Commonwealth v. Robertson

88 Mass.App.Ct. 52

35 N.E.3d 771

COMMONWEALTH

v.Kenville ROBERTSON.

No. 12–P–1084.

Appeals Court of Massachusetts, Norfolk.

Argued March 4, 2015.

Decided Aug. 14, 2015.

Bernard Grossberg, Boston, for the defendant.

Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

Present: TRAINOR, WOLOHOJIAN, & CARHART, JJ.

Opinion

CARHART, J.

The defendant appeals from his convictions of three counts of rape of a child with force, three counts of aggravated rape of a child, three counts of indecent assault and battery on a child under fourteen, and assault with intent to rape a child,

arguing that (1) the motion judge erred in allowing the Commonwealth's motion in limine to present prior bad act evidence, (2) the trial judge erred in allowing prior bad act evidence as evidence at the trial and in his instructions to the jury in this regard, and (3) the trial judge erred in denying his motion for new trial. We affirm.

Background. The jury were presented with the following evidence at trial. The defendant is the biological father of the younger brother of the victim, N.M. Although the defendant did not live with N.M., he had a key to her house and visited often. N.M. called the defendant, “Dad,” and he provided for her financially.¹ In 2004, when N.M. was eight years old, the defendant began sexually abusing her.² The abuse occurred while N.M. and the defendant slept in the same bed, along with N.M.'s mother and brother. N.M. testified that on numerous occasions the defendant performed oral sex on her, engaged in vaginal intercourse, forced her to touch his penis, and touched her breasts, vagina, and buttocks. The defendant warned N.M. that if she reported the abuse “the police would get involved,” and N.M. believed that meant she would be taken away from her family. The abuse continued until N.M. was thirteen years old.

The defendant's biological daughter, J.R., also testified at trial.³ She stated that from around 1990, when she was approximately seven or eight years old, until about 1994 or 1996 (when she was eleven or twelve years old), the defendant sexually abused her.⁴ During that period of time, J.R. and her siblings lived with the defendant while their mother remained in St. Vincent. J.R. testified that the defendant would call her into his bedroom and then force her to perform oral sex on him and to engage in vaginal

intercourse. The defendant would also rub her “chest area.” J.R. reported the abuse to a teacher, and a social worker was sent to visit her at home. Subsequently, the defendant told J.R. that if she continued to report the abuse, she and her siblings would be put in different foster homes and she would never see them again. Afterwards, J.R. recanted her allegations.⁵

Discussion. 1. Prior bad act evidence. “In reviewing the judge's exercise of discretion in a close case such as this, the test is not whether we would have made a different decision.” Commonwealth v. Pillai, 445 Mass. 175, 181, 833 N.E.2d 1160 (2005) (Pillai ). Instead, we will uphold the judge's decision unless “we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.”

L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27, 20 N.E.3d 930 (2014) (citation omitted).

Here, the defendant contends that the motion and trial judges (the judges) abused their discretion in allowing the Commonwealth's motion in limine to permit the defendant's daughter, J.R., to testify that the defendant sexually abused her when she was a child in order to show “the defendant's pattern of conduct, plans, or to corroborate the testimony of the alleged victim [N.M.].” Specifically, the defendant claims that the judges erred because (1) the incidents are factually dissimilar and too remote in time to constitute a pattern of operation, and (2) prior bad act evidence cannot be used to “corroborate” a victim's testimony.⁶ We disagree.

Although the prosecution cannot introduce evidence of a defendant's prior bad acts “for the purposes of showing his bad character or propensity to commit the crime charged,” such evidence may be admissible to show “a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). Prior bad acts involving someone other than the victim are admissible so long as they are “connected ‘in time, place, or other relevant circumstances to the particular sex offense for which the defendant is being tried.’ ” Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 818, 694 N.E.2d 358 (1998), quoting from Commonwealth v. King, 387 Mass. 464, 470, 441 N.E.2d 248 (1982) (King ).

