Opinion
18-P-461
09-05-2019
COMMONWEALTH v. OSCAR N. MALAGA.
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 was convicted of five counts of indecent assault and battery on a child under the age of fourteen. On appeal the defendant argues that the prosecutor committed reversible error in his closing argument when (1) he argued that the defendant was "grooming" the victim, and (2) the prosecutor stated that it was "not uncommon" for a victim to delay reporting sexual assaults for as long as "15, 20, [or] 30 years." The defendant contends that the prosecutor's comments were not rooted in the evidence at trial because there was no testimony, expert or otherwise, on those matters. The prosecutor's argument regarding the defendant grooming the victim was fairly based on the evidence at trial. Furthermore, although the statement about victims delaying the report of sexual assault for many years was improper without supporting expert testimony, in the circumstances the statement did not create a substantial risk of a miscarriage of justice. We affirm.
Background. We recite the facts as they were presented at trial, reserving some facts for later discussion. The defendant and the victim's father (father) met and became friends through their work with their church around 2003. Beginning in approximately 2006 the father allowed the defendant, who was homeless at the time, to sleep on the couch in the family's home, and the father hired the defendant (a "handyman") to renovate the home's basement. While the renovations were ongoing the defendant would also babysit the family's two children, an eight year old girl (the victim) and a twelve year old boy, for about two hours every day when they returned from school. It was during this babysitting time that the majority of the assaults occurred.
The defendant and the father often referred to each other as "family" or as "brothers."
The victim testified that typically she would come home from school and begin her homework in the dining room or would watch television in the living room while her brother played video games in his room. The defendant would then approach the victim with "promises of toys" or "make excuses to talk to [her]." Approximately "every couple times he would watch [her]," the defendant would reach into her shirt and massage her breasts. On other occasions the defendant "would pretend to be dancing and grind" his genitals against her. The victim also recounted an incident where the defendant "bit [her] breast while he was pretending to catch [her] on the couch" during a family party.
The assaults continued for about one and one-half years -- beginning in early 2006 and ending in November 2007. The victim did not tell anyone about the assaults until nearly eight years later, in April of 2015, when she was seventeen. At that time she told a high school counsellor what had happened.
At some point the victim began resisting the defendant's advances. She testified that this was prompted because her mother, after seeing a different man hug the victim for "too long" at church, told the victim that if anyone made her feel uncomfortable she should pull away from them.
The victim finally opened up about the assaults during a period of stress at school. The victim stated that she did not inform anyone sooner because the assaults made her feel "confused" and "embarrassed," and as though she were the reason the assaults were happening.
After finishing the renovation, the defendant moved into the family's finished basement and remained there until April of 2015, when the family learned of the assaults. Shortly thereafter the defendant had a conversation with the victim's uncle in which the defendant denied ever touching the child inappropriately, but also asked the uncle for forgiveness and made comments about leaving the country.
The defendant made statements about renewing his passport so that he could return to Peru, due to his "problems with the law."
The defense theory was that the victim's account of the assaults was fabricated. The defendant testified at trial. He claimed that he never touched the victim inappropriately or grinded against her, and that at no point was he ever alone with the victim. The defendant also disputed the victim's claim that he bit her on the breast. The defendant stated that he remembered the incident she was referring to, "but not exactly how she told it." The defendant claimed that he was laying on the couch when the victim jumped on top of him and "her blouse got stuck . . . in the zipper" of his sweater. Defense counsel argued in closing, among other things, that the victim's account was unreliable due to the nearly eight-year delay in reporting the assaults.
Five counts of indecent assault and battery on a child under fourteen were presented to the jury: one count each for touching the victim's breast and rubbing his genitals against her between January 1, 2006, and December 31, 2006; one count each for touching the victim's breast and rubbing his genitals against her between January 1, 2007, and November 26, 2007; and one count for biting the victim's breast. The defendant was found guilty on all five counts.
Discussion. On appeal the defendant argues that the prosecutor made arguments in closing that were not rooted in the evidence. In particular, the defendant challenges the following statements:
(1) "Now ladies and gentlemen, I'm going to suggest something to you. What Mr. Malaga was doing was what you call grooming, grooming a child until you get them to a point whereby there are no inhibitions to whatever sexual abuse that that person intended to perpetrate on them. It's grooming. If I touch a breast today, how will she react to it? If I touch her here tomorrow, how will she react to it? That's what Mr. Malaga was doing. He was grooming, ladies and gentlemen, we suggest to you."We disagree that these statements give rise to reversible error.
(2) "It is not uncommon, for someone who suffered such an abuse, not to talk to anybody about it until 15, 20, 30 years sometimes. It comes out when we are ready. Different reasons why it comes out: maybe when someone's under stress, going through a lot, things continue to come up, and we begin to worry about it. This is not uncommon."
Defense counsel objected to the prosecutor's use of the term "grooming." In closing the prosecutor invoked the term four other times, including stating to the jury that, "what you have before you is a grown man who was on the verge of grooming a child to become an abuser of that child."
1. Comments regarding grooming. In assessing a claim of improper closing argument, we review the prosecutor's remarks in light of the entire closing argument, the evidence at trial, and the instructions given to the jury. Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011). "So long as the prosecutor's closing argument is grounded in the evidence, the prosecutor may 'argue "the evidence and the fair inferences which can be drawn from the evidence."'" Commonwealth v. Childs, 94 Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017). The prosecution may suggest "what conclusions the jury should draw from the evidence," Commonwealth v. Roy, 464 Mass. 818, 831 (2013), quoting Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980), and is entitled to respond to the defendant's theory of the case or other contentions made at trial, Commonwealth v. Whitman, 453 Mass. 331, 343, 346 (2009).
