prove as an element of § 13H that the victim had "attained age fourteen" when the assaults occurred. We conclude to the contrary that § 13H does not require such proof.

"Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ " Commonwealth v. Brown, 479 Mass. 600, 606, 97 N.E.3d 349 (2018), quoting Sheehan v. Weaver, 467 Mass. 734, 737, 7 N.E.3d 459 (2014). Thus, "[w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable." Brown, supra, quoting Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 (1982). Rather, we will "assume the Legislature intended to act reasonably." Commonwealth v. Muir, 84 Mass. App. Ct. 635, 640, 999 N.E.2d 1098 (2013), quoting School Comm. of Essex, supra.

The Legislature enacted § 13H through St. 1980, c. 459, entitled "An Act Providing Graduated Penalties and Victim Compensation for the Crime of Rape and Related Offenses." At the same time, the Legislature amended G. L. c. 265, § 13B -- which criminalizes indecent assault and battery on a child under the age of fourteen -- by, among other things, increasing the penalties applicable to that offense. Under § 13B an indecent assault and battery on a child under the age of fourteen is punishable by up to ten years in State prison. In contrast, under § 13H, an indecent assault and battery on a person fourteen years of age or older is punishable by up to five years in State prison.

Considering these statutory provisions together, we think it apparent that the language "on a person who has attained age fourteen" in § 13H was intended to differentiate that crime from the crime of indecent assault and battery on a child under age fourteen. It was not intended to create an element that the Commonwealth must prove beyond a reasonable doubt. Were we to conclude otherwise, it would mean that a defendant in a case such as this would avoid prosecution altogether solely because of the victim's inability to recall with certainty whether she was under or over the age of fourteen at the time of the offense.³ We are confident that the Legislature did not intend to create such an anomaly.

We addressed a similar question of statutory construction in Muir, 84 Mass. App. Ct. at 639-641, 999 N.E.2d 1098. At issue there was subsection 1 of G. L. c. 90, § 24 (2) (a1/2 ), which punishes whoever, while operating a motor vehicle on a public way, leaves the scene of an accident "after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person." We concluded that "not resulting in the death of any person" is not an element of subsection 1, but instead was intended to differentiate subsection 1 from subsection 2, which makes it a felony to leave the scene of an accident involving death with the intent of avoiding prosecution or evading apprehension. Muir, supra at 640, 999 N.E.2d 1098. A contrary reading, we reasoned, would lead to the unreasonable result that it would be a criminal offense to leave the scene of an accident causing injury (but not death) regardless of the purpose for leaving, but lawful to leave the scene of an accident causing death if the purpose for leaving was not to avoid prosecution or evade apprehension. See id. at 640-641, 999 N.E.2d 1098. See also Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 197 & n.7, 122 N.E.3d 1078 (2019) ("no person lawfully therein being put in fear" not element of G. L. c. 266, § 18, but rather "a means by which to distinguish § 18 from the more serious crime" of G. L. c. 266, § 17, which does require proof of person "being put in fear").

Likewise here, we decline to ascribe to the Legislature an intent that would lead to an unreasonable result. We thus conclude that the Commonwealth was not required to prove that the victim was age fourteen or older to sustain the convictions of indecent assault and battery under § 13H. The jury instruction, which erroneously added to the Commonwealth's burden of proof, does not change our conclusion. "A jury instruction that ‘add[s] elements to the government's burden of proof beyond those required by statute ... may not become the law of the case’ if it is ‘patently incorrect.’ " Commonwealth v. Buttimer, 482 Mass. 754, 766 n.17, 128 N.E.3d 74 (2019), quoting United States v. Zanghi, 189 F.3d 71, 79 (1999), cert. denied, 528 U.S. 1097, 120 S.Ct. 839, 145 L.Ed.2d 705 (2000). Instead, we must look to "the elements of the charged crime," not "the erroneously heightened command in the jury instruction" in assessing the sufficiency of the evidence. Buttimer, supra, quoting Musacchio v. United States, ––– U.S. ––––, 136 S. Ct. 709, 715, 193 L.Ed.2d 639 (2016).⁴

2. Testimony about victim's learning disability. The defendant next argues that the judge abused his discretion by allowing the grandmother to testify, over the defendant's objection, that the victim had "an individual educational plan, focusing on her learning specifically because she has a learning disability." In particular, the defendant argues that the grandmother's testimony constituted improper lay opinion and that the fact of the victim's learning disability was exculpatory evidence that the Commonwealth should have disclosed before trial. We disagree on both counts.

The testimony was not improper lay opinion. As established at trial, the grandmother was involved with the victim since her birth, was the victim's legal guardian, and was "very involved in her education." That the victim had an individualized education plan because she has a learning disability was not an opinion based on "scientific, technical, or other specialized knowledge" necessitating an expert. Mass. G. Evid. § 701(c) (2019). Rather, the judge was within his discretion to admit the testimony as a statement of observed fact. See Commonwealth v. Bonds, 445 Mass. 821, 830 n.14, 840 N.E.2d 939 (2006) ("The mother, who obviously had intimate and lengthy experience caring for [the victim], was well situated to explain to the jury how [she] was affected by her disease"); Parker v. Boston & Hingham Steamboat Co., 109 Mass. 449, 451 (1872) ("The witness had the means of observing the plaintiff from time to time, and her testimony was as to facts within her observation and not a mere expression of opinion reached by a process of reasoning and deduction").

Nor was the fact of the victim's learning disability exculpatory evidence that the Commonwealth had to disclose. The defendant contends that, had he known of the evidence, he could have potentially called an expert to testify that the victim's learning disability was unrelated to her difficulties recalling time frames, which he says...