Here, the defendant's claim that the incidents are too factually dissimilar to constitute evidence of a pattern of operation is meritless. First, the circumstances under which the abuse occurred was similar in both cases. Specifically, the defendant was, the motion judge found, a “father-like figure” to the victims and exploited this relationship, along with the victims' financial dependence on him, in order to keep the victims from reporting the abuse. See Pillai, 445 Mass. at 181–182, 833 N.E.2d 1160 (cases factually similar where victims were same age, “away from their homes and dependent on the defendant for parental protection .... [and] [t]he defendant used the same method of access” to the victims); King, supra at 472, 441 N.E.2d 248. The defendant also threatened both victims by telling them that they would be taken away from their families if they reported the abuse. Additionally, the victims were around the same age when the abuse began (seven or eight years old). See Commonwealth v. Aguiar, 78 Mass.App.Ct. 193, 200–201, 936 N.E.2d 16 (2010) (Aguiar ) (cases factually similar where both victims were “between the ages of six and nine” when abused by the defendant); King, supra. Moreover, the sexual abuse was almost identical in nature. In both instances, the defendant had vaginal intercourse with the young girls, engaged them in oral sex,⁷ and touched their prepubescent chests, and each assault occurred almost exclusively in the privacy of the bedroom in which the

defendant slept. See Aguiar, 78 Mass.App.Ct. at 204, 936 N.E.2d 16. In these circumstances, J.R.'s testimony tended to show the defendant's intent and inclination to commit the charged acts and it corroborated the pattern of conduct testified to by the victim. See Commonwealth v. Fleury–Ehrhart, 20 Mass.App.Ct. 429, 431, 480 N.E.2d 661 (1985) ; Hanlon, 44 Mass.App.Ct. at 817, 694 N.E.2d 358. See also Commonwealth v. Bemis, 242 Mass. 582, 585, 136 N.E. 597 (1922). Contrast Commonwealth v. Yetz, 37 Mass.App.Ct. 970, 643 N.E.2d 1062 (1995) (prior consensual incident of statutory rape not probative of conduct that gave rise to forcible rape charge and, thus, was inadmissible).

Likewise, we reject the defendant's claim that the approximately eight-year time period between the incidents renders the evidence too remote.⁸ To be admissible, evidence of sexual assaults with persons other than the victim “must form a ‘temporal and schematic nexus' ” such that it shows a “common course of conduct regarding the victims.” Hanlon, 44 Mass.App.Ct. at 818, 694 N.E.2d 358, quoting from Commonwealth v. Barrett, 418 Mass. 788, 794, 641 N.E.2d 1302 (1994). “There is no bright line test, however, for measuring remoteness.” Hanlon, supra at 819, 694 N.E.2d 358. Indeed, where the uncharged misconduct is, as here, part of a “ ‘continuing course of related events,’ or the conduct is unusual and particularly similar to the charged acts, the allowable time period is greater.” Ibid. Here, because the defendant's pattern of conduct with N.M. and J.R. was distinctly similar, we do not believe the interval of time was too great. See id. at 819–820, 694 N.E.2d 358 (uncharged assaults separated by six and nine years, but intervening period not eventless); State v. John G., 100 Conn.App. 354, 360–365, 918 A.2d 986 (2007) (striking similarity between sexual assaults on defendant's young prepubescent granddaughters rendered evidence admissible despite eight-year gap); State v. Beckham, 145 N.C.App. 119, 121–122, 550 S.E.2d 231 (2001) (fourteen- and twelve-year gaps between two uncharged acts and the crime permissible given “striking similarities”); State v. McCombs, 410 S.C. 90, 99–101, 762 S.E.2d 744 (2014) (uncharged act preceding

crime by eight years not too remote because incidents were similar in that they involved prepubescent girls at the defendant's home). Moreover, the apparent lack of access to N.M. or to J.R. during the intervening period in question bolsters our conclusion that the length of time between the conduct does not render the evidence too remote.⁹ See Commonwealth v. Kater, 432 Mass. 404, 414–416, 734 N.E.2d 1164 (2000) (two “strikingly similar” crimes ten years apart not so temporally remote as to preclude admission of earlier crime where defendant spent most of that time in prison); Aguiar, 78 Mass.App.Ct. at 202, 936 N.E.2d 16 (no error in joinder, as conduct not too remote despite six and one-half year interval between assaults because defendant's ability to abuse victims was “completely dependent on establishing a close relationship with” and having access to them); State v. Jacob, 113 N.C.App. 605, 611–612, 439 S.E.2d 812 (1994) (evidence not too remote where defendant lacked access to daughter after divorce and where other daughter had not yet reached prepubescent age); State v. Hopkins, 698 A.2d 183, 186 (R.I.1997) (ten-year time span between incidents did not render prior bad act evidence involving victims of similar age and relationship and similar modus operandi inadmissible). Indeed, the gap in time reflects the fact that for sex offenders like the defendant who prey on prepubescent girls within their family and household the pool of potential victims is significantly limited. Cf. 803...