Here, the Commonwealth's use of the term "grooming" was rooted in evidence that the defendant made "excuses to talk to [the victim]," "pretend[ed] to be dancing" in order to "grind" against her, and used "promises of toys" to perpetrate the semi-daily sexual assaults over the course of one and one-half years. See Childs, 94 Mass. App. Ct. at 76. Moreover, the comment was also permissible to rebut the defendant's contention that the separate breast-biting incident was the result of an accident or mistake. See id. See also Whitman, 453 Mass. at 346.
Contrary to the defendant's argument, the prosecutor did not incorrectly define the term "grooming." Our courts have used the term in numerous cases, to refer generally to deliberate actions taken by a defendant to facilitate sexual abuse, see Commonwealth v. McDonagh, 480 Mass. 131, 135 n.6 (2018); Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673 n.10 (2016); Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 524 (2011); Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 418 n.11 (2010). While the defendant suggests in his brief that expert testimony is required to substantiate a claim of grooming, we find no support for that contention in our case law. Indeed, in the above-cited cases the term "grooming" was used although there was no expert testimony. The term is not a scientific or specialized term that necessarily requires expert definition.
This definition is also in accordance with the definition used in the Federal criminal statutes. See, e.g., United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011).
It is also noteworthy that the defendant admitted that some touching did occur during the breast-biting incident. The defendant attempted to explain the incident away by suggesting that the victim must have mistook her blouse getting stuck on the defendant's zipper, with the defendant biting her breast. The defendant's testimony raised an issue as to the true nature of this incident. In rebutting that testimony the prosecutor used the term "grooming" to suggest that the incident was not a mistake, but rather that it was part of the same pattern of assaultive behavior. See Childs, 94 Mass. App. Ct. at 73 (pattern of bad acts relevant to rebut charge of accident or mistake). See also Commonwealth v. Maloney, 23 Mass. App. Ct. 1016, 1017 (1987) (Commonwealth has burden to prove that touching was not accidental). In these circumstances there was no error.,
The defendant claimed that he was laying on the couch when the victim jumped on his lap and he caught her.
The jury were given a general instruction that closing arguments are not evidence.
We also reject the defendant's argument that the Commonwealth impermissibly referred to uncharged conduct. The statement "[i]f I touch a breast today" was clearly based on the evidence, and the statement "[i]f I touch her here tomorrow" could well be understood as referring to the other charged incident where the defendant rubbed his genitals against the victim. Moreover, the prosecution may properly comment on the defendant's mental state where relevant.
2. Comments regarding delay in reporting sexual assaults. The defendant next challenges the prosecutor's statement that "[i]t is not uncommon" for a victim to delay reporting a sexual assault for "15, 20, [or] 30 years," as there was no expert evidence on the matter. The defendant did not object to the statement at trial. We accordingly review any error only for a substantial risk of a miscarriage of justice. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018).
The prosecutor's statements were not the subject of any evidence at trial, and this court has previously stated that such information is not within the common knowledge of lay jurors. See Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 263 (2002) ("The prosecutor's sweeping proposition that victims of sexual . . . abuse commonly delay disclosure of that abuse . . . [was] not . . . the subject of testimony at trial, and the record is devoid of anything to support it"). We accordingly assume that the statements constituted error, and move on to apply the substantial risk standard, which "requires us to determine 'if we have serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Brown, 479 Mass. 600, 610 (2018), quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
After reviewing the trial record as a whole, we do not discern a substantial risk of a miscarriage of justice from the prosecutor's statements. The issue of the victim's delay in reporting the abuse was the subject both of testimony and argument. The jury were able to view the victim when she testified, and to hear her explanation for the delay. In closing argument defense counsel challenged the victim's credibility, including with arguments that were pitched to the jury's common knowledge of human behavior. For example, defense counsel asked, rhetorically, why the victim had not previously reported the abuse to her parents ("why nine years? . . . Didn't any interaction like a regular mother and daughter relationship take place where there's plenty of quiet time?").
The prosecutor was entitled to respond to these arguments by defense counsel. The prosecutor's statement that it can sometimes take "15, 20, [or] 30 years" for a victim to come forward was not supported by the evidence, but that was an isolated statement in an argument that otherwise drew on the jury's knowledge and was responsive to the context framed by defense counsel's closing. Because there was additional evidence from which the jury could properly assess the credibility of the witnesses, we do not believe the prosecutor's comment made a difference in the outcome. See Brown, 479 Mass. at 611 (finding no substantial risk that justice miscarried where there was alternative evidence to support impermissible argument at closing). Moreover, our conclusion is supported by evidence of the defendant's consciousness of guilt, and the fact that the jury were instructed that closing arguments are not to be taken as evidence. Compare id.; Commonwealth v. Jones, 471 Mass. 138, 148-149 (2015) (finding no substantial risk of miscarriage of justice where court "considered the prosecutor's improper statements in the context of the closing arguments and . . . the strength of the evidence against the defendant"), with Fredette, 56 Mass. App. Ct. at 263-264 (finding substantial risk that justice miscarried where error in closing was combined with other more serious errors including extraneous influence on jury).
In particular the statements the defendant made to the victim's uncle seeking forgiveness, and suggesting that he may try to flee the country.
Judgments affirmed.
By the Court (Milkey, Neyman & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 5, 2019.