Commonwealth v. White

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SJC-11919

COMMONWEALTH vs. ROBERT E. WHITE.

Plymouth. February 9, 2016. - October 19, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1

Rape. Limitations, Statute of. Evidence, Indictment,
Corroborative evidence, Prior misconduct. Practice,
Criminal, Indictment, Instructions to jury.

Indictment found and returned in the Superior Court
Department on October 3, 2008.

The case was tried before Richard J. Chin, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Kathryn Hayne Barnwell for the defendant.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.

LENK, J. The defendant was convicted in 2014 of one count

of rape of a child, G. L. c. 265, § 23. The underlying

1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
 2

indictment, returned in 2008 and amended in 2014, alleged that

he had raped his daughter on "diverse dates" between September

29, 1979, and 1981, when she was between four and six years old.

On appeal, the defendant chiefly raises two sets of claims, both

of which concern the statute of limitations, G. L. c. 277, § 63.

First, he argues that the Commonwealth did not meet its burden

at trial of proving beyond a reasonable doubt that the

indictment was timely brought, and, in addition, that the trial

judge incorrectly instructed the jury as to that issue. Second,

he maintains that, even if the indictment were timely brought,

the Commonwealth failed to provide the requisite independent

corroboration of any incidents of rape that occurred more than

twenty-seven years before the indictment was returned. See

G. L. c. 277, § 63. He maintains, in this regard, that the

corroboration provided by the Commonwealth at trial --

consisting exclusively of evidence of uncharged sexual

misconduct -- was insufficient. He argues also that the judge

failed to instruct the jury as to the corroboration requirement.

We conclude, with respect to the first set of issues, that

the Commonwealth presented sufficient evidence from which the

jury could determine, beyond a reasonable doubt, that the

indictment was timely returned. We also conclude, however, that

the jury instruction concerning how to make this determination

was incorrect, that the erroneous instruction precluded the jury
 3

from properly ascertaining whether the indictment was timely,

and that the incorrect instruction resulted in a substantial

risk of a miscarriage of justice. Accordingly, on this basis

alone, the defendant's conviction must be vacated and set aside.

In considering the second set of claims, we construe for

the first time the requirement that a conviction of certain sex

offenses against children, if based on an indictment returned

more than twenty-seven years after the offense, must be

supported by independent, corroborating evidence. See G. L.

c. 277, § 63. We conclude that the corroboration must relate to

the specific criminal act or acts of which a defendant is

accused, and that evidence of uncharged misconduct does not

suffice. Here, most -- although not all -- of the incidents of

rape to which the victim testified took place more than twenty-

seven years before the indictment was returned, and therefore

required corroboration. Because there is a significant

possibility that the jury's general verdict was based only on

the incidents requiring corroboration, and because the

Commonwealth's corroborative evidence -- consisting only of

evidence of uncharged misconduct -- was insufficient as a matter

of law, the defendant's conviction must be vacated on this basis

as well. On remand, should the Commonwealth decide to pursue a

new trial, the defendant may be tried only for those incidents
 4

that took place after October 3, 1981, for which corroboration

was not required as a matter of law.

1. Background. a. Abuse. We recite the evidence

presented at trial, reserving certain details for later

discussion. In 1974, the defendant married J.G.C., and adopted

her four-year-old son, S.G. The following year, the defendant

and J.G.C. had a daughter, S.F. Between the time of the

marriage and October, 1981, the family lived together in eight

different places, most in the general vicinity of Wareham. The

last three locations, which are relevant to this appeal, were in

Wareham, where they moved toward the end of 1978 or the

beginning of 1979; in West Wareham, where they moved sometime in

1980; and in Onset, where they moved in September, 1981.

S.F. testified that the defendant had sexually abused her

on numerous occasions beginning in 1979, when the family lived

in Wareham. She stated that the defendant "would come into my

room at night," and then "take off my pajamas and touch me down

in my private areas" using his "fingers[ and] his mouth." This

happened "a few times a week." When the family moved to West

Wareham, sometime in 1980, the defendant would come into her

bedroom and "do the same thing" "a few times a week." S.F.

added that "if I tried to stop him, he would smack me" and "tell
 5

me that this is how a father shows his daughter love, that we

have a secret and I can't tell."2

In September, 1981, the family moved to Onset. S.F. did

not testify about any incidents of abuse at that location. Her

brother, however, testified that he was once walking past S.F's

room at the Onset house, and "saw [the defendant] on top of her,

his head in her lap, her on the bed"; S.F. was "laying back" and

"her pants were down."

Sometime in September or October, 1981, when S.F. was six

years old and the family was living in Onset, J.G.C. was sitting

outside the house when "all of a sudden [she] just had a feeling

over [her] . . . dread almost." She "ran in the house," opened

the door to S.F.'s room, and saw the defendant inside the room

with her. The defendant said, "We're cleaning the room."

J.G.C. had not previously seen the defendant help S.F. clean her

room with the door closed. J.G.C. then took S.F. "out for a car

ride" for approximately "an hour." S.F. testified that, during

this ride, J.G.C.

