Opinion
20-P-669
05-11-2021
COMMONWEALTH v. Fabian F. SEVILLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant on three charges -- indecent assault and battery on a child under fourteen, intimidation of a witness, and accosting or annoying a person -- all stemming from two encounters between the defendant and an unrelated seven year old boy staying in his apartment, Y.M. On appeal, the defendant argues that: (1) Y.M.’s testimony that he told his mother "what happened" was inadmissible first complaint testimony that created a substantial risk of a miscarriage of justice; and (2) the evidence presented at trial was insufficient to support his convictions for witness intimidation and annoying and accosting. We affirm the convictions, but vacate so much of the defendant's sentence on the conviction for witness intimidation as required the defendant to register as a sex offender as a condition of his probation.
A pseudonym.
First complaint testimony. In sexual assault cases one witness, usually the first told of the alleged assault by the victim, may testify to the details of the complaint and the circumstances surrounding the complaint. See Commonwealth v. King, 445 Mass. 217, 243, 246 (2005), cert. denied, 546 U.S. 1216 (2006). Such testimony should be accompanied by contemporaneous jury instructions detailing the limits of the use of that testimony. See id. at 247-248. If a first complaint witness testifies, the victim may also testify about the details and circumstances of the complaint. See id. at 245 ; Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 171-172 (2011).
For purposes of our discussion, we assume that the defendant is correct in his assertion that, without the testimony of Y.M.’s mother as a first complaint witness, it was error to admit Y.M.’s testimony about his complaint to her, even though the testimony was merely that the complaint occurred. See King, 445 Mass. at 245 n.24 ("The complainant may testify in this manner only if a first complaint witness ... is produced at trial who testifies regarding the complaint. Otherwise, the complainant may not testify to the fact of the complaint or its details"). Because the defendant raises this argument for the first time on appeal, we consider whether the error creates a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). We conclude that the error cannot create such a risk where the defendant planned to, and subsequently did, strategically elicit the same evidence as part of his own case.
In response to a question from the prosecutor regarding a conversation with the defendant, Y.M. testified as follows:
"Q: You [and the defendant] just talked about something happening the night before?
"A: Yeah. And my mother arrived from work I told her what happened."
The defendant elicited testimony about Y.M.’s first complaint three times. First, the defendant called Officer Grayson as a witness, who testified about his interview of Y.M., including Y.M.’s recounting of how he told his mother "what happened." Next, the defendant called Detective Cummings, and elicited testimony that she had learned of the assault from Y.M.’s aunt, who in turn learned of it from a woman named "Cindy," who was present when Y.M. made his first complaint to his mother. Finally, the defendant elicited the same testimony from Y.M.’s father -- that he had heard of Y.M.’s abuse from Y.M.’s aunt, who had heard it from "Cindy," who was present when Y.M. made his complaint to his mother. The defendant cannot complain that Y.M.’s testimony regarding his first complaint improperly bolstered his credibility where the defendant himself elicited the same testimony, not once but three times. The testimony created no substantial risk of a miscarriage of justice. See McCoy, 456 Mass. at 851 ("Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant").
Nor can the defendant claim that this was a late-breaking strategic shift to overcome Y.M.’s unexpected testimony. The defendant's opening statement made clear that he was going to call those witnesses to provide context to (and attack Y.M.’s recounting of) the first complaint, because the defendant's theory of the case was that Y.M.’s complaint was fabricated at the behest of his father as part of a custody battle. Given his plan to introduce evidence of the first complaint during his case, we think it a reasonable inference that the defendant's failure to object to Y.M.’s testimony about the same was a strategic decision -- another reason we find no substantial risk of a miscarriage of justice. See McCoy, 456 Mass. at 852-853.
Witness intimidation. The defendant also argues that there was insufficient evidence before the jury to support his conviction for intimidation of a witness. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
A conviction for intimidation of a witness pursuant to G. L. c. 268, § 13B, requires proof of four elements: "(1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding." Commonwealth v. Fragata, 480 Mass. 121, 122 (2018).
The defendant specifically challenges the sufficiency of proof of the third and fourth elements, intimidation and intent to interfere. Intimidating conduct consists of "acts or words that would instill fear in a reasonable person," Commonwealth v. Paquette, 475 Mass. 793, 801 (2016), quoting Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010), and such conduct "does not need to be overtly threatening." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010), quoting Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708 (2007). Importantly, " ‘[t]he context in which [an] allegedly threatening statement [is] made and all of the surrounding circumstances’ may also be taken into account." Commonwealth v. Perez, 460 Mass. 683, 703 (2011), quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). As to the fourth element, "the purpose of G. L. c. 268, § 13B, includes ‘deterring interference with future communication of information,’ ... consequently, ‘[a] criminal investigation need not have commenced’ " for the element to be satisfied. Fragata, 480 Mass. at 126, quoting Commonwealth v. King, 69 Mass. App. Ct. 113, 121 (2007).
When viewed in the light most favorable to the Commonwealth, the record provided sufficient evidence for the jury to conclude that the defendant engaged in intimidating behavior. He had just committed illicit sexual acts against Y.M. He was an adult man and, presumably, larger than the seven year old Y.M. Furthermore, his role as Y.M.’s sometime caretaker put him in a position of power and authority over Y.M. In this context, a rational jury could find that the defendant's command that Y.M. not tell his mother was sufficient to put a reasonable person in fear. See Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 236 (1998) (standing uncomfortably close while making superficially mundane statements constituted intimidation given context). Cf. Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255 (2008) (disparities in size and age and defendant's position of authority over victim relevant to whether defendant used constructive force to accomplish sexual assault). Likewise, a rational jury could readily find that the purpose of the defendant's statement was to interfere with a potential investigation, as it was likely the child would first tell his mother, who would then involve the police. See King, 69 Mass. App. Ct. at 120 (statute "does not require that a defendant specifically articulate a threat not to speak to the police or other criminal investigator").
Annoying and accosting. The defendant also challenges the sufficiency of the evidence supporting his conviction for accosting and annoying another person pursuant to G. L. c. 272, § 53, which mandates that "persons who with offensive and disorderly acts or language accost or annoy another person ... shall be punished." "Under the statute, ‘offensive’ and ‘disorderly’ are separate and distinct elements," and "the Commonwealth has to prove that the defendant's behavior was offensive and disorderly to a reasonable person." Commonwealth v. Sullivan, 469 Mass. 621, 625 (2014), quoting Commonwealth v. Cahill, 446 Mass. 778, 781 (2006). " ‘[O]ffensive’ acts or language ‘are those that cause displeasure, anger or resentment; esp., repugnant to the prevailing sense of what is decent or moral.’ " Id. " ‘[D]isorderly’ acts or language ‘are those that involve fighting or threatening, violent or tumultuous behavior, or that create a hazardous or physically offensive condition for no legitimate purpose of the actor, whether the resulting harm is suffered in public by the public or in private by an individual.’ " Sullivan, supra at 626, quoting Commonwealth v. Chou, 433 Mass. 229, 233 (2001). In any analysis of these elements, "context is critical." Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 16 (2007).
The evidence at trial, viewed in the light most favorable to the Commonwealth, revealed that the half-naked defendant exposed his penis to Y.M. one day after committing unwanted sexual acts against him. The defendant asked Y.M. what his penis was for, and Y.M., made uncomfortable to the point of nausea, looked away. The defendant proceeded to place himself aggressively over Y.M. in a "position of a push-up," commanded him to stick out his tongue, and licked Y.M.’s lips. A rational jury could have found this behavior to have been both offensive -- i.e., causing displeasure -- and disorderly -- i.e., creating a physically offensive condition or threatening. See Cahill, 446 Mass. at 782 (unwanted grabbing of shoulders coupled with words "I love you" was offensive and created physically offensive condition); Commonwealth v. Moran, 80 Mass. App. Ct. 8, 10 (2011) (mimed masturbation, delivered at close quarters and in presence of child, constituted intimidating behavior); Commonwealth v. Whiting, 58 Mass. App. Ct. 918, 920 (2003) (using sexually explicit language towards teenage girls and pulling down pants in their view was offensive); Commonwealth v. LePore, 40 Mass. App. Ct. 543, 548 (1996) (voyeurism created physically offensive condition).
Sex Offender Registration. For the conviction of witness intimidation, the judge sentenced the defendant to two years of probation and imposed several conditions, including that he register as a sex offender. As the Commonwealth concedes, imposing that particular condition was error. "Nothing in [ G. L. c. 6, §§ 178C - 178Q ] confers authority on a judge to impose an obligation to register as a condition of probation." Commonwealth v. Ventura, 465 Mass. 202, 209 (2013).
The defendant in his brief recognizes that his conviction for indecent assault and battery on a person under fourteen, in violation of G. L. c. 265, § 13B, independently triggers the requirement that the defendant register as a sex offender. Our holding should not be read to abrogate that independent obligation for the defendant to register as a sex offender.
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Conclusion. We vacate so much of the defendant's sentence on the conviction for witness intimidation as orders the defendant's registration as a sex offender as a condition of probation. The judgments otherwise are affirmed.
So ordered.
Vacated in part; affirmed in part.