Opinion
10-P-2155
12-22-2011
COMMONWEALTH v. ABRAHAM MOLINA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child under the age of fourteen and acquitted of rape. Having reviewed the several claims of error raised by the defendant on appeal, we discern no ground to disturb the judgment. Nor are we persuaded that the trial judge sentenced the defendant for crimes other than that for which he was convicted.
We briefly summarize the facts the jury could have found and then address the defendant's claims in turn. The victim, whom we shall call Jane, was driven regularly from school to an after-school program by the defendant, who was employed as a van driver by Square One, a nonprofit childcare organization. On May 27, 2008, while driving Jane, age seven, Jane's younger sister, and a male child to the program, the defendant stopped the van near some woods and sexually assaulted Jane. Jane's sister, who was distracted with coloring books and candy that the defendant gave her, heard a sucking noise and when she looked to where Jane was sitting, she observed the defendant kissing Jane in the area of Jane's vagina. Once the van arrived at the program, Jane and her sister reported to the after-school teacher, Sarah Rogers, what had happened. The girls' mother and the police were contacted. Jane was taken to the hospital where she was examined by Dr. Joeli Hettler, a pediatric emergency medicine physician.
There was also evidence from which the jury could find that the van often arrived late and that the defendant regularly supplied the children with candy, gum, and coloring books in violation of Square One's policy.
The defendant denied the allegations. At trial, he testified that Jane and her sister liked to listen to 'sex-stimulating music' on a particular radio station, kissed him on the lips, reached into his pockets for candy, and 'played like a married couple . . . on top of another like having sex.'
1. First Complaint Testimony. Ms. Rogers testified as the Commonwealth's designated first complaint witness. See Commonwealth v. King, 445 Mass. 217 (2005). The defendant does not challenge any aspects of Ms. Rogers's testimony but challenges instead the admission of additional complaint testimony provided by Dr. Hettler, who testified that during her examination, Jane disclosed that '[t]he bus driver was touching my business with his fingers and it hurt' and further testified that he touched 'her business' with 'his mouth.' Additionally, Jane's medical record, including a printed form on which Dr. Hettler paraphrased Jane's statements under a section entitled 'Patient's Report of Incident,' was admitted in evidence. The trial judge overruled the defendant's objection on the grounds that Jane's statements to Dr. Hettler were related to medical history, treatment, and diagnosis and were therefore admissible under G. L. c. 233, §79. Because the defendant objected, we review any error in the admission of the challenged evidence under the prejudicial error standard. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Dr. Hettler wrote, 'Patient & Sister say bus driver was 'giving hickey and kisses to her business.' Pt. denies bus driver took pants off. She never saw his privates. He put his finger in her privates and it hurt.'
Portions of the record, however, were redacted, including a statement by Jane that the sexual abuse had occurred numerous times and Dr. Hettler's observations of Jane's demeanor.
Our analysis is controlled in all material respects by Commonwealth v. Dargon, 457 Mass. 387 (2010), upon which the trial judge relied. In that case, the Supreme Judicial Court held that statements made by a victim of sexual abuse to a healthcare provider were admissible under G. L. c. 233, § 79, because they were admitted for reasons independent of the first complaint doctrine. Id. at 396-398. Specifically, the statements at issue established essential elements of the crimes charged and laid the foundation for the admission of physical evidence, including the rape kit. Id. at 400-401. See also Commonwealth v. Ramsey, 76 Mass. App. Ct. 844, 849 (2010) (holding that statements in medical records may be admissible where there is 'a separate purpose for introducing the further evidence of complaint contained in the medical records').
Here, the statements at issue were similarly admitted for reasons independent of the first complaint doctrine. In particular, they established both an essential element of the rape charge -- namely, penetration of the victim by the defendant's finger -- and laid the foundation for the admission of the evidence collected during Dr. Hettler's examination. For these reasons, the judge did not err in admitting the statements or the records.
Two additional observations are warranted. First, the Commonwealth's evidence was not nearly as shaky as the defendant maintains on appeal. Jane's testimony was compelling; the incident was observed by her sister; and the abuse was reported immediately. Second, and even more significant, the jury acquitted the defendant of rape. Contrary to the defendant's assertion that the split verdict suggests prejudice, we conclude that the jury carefully assessed Jane's credibility.
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2. The Defendant's Wife's Testimony. The defendant contends that the judge erred when, over objection, he excluded the defendant's wife's testimony to the effect that the defendant had experienced problems with Jane and her sister in the past. We review the judge's ruling for prejudicial error, and conclude that there was none. As the judge correctly observed, the wife's knowledge of the defendant's alleged problems could only have come from the defendant's out-of-court statements. As such, the testimony was hearsay and properly excluded. Nor, as the Commonwealth notes, did the judge err by declining to admit the testimony as a prior consistent statement as there was no evidence that the defendant's wife could testify to statements that the defendant had made prior to his arrest. See Commonwealth v. Healey, 27 Mass. App. Ct. 30, 34-35 (1989) ('Before a witness's prior consistent statement can be admitted in evidence, it must also appear that the statement was made before the witness possessed a possible motive to fabricate').
3. Admission of Written Forms from the Sexual Assault Evidence Kit. As noted, medical records pertaining to Jane's examination at the hospital were introduced in evidence. Certain printed forms within the records contained headings that the Commonwealth acknowledges should have been redacted. Specifically, the references to 'Sexual Assault Evidence Collection Kit,' 'assault,' and 'sexual crime' are inadmissible. Dargon, supra at 398. Because the defendant did not object to the form itself, we review the error to determine whether it created a substantial risk of a miscarriage of justice. Such a risk 'exists when we 'have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. McCoy, 456 Mass. 838, 850 (2010), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). We agree with the Commonwealth that the failure to redact the contested language on the medical forms did not create a substantial risk of a miscarriage of justice. Not only was the case against the defendant strong, but the Commonwealth did not dwell on this evidence. Moreover, as we have already noted, we are persuaded that the jury's verdict acquitting the defendant of the more serious charge reflects a careful assessment of the evidence.
4. Sentencing. There is no merit to the defendant's assertion that he was improperly punished for uncharged conduct. This argument is based solely on the judge's reference during the sentencing hearing to 'victims,' rather than 'victim.' Based on our review of the record, including the mother's victim impact statement, which addressed the effect of the assault on both Jane and her sister, we conclude that the judge's references to the vulnerability of the 'victims' was merely a preamble to the imposition of the sentence. The judge's statement that 'the charge in and of itself is an indecent assault and battery on a victim under 14' supports our conclusion that the defendant was sentenced on the basis of the jury's verdict. In addition, we note the absence of any improper remarks from which we could infer that the judge considered impermissible factors in imposing the sentence, which was substantially below that recommended by the prosecutor and well within the statutory maximum.
Judgment affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),