Commonwealth v. Galvan

99 Mass.App.Ct. 1129

170 N.E.3d 358 (Table)

COMMONWEALTH

v.Jason Ray GALVAN.

19-P-1702

Appeals Court of Massachusetts.

Entered: June 16, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted of rape of a child with force ( G. L. c. 265, § 22A ) (indictment 1), rape of a child aggravated by more than a five year age difference ( G. L. c. 265, § 23A [a ]) (indictment 2), and indecent assault and battery on a child under the age of fourteen ( G. L. c. 265, § 13B ) (indictment 5), the defendant argues on appeal that (1) both rape convictions should be vacated because the judge did not mention the dates of the offenses in his jury instructions; (2) the judge improperly admitted expert testimony on delayed disclosure of a child sexual assault victim; and (3) the doctrine of first complaint should be abolished. We conclude that a verdict must enter for the defendant on the aggravated portion of indictment 2, but that so much of the verdict on indictment 2 as finds the defendant guilty of the lesser-included offense of rape of a child may stand. We affirm the remaining convictions. Because the sentence on indictment 2 was the lead sentence, the case must be remanded for resentencing.

Background. The indictments arose from the defendant's sexual abuse of the victim, his stepchild.² The victim testified that, about once a week for a year when he was five to six years old and his mother was at work, the defendant showered with the victim naked. During the showers, the defendant digitally raped the victim more than once and "grope[d]" him by touching his "genitals," "butt," or "chest area." About eight years after the abuse ended, and after his mother had married and divorced the defendant, the victim disclosed the sexual abuse to his mother. Interviewed by investigators, the defendant admitted that he routinely showered naked with the victim until the victim was six or seven years old. Asked if he might have penetrated the victim's genitals, the defendant admitted, "[u]nintentional, possibly," and "if [he] remembers being washed or being touched, maybe it was me putting too much pressure on that area."

Discussion. 1. Rape convictions. The victim testified that the defendant digitally raped him about once a week between his fifth and sixth birthdays, i.e., between February 2008 and February 2009, and that the rapes "started fairly early on" within that time. The statute criminalizing rape of a child aggravated by age difference,³ G. L. c. 265, § 23A, became effective in the middle of that time period, on October 22, 2008, St. 2008, c. 205, § 2.

The indictment for rape aggravated by age difference alleged that that crime occurred between October 22, 2008, and July 31, 2010. Therefore, to properly convict the defendant of that crime, the jury would have had to find that he raped the victim on or after October 22, 2008, when G. L. c. 265, § 23A, became effective. However, the judge did not instruct the jurors that in order to convict on that crime they had to find that at least one of the rapes occurred after that date. The verdict slip does not include any date of offense,⁴ and the record contains no indication that the indictment was before the jury during deliberation. The Commonwealth concedes that there is a substantial risk that the jury could have convicted the defendant of rape aggravated by age difference for one or more acts he committed before October 22, 2008, when G. L. c. 265, § 23A, became effective. Cf. Commonwealth v. White, 475 Mass. 724, 732 (2016) (substantial risk of miscarriage of justice arose from lack of instruction focusing jury's attention on significance of victim's birth date in light of amendment to statute of limitations). Accordingly, on so much of the indictment as alleges that the rape was aggravated by more than a five year age difference between the defendant and the victim, a verdict must enter for the defendant. So much of the verdict as finds the defendant guilty of the lesser-included offense of rape of a child, G. L. c. 265, § 23, shall stand. See Commonwealth v. Claudio, 484 Mass. 203, 204 n.2 (2020) (noting that statutory rape is lesser-included offense of rape aggravated by age difference).

The defendant argues that the forcible rape of a child conviction should also be vacated as "impermissibly ambiguous," because that indictment alleged that the crime occurred between February 12, 2008, and October 21, 2008, but the judge did not direct the jury's attention to those dates of offense in his instructions. We disagree. Unlike the rape aggravated by age difference statute, the forcible child rape statute, G. L. c. 265, § 22A, was effective during the entire time period of the digital rapes to which the victim testified, from February 2008 to February 2009. The time of offense is not an element of a child sexual assault crime, "so there is no statutory requirement that the Commonwealth allege or prove specific dates or times." Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 573 (2006). Just after the jurors were sworn, the clerk read aloud the indictments, including the language that the forcible child rape indictment covered the period "between February 12, 2008 and October 21, 2008."

This is not a case where the jury was presented with evidence that would warrant a conviction on one theory, but not on another. Contrast Commonwealth v. Rollins, 470 Mass. 66, 78-79 (2014) (vacating conviction for single count of possession of child pornography, where two photographs admitted in evidence, only one of which would support conviction). Rather, each of the two indictments alleged rape during a different time period. Because the judge instructed that the jury must base each conviction on "separate and distinct acts," we are confident that the jury did not base both rape convictions on a single act. See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 754 (2008) ("Convictions of two cognate offenses will be sustained when there is no chance that the finder of fact based the two offenses upon the same act ... that is, where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges"). Contrast Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015) ; Commonwealth v. Rios, 96 Mass. App. Ct. 463, 473 (2019) (absent "separate and distinct act" instruction, assault with intent to rape conviction duplicative of forcible child rapes).

2. Expert testimony. The defendant argues that the judge should not have admitted expert testimony of Dr. Stephanie Block about child victims' tendency to delay disclosure of sexual abuse. The defendant maintains that Dr. Block's testimony "did not assist the trier of fact" and impermissibly vouched for the victim's credibility.

"A trial judge has broad discretion with respect to the admission of expert testimony." Commonwealth v. Dockham, 405 Mass. 618, 628 (1989). "Expert testimony is required when the testimony concerns matters beyond the common knowledge of the jurors and will aid jurors in reaching a decision." Commonwealth v. Berendson, 73 Mass. App. Ct. 395, 399-400 (2008), quoting Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). See Commonwealth v. Hinds, 487 Mass. 212, 220-222 (2021) (discussing application of Daubert-Lanigan test to "soft" sciences). See generally Mass. G. Evid. § 702 (2021). We are unpersuaded by the defendant's contention that the tendency of a child abuse victim to delay disclosure is "within the life experience of the average juror." "Expert testimony that abused children often delay reporting the abuse, a familiar and permitted proposition at least since Dockham, informs the jury that the victim's failure to disclose in a timely fashion does not necessarily exonerate the defendant without suggesting that the particular child witness in the case was or was not abused." Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 375-376 (2003). Accordingly, we discern no abuse of discretion in the judge's ruling to admit Dr. Block's testimony.

Nor did Dr. Block's testimony vouch for the credibility of the victim. Dr. Block testified that she had never met the victim and knew nothing about the facts of this case. Contrast Commonwealth v. Quinn, 469 Mass. 641, 647-648 (2014) (risk of improper vouching "especially acute" where expert treated victim). On direct examination, Dr. Block testified that research shows that it is very common for a child who has been sexually abused to delay disclosure; a child may delay disclosure for "decades," or may...