Opinion
19-P-1839
05-19-2021
COMMONWEALTH v. Alejandro VALOY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. The defendant argues that the trial judge erred (1) in denying his motion for a mistrial, which was based upon a witness's reference to "prior problems" that the defendant had, and (2) in denying his motions for a required finding of not guilty. We affirm.
Background. The defendant, who was sixty-nine years old at the time of trial, lived with his sister a few blocks from the victim's family in the South End neighborhood of Boston. The victim's mother was a friend of the defendant's sister and knew that the defendant often babysat and cared for his sister's young grandchildren. The victim's mother had an early work schedule and needed someone to walk her nine year old son, the victim, to a nearby bus stop on weekday mornings, so she arranged with the defendant to do this during the 2015-2016 school year. Following the school year, the victim's mother hired the defendant to babysit both the victim and his older brother during the summer of 2016, while she was at work.
In August of 2016, the victim's brother started the school year before the victim did, which resulted in the defendant babysitting the victim alone for several weeks. On one of these occasions, while playing around, the victim struck the defendant with a pillow, and ran to another room. The defendant thereafter pinned the victim down on a bed face down, pulled down the victim's pants, and penetrated the victim's anus with his penis.
The victim told his brother what had happened that same day, but when his brother stated that he was going to tell their mother, the victim told him to "never mind" and that he was "[j]ust kidding." The defendant continued to babysit the victim and walk him to the bus stop, apparently without incident, until February of 2017, when the victim's mother learned what had happened and contacted the police.
The defendant was indicted and tried for rape of a child, as well as the lesser included offenses of indecent assault and battery on a child and assault to rape a child. The Commonwealth presented testimony from the victim and from the defendant's sister. During the prosecutor's direct examination of the defendant's sister, the following exchange took place:
Q: "What was your impression of how [the defendant] was as a babysitter?"
A: "To me he was fine. I never saw anything."
Q: "No issues that you knew of?"
DEFENSE COUNSEL : "Objection."
A: "No. Well, yes --"
DEFENSE COUNSEL : "Objection."
A: "-- yes, about the previous problems."
The judge thereafter sustained the objection, and immediately stated that the jury "will disregard the latter comment by this witness."
At the next break the defendant moved for a mistrial, arguing that "the jury has now heard that there was a prior one of these incidents," and that it "is so prejudicial that even instructing them to ignore it ... is not going to wipe it from their minds." The judge denied the motion, stating:
"Well, I'm not sure the jury heard about any prior incident.... [The jury heard about a] [p]rior problem. Without specifying what any of that meant. And there was no further inquiry or exploration and I gave a prompt instruction to disregard it.... I don't see that that rises to a manifest necessity warranting mistrial. Nor do I see the prejudice to it in its abbreviated form. So that motion is denied."
At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty; the defendant presented no evidence and renewed his motion at the close of all evidence. These motions were denied. The defendant argued in closing that there was no physical evidence establishing that the crime occurred and that the case came down to "just the testimony of th[e] child." The jury returned a verdict of guilty on the lesser included offense of indecent assault and battery on a child under fourteen.
Discussion. 1. Motion for a mistrial. The defendant first argues that the mention of "previous problems" by the defendant's sister created ineradicable prejudice that could not have been cured by the judge's instruction, and that his motion for a mistrial should have been granted. We review the denial of a motion for a mistrial for abuse of discretion. See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018), quoting Commonwealth v. Bryan, 476 Mass. 351, 357 (2017) ("The test is not whether we would have made a different decision, but whether the judge ‘made "a clear error of judgment in weighing" the [relevant] factors’ such that his decision ‘falls outside the range of reasonable alternatives.’ " When a jury has been presented with inadmissible evidence, "the judge may rely on a curative instruction to correct any error and to remedy any prejudice." Silva, supra, quoting Commonwealth v. Durand, 475 Mass. 657, 668 (2018).
We perceive no abuse of discretion in the judge's denial here. As the judge noted, the jury heard only a single vague reference to "previous problems," and the jury were immediately instructed to disregard the comment. While the statement had the potential to prejudice the defendant, see Mass. G. Evid. 404 (2018), the defendant cites no case -- nor are we aware of one -- "where an appellate court [of the Commonwealth] has concluded that a mistrial was required because the jury would not be able to disregard evidence they were instructed to disregard." Silva, 93 Mass. App. Ct. at 615-616. Rather, our courts have several times held that any potential prejudice created by the presentation of inadmissible or improper evidence -- including more specific and detailed references to prior criminal conduct than the single vague reference here -- may reasonably be cured with a prompt and forceful instruction to disregard it. See Commonwealth v. Garrey, 436 Mass. 422, 435 (2002) ; Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32 (2014). The judge's denial of a mistrial was well within his discretion. See Garrey, supra.
2. Motions for required finding of not guilty. The defendant also contends that the Commonwealth failed to present sufficient evidence of his commission of the crime. We review the evidence produced at trial in the light most favorable to the Commonwealth, to determine whether it was sufficient "to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present." Commonwealth v. Hilton, 398 Mass. 63, 64 (1986), citing Commonwealth v. Latimore, 378 Mass. 671, 679-680 (1979).
The defendant argued in closing that the evidence against him was weak, and that the victim's initial disclosure, and recantation, as well as the lack of corroborating evidence, provided reason to doubt the victim's credibility. The defendant also argued that there was essentially no evidence against him aside from the victim's testimony. However, the testimony of a victim that encompasses all the elements of a crime is sufficient to prove beyond a reasonable doubt that the defendant committed the crimes. Commonwealth v. Peters, 429 Mass. 22, 23-24 (1999) (victim's statements alone, despite inconsistencies, sufficient to send matter to jury). No corroborating evidence is required, see Commonwealth v. Alvarez, 480 Mass. 299, 310 n.4 (2018), and on review we are to "resolve all issues of credibility in favor of the Commonwealth." Commonwealth v. Sutherland, 93 Mass. App. Ct. 65, 71 (2018), citing Commonwealth v. Walker, 68 Mass. App. Ct. 194, 198-199 (2007). The defendant's arguments were for the jury to consider, and here the jury necessarily must have credited the victim's testimony to convict the defendant.
Judgment affirmed.