Opinion
21-P-444
03-28-2022
COMMONWEALTH v. Hassan ASHRAF.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, the defendant was convicted of enticement of a child. Because we are satisfied that (1) the evidence at trial was sufficient to establish that, at least, the defendant sought to persuade the thirteen year old victim to come to his home for the purpose of touching her breasts, and (2) even assuming that the judge erred in admitting, over the defendant's objection, the victim's unanticipated testimony about certain statements the defendant made to her, the admission of that testimony does not require reversal, we affirm.
Discussion. 1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Cordle, 412 Mass. 172, 175 (1992), the judge could have found that the thirteen year old victim was alone and waiting for a bus at approximately 2 P.M. when the defendant arrived at the bus stop. The victim, who did not have her cell phone with her, asked the defendant for the time and after the defendant answered, walked away from him. The defendant followed her, asking her name, age, and ethnicity; she told the defendant her name, that she was thirteen, and that she was Brazilian. The defendant responded, "Oh, you don't look like you're [thirteen].... Because of your boobs." After making additional statements to the victim, discussed infra, the defendant told the victim that he wanted to go out with her and her friends, and that "he wanted to touch [her] boobs." The victim was afraid to leave the bus stop for fear that the defendant would follow her; she planned to call the police once she was away from the defendant, and so gave the defendant her telephone number in hopes that doing so would help the police to find him.
When the defendant left the bus stop, the victim ran to a friend's house and reported these events to her friend's mother, who called the police. Police officers arrived at the victim's home. In the meantime, the defendant tried to call the victim through her cell phone four times and sent a text message to the victim. Later that night, at the direction of the police, the victim called the defendant. During that call, which was audible to the victim, her mother, and a police officer, the defendant arranged for the victim to meet him at a specific address, telling her that he would take her from the meeting place to his apartment. During the conversation, the defendant asked the victim in a "provocative" voice "if she was going to come over and rape him." When confronted by the police, the defendant told them that he thought the victim was fifteen years old.
"[T]he crime of child enticement is complete when an individual, possessing the requisite criminal intent [to commit certain sexual or violent crimes], employs words, gestures, or other means to entice (or lure, induce, persuade) someone who is under the age of sixteen, or whom the actor believes is under the age of sixteen, to enter or remain in a vehicle, dwelling, building, or outdoor space." Commonwealth v. Buswell, 468 Mass. 92, 103 (2014), quoting Commonwealth v. Disler, 451 Mass. 216, 222 (2008). See G. L. c. 265, § 26C. On appeal, the defendant challenges only the sufficiency of the evidence that he attempted to "solicit sexual acts from" the victim.
At trial, the Commonwealth argued that the evidence was sufficient to establish any one of four different crimes -- indecent assault and battery on a child, rape and abuse of a child, assault on a child with the intent to commit rape, and unnatural act with a child -- as the predicate for the enticement charge.
The defendant does not dispute the sufficiency of the evidence that he knew the victim was under 16, or that the defendant "attempted to invite [the victim] to his apartment" -- an action that satisfies two elements of the statute: "enticement" into a "dwelling." See G. L. c. 265, § 26C (a ) (defining "entice" to include "invite").
The trial evidence was sufficient to establish this element; at a minimum, it permitted the judge to find that the defendant invited the victim to come to his apartment for the purpose of touching the victim's breasts. Indeed, where the victim testified that within twenty minutes of encountering her at the bus stop, the defendant commented on the size of her breasts, told her that he "wanted to go out with her," and "said that he wanted to touch [her] boobs," there was little, if any, inferential leap required for the judge to conclude that that was the purpose of the defendant's invitation. See Commonwealth v. Lahens, 100 Mass. App. Ct. 310, 319 (2021), citing Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (inferential proof of intent "need only be reasonable and possible; it need not be necessary or inescapable"). This evidence, in turn, was sufficient to show the defendant's intent to commit an indecent assault and battery on the victim, see Commonwealth v. Pillai, 445 Mass. 175, 192-193 (2005), and hence, to satisfy the challenged element of the crime of enticement of a child. See G. L. c. 265, § 26C (b ) (including indecent assault and battery on child, G. L. c. 265, § 13B, as predicate offense for crime of enticement of child). See also G. L. c. 265, § 13B (child under fourteen "deemed incapable of consenting to any conduct" prosecuted as indecent assault and battery).
Although, generally, "we consider even improperly admitted evidence" in determining questions of sufficiency, see Commonwealth v. Uriah U., 100 Mass. App. Ct. 281, 286-287 (2021), given our conclusion that the unchallenged evidence we have summarized, supra, is sufficient to sustain the defendant's conviction, we need not do so. Likewise, we need not and do not consider the sufficiency of the evidence supporting the remaining predicate crimes on which the Commonwealth relied at trial.
2. Failure to disclose statements. At trial, the victim testified to two questions and a statement she attributed to the defendant but of which the prosecutor had not been aware, and which were not disclosed in advance to the defendant. On direct examination, the victim testified that the defendant asked her, "Oh, how are Brazilian dicks?" and whether the victim's friend "had big boobs like [the victim's]," and told her that "[he] heard that Chinese dicks are really small." The defendant objected to these statements on the grounds of unfair surprise. See Mass. R. Crim. P. 13, as appearing in 442 Mass. 1516 (2004). Although the judge admitted this evidence over the defendant's objection, in doing so he noted that the defendant "[was] absolutely entitled to notice of statements from [the] defendant" and, taking into account that the case was being tried jury-waived, told the parties that he "certainly [would] consider that [the evidence had not been provided in advance] when the time comes."
Reviewing the judge's evidentiary ruling for an abuse of his broad discretion, we discern none. See Commonwealth v. Andre, 484 Mass. 403, 414 (2020), and cases cited. The new evidence did not provide the Commonwealth with a new theory of the case, the basis for a new charge, or even (as we discuss below) new information supporting its existing theories. See Pillai, 445 Mass. at 188, quoting Commonwealth v. Amirault, 404 Mass. 221, 234 (1989) ("Even when the bill of particulars and the evidence at trial contrast as to an element or theory of the crime charged, relief is warranted only on a showing that the bill of particulars failed to provide the defendant with ‘notice to prepare his defense’ ").
Even were we to conclude that the judge abused his discretion in admitting the disputed evidence, however, we discern no prejudice. See Commonwealth v. Kelly, 470 Mass. 682, 687-688 (2015) (prejudicial error standard applicable to preserved claim of error). The disputed statements could only have been relevant to the defendant's intent to commit one of the sex-related crimes enumerated in G. L. c. 265, § 26C. As such, they were cumulative of (and in our view, less damning than) the defendant's admissible and unchallenged statements that he "wanted to go out with [the victim]," and "wanted to touch [her] boobs." The Commonwealth's case was sufficient, and the judge's comments that he would "certainly consider" the potential for unfair surprise was the equivalent of a strong curative instruction. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002) (appellate court presumes judges in jury-waived trials "[will] have correctly instructed [themselves] as to the manner in which evidence was to be considered in [their] role as factfinder"). Despite the Commonwealth's repeated reference to the disputed statements in closing (an approach we consider imprudent in this circumstance), we are satisfied that on balance, the defendant was not prejudiced by the admission of the questions and statement at issue. See Commonwealth v. Rodriguez, 92 Mass. App. Ct. 774, 780 (2018) (factors considered in assessing claim of prejudicial error).
3. Motion for new trial. After trial, the defendant filed a motion for new trial on the grounds that, when he chose to waive his right to a jury trial, he relied on having full disclosure of all statements attributed to him by the victim. The motion was not supported by an affidavit of the defendant or trial counsel, see Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). We discern no abuse of discretion in the judge's denial of the motion. The defendant's reliance on United States v. Liburd, 607 F.3d 339, 346 (3rd Cir. 2010), cited in his brief, is readily distinguishable from this case, and does not persuade us otherwise.
Although the parties assert a hearing was held on the motion, it does not appear that a transcript of the hearing, which may have been non-evidentiary, was prepared, nor has this court been provided with a copy. In addition, despite the lack of a docket entry indicating the motion was denied, we presume that it was, and the appeal therefrom is properly before us.
Judgment affirmed.
Order denying motion for new trial affirmed.