Opinion
17-P-457
04-16-2019
COMMONWEALTH v. SEBASTIAO DASILVA
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sebastiao Dasilva, appeals from his convictions for rape of a child with force, assault with intent to rape, and indecent assault and battery on a child under fourteen years of age. He presents three arguments on appeal: first, that there was insufficient evidence to substantiate the force element in the rape of a child with force conviction; second, that he was improperly barred from pursuing a line of questioning regarding the victim's sexual orientation; and third, that the opening statement from the prosecutor was improperly argumentative. We affirm.
Background. The jury could have found the following facts based on the evidence presented. The defendant was close friends with the victim's mother and stepfather, and moved in with the family when the victim was in third grade. Initially, the victim and the defendant were friendly and would "hang out" around the apartment, horse-playing and tickling each other "like a normal adult would do with kids." The relationship began to change, however, when the defendant first touched the victim's backside. Though she thought nothing of it at the time, that was her first memory of the defendant's questionable touching. Her next memory of the defendant's inappropriate touching occurred when the defendant slid his hands against her breasts while they were in the kitchen area of the apartment. This incident shocked and scared the victim. Nevertheless she did not report it to her mother "'cause he was my mom's friend and my step-dad's. I didn't want her -- I didn't want her to be upset." The encounters between the victim and the defendant became "daily." Although the victim told her younger sister that the defendant "swiped his hand" over her breasts, she also told the sister not to tell anyone because she was scared that their mother would be angry. The defendant moved out of the apartment after roughly one year.
When the victim was in fifth grade, the family relocated to another apartment. Subsequently her mother and stepfather separated and the defendant again moved in with the mother and the victim. The defendant's abuse resumed and escalated in the new apartment. On a "daily" basis, he would squeeze the victim's breasts and "swipe" at the victim's vagina. In one instance, while the victim was sleeping face down on the floor of the living room, she awoke to the defendant on top of her, rubbing his erect penis on her back. The defendant attempted to use his legs to open the victim's legs, but the victim resisted. The defendant then flipped the victim over while she pretended to sleep, pulled her shirt up, and licked her breasts. On another occasion, the victim was using the computer when the defendant approached her with his pants down and his penis erect. He grabbed the victim's head and pushed it toward his penis. After she pushed herself away, she told the defendant that she was going to tell her mother about his abuse. The defendant threatened to kill her mother if the victim informed her.
In yet another encounter, the victim was lying on her bed in her mother's bedroom playing video games while her mother was in the shower in a nearby bathroom. The defendant came into the room and said, "Let me taste." The victim was confused, but the defendant pulled down the victim's pajama pants and underwear, then proceeded to lick the victim's vagina. The victim tried to ignore what was happening and continued to play video games during the course of the rape. Scared, confused, and feeling "gross," the victim did not say anything. When the victim heard the mother's shower stop, the defendant pulled up the victim's pants and left the room.
The victim testified that she had her own bed in her mother's bedroom.
Eventually when the victim was fourteen years old, she disclosed to two friends that she had been sexually abused by the defendant. The victim's friends brought the victim, crying, to tell her mother. The mother then told the victim to speak with her school guidance counselor. The guidance counselor reported the abuse to the school resource officer, who contacted a detective with the Haverhill Police Department. The defendant was subsequently indicted.
Before the trial commenced, the Commonwealth filed a motion in limine to exclude any reference to the victim's sexual orientation. The defendant objected to the motion, claiming that the victim may have been motivated to fabricate the allegations against the defendant in order to persuade her mother, who was very religious, to accept the victim's sexual orientation. The motion was allowed and references to the victim's sexual orientation were excluded. The judge determined that even if this issue were relevant, it "could inflame the passion of the jury . . . and it could unfairly prejudice the Commonwealth."
The Commonwealth's motion stated that the victim's counseling records showed "that the victim struggled with her sexual orientation after disclosing the sexual assaults." The Commonwealth argued that such information was irrelevant and "would only be used to attempt to embarrass the victim." The counseling records were not provided.
At trial, the prosecutor's opening statement characterized the defendant's entrance into the victim's life as "a wolf in sheep's clothing," stating that the defendant "prey[ed] on [the victim] until she was approximately thirteen years old," and that the victim was "frozen in fear" when the defendant assaulted her in her mother's bedroom. The defendant's objection to these characterizations was overruled. At the conclusion of the trial, the jury found the defendant guilty of all charges. The defendant timely appealed.
The judge sentenced the defendant to concurrent terms of nine to twelve years for the rape of a child with force and assault with intent to rape convictions. For the indecent assault and battery on a child under fourteen years old charges, the defendant received five years of probation with special conditions from and after the prison sentence.