"was asking me . . . Do you have something to tell me?
Is there something you would like to tell me? And she
would, you know, rephrase that particular question over and

2
S.F. also mentioned a "very prominent memory of" abuse at
her "grandmother's house" in Wareham, which took place when she
was "about four." She said that the defendant followed her into
an upstairs bathroom, "put me up onto the sink and . . .
performed oral sex on me" by putting "his mouth on my vagina."
Afterward, "he put my clothes back on and told me to go
downstairs."
 6

over. And the only thing I ever wound up disclosing was
that I had a secret with my father and I couldn't tell
anybody."

Shortly after this incident, in October, 1981, the

defendant and J.G.C. separated and, ultimately, divorced. The

defendant moved to an apartment in Wareham, where he lived for

"at least a couple of years." S.F. testified that she visited

the defendant there on a number of occasions, and that

"[w]henever I was sleeping, he would come into the room," "take

off my pants," and "touch my vagina" with "[h]is fingers or his

tongue."

Soon after moving to the Wareham apartment, the defendant

began dating another woman. This woman moved in with the

defendant, and they eventually married. The two left the

Wareham apartment at some point in 1984 or 1985, moving first to

Haverhill and then to New Hampshire. Through 1988, S.F. and her

brother would periodically visit the defendant in New Hampshire.

In addition, when S.F. was "sixteen, seventeen," in 1991 and

1992, she "started visiting [her] grandparents" in New Hampshire

during "the summertime," and the defendant sometimes "came to

the house" during those visits.

b. Disclosures and trial. In April, 2008, when S.F. was

thirty-two years old, she gave a statement to police alleging
 7

that the defendant had abused her when she was a child.3

Thereafter, a Plymouth County grand jury heard testimony from

S.F. regarding the abuse, which was said to have taken place

between 1977 and 1981.4 In addition, they heard testimony from

her brother, who alleged that the defendant also had abused him

on various occasions between 1973 and 1985.5 On October 3, 2008,

a grand jury returned four indictments relating to the alleged

abuse of S.F.,6 and eight related to the alleged abuse of the

brother.7 Following a pretrial motion to dismiss on the basis,

3
S.F. previously had disclosed the abuse to J.G.C. This
happened in 1988, when S.F. was approximately thirteen years
old. At that time, J.G.C. "asked her if she wanted to pursue it
and [S.F.] said no."
4
No accounts of the pre-1979 abuse, which was determined to
be time barred, are in the record.
5
The grand jury also heard testimony from the defendant's
niece, who alleged that the defendant abused her on various
occasions between 1972 and 1978, and from J.G.C., who alleged
that the defendant had raped her sometime in 1974 or 1975, when
she was married to him. Indictments were returned on the basis
of this testimony. However, the indictment concerning the niece
was dismissed as time barred before trial, and that concerning
J.G.C. was dismissed as time barred during trial.
6
These included one count of rape of a child by force,
G. L. c. 265, § 22A, and three counts of indecent assault and
battery, G. L. c. 265, § 13B.
7
These included three counts of rape of a child by force,
G. L. c. 265, § 22A; two counts of assault and battery on a
person under fourteen years of age, G. L. c. 265, § 13B; one
count of assault and battery, G. L. c. 265, § 13A; one count of
assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A (b); and one count of threatening to commit a
crime, G. L. c. 275, § 2.
 8

among other things, of the statute of limitations, a judge of

the Superior Court dismissed as time barred three of the four

indictments relating to abuse of S.F. The judge denied the

defendant's motion to dismiss a fourth count -- for rape of a

child by force, G. L. c. 265, § 22A -- relating to abuse of

S.F., and he also declined to dismiss the eight counts relating

to abuse of the brother.

In March, 2014, a trial on the remaining indictments was

held before a Superior Court jury. The Commonwealth presented

testimony from S.F. regarding abuse that she suffered; from her

brother, both regarding abuse that he suffered, and in

corroboration of S.F.'s testimony; and from J.G.C., as the first

complaint witness.8 Because the Commonwealth was required also

to prove that the charges were not barred by the statute of

limitations, see Commonwealth v. Shanley, 455 Mass. 752, 781

n.37 (2010) ("Commonwealth has the burden of proving beyond a

reasonable doubt that the indictments have been timely

brought"), it presented evidence that the defendant resided

outside of Massachusetts during the relevant limitations period,9

8
Pursuant to a separate indictment, J.G.C. testified about
an incident in which the defendant raped her. That indictment
was, as mentioned, dismissed in the middle of the trial as time
barred, and did not go to the jury.
9
The relevant limitations period with respect to most of
the acts in question was fifteen years, to run from the victim's
 9

and that, accordingly, the statute had been tolled. See G. L.

c. 277, § 63 (statute tolled if defendant "not usually and

publicly a resident" of Massachusetts). This evidence consisted

of testimony from S.F., S.G., and J.G.C. about the defendant

residing in New Hampshire