Discussion. 1. Insufficient element of force. The defendant, who filed a motion for a directed verdict at the close of the Commonwealth's case, argues that the Commonwealth did not meet its burden of proof regarding the force required to support a conviction for the offense of rape of a child by force. See G. L. c. 265, § 22A. When assessing the sufficiency of the evidence, "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged . . . ." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "To convict a defendant of rape, the Commonwealth must prove that the defendant compelled the sexual intercourse 'by force or threat of force and against the will of the victim.'" Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 193 (2013), quoting Commonwealth v. Lopez, 433 Mass. 722, 726 (2001).
Here, the Commonwealth satisfied its burden. The Commonwealth introduced evidence that the defendant "pulled down" the victim's pajama pants and underwear, "opened [her] legs," and orally raped the victim. Additionally, the victim testified that she was afraid that "if [she] like moved or told him to get off . . . he would react in a certain type of way." See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255 (2008) ("Actual force was also present in the oral rapes, where the defendant pulled the victim's legs apart and positioned himself against her spread legs while he engaged in oral sex"). Cf. Oquendo, 83 Mass. App. Ct. at 193. Viewed in the light most favorable to the Commonwealth, there was sufficient evidence for the jury to conclude that the defendant used force upon the victim in order to effectuate the rape.
As such, we need not delve into the sufficiency of the instruction regarding constructive force.
2. Sexual orientation evidence. The defendant next argues that the judge committed prejudicial error by precluding the victim from being cross-examined about her sexual orientation. Rulings on a motion in limine "are left to the sound discretion of the trial judge, and we review only for abuse of that discretion." Commonwealth v. Arrington, 455 Mass. 437, 441 n.6 (2009). "Whether proffered 'evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error'" (citation omitted). Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).
Here, the defendant's proffer failed to show that the victim's sexual orientation had relevant bearing on a motive to lie. According to the defendant's counsel, it was the victim's counselor who told the victim that suffering through sexual abuse makes it understandable that she, the victim, might question her sexual identity. To be clear, the victim began counseling after making the allegations leveled against the defendant. There is no evidence that suggests the victim was questioning her identity prior to making the disclosure of abuse. As such, there was no abuse of discretion in the judge's decision to exclude the sexual orientation line of questioning.
3. Opening statement. Lastly, the defendant argues that the prosecutor's opening statement veered into impermissible argument. In particular, he challenges the characterization that the victim "was approximately six or seven years old when the defendant came into her life like a wolf in sheep's clothing; because, as he played the family friend, the boarder, the roommate of her mother, he was preying on [the victim] until she was approximately thirteen years old." He also challenges the prosecutor's characterization of the victim as being "frozen in fear."
Because the defendant objected to this portion of the opening statement, we review to determine whether the remarks were improper and, if so, whether "substantial rights were . . . affected." Commonwealth v. Simpson, 434 Mass. 570, 584 (2001), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). "The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence. The prosecutor's expectation must be reasonable and grounded in good faith" (quotation and citation omitted). Commonwealth v. Staines, 441 Mass. 521, 535 (2004). "In analyzing a claim of improper argument, we must view the prosecutor's remarks not only in the light of the entire argument, but also in the light of the judge's instructions to the jury." Commonwealth v. Cohen, 412 Mass. 375, 382 (1992), citing Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984).
Although the "wolf in sheep's clothing" reference was arguably inflammatory, the analogy meshed with the Commonwealth's theory of the case and was supported by facts that the prosecutor credibly expected to prove with evidence. The Commonwealth's theory of prosecution cast the defendant as a family friend who ingratiated himself with the victim while grooming her for future abuse and steadily increasing the level of physicality. Likewise, characterizing the victim as "frozen in fear" was reasonable under the circumstances, as she attempted to ignore the rape as it occurred. Prior to the opening statements, the judge forcefully instructed the jury that the opening statement was not evidence. See Simpson, 434 Mass. at 584. The judge echoed that point in his final jury instructions. Even assuming the prosecutor's characterizations veered into impropriety, the defendant's substantial rights were not affected.
The judge told the jury, "[Opening statements are] a very helpful and important part of the process. It kind of gives you a context before you start seeing the witnesses come into the courtroom. But what the lawyers say is not evidence. Evidence is what you hear from the witnesses. You're going to hear what the lawyers expect the witnesses to say, but evidence is what the witnesses say and what the exhibits reflect."
The judge reiterated, "Opening statements and closing arguments, as I've said several times, are not evidence in this case."
Judgments affirmed.
By the Court (Kinder, Neyman & Desmond, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 16, 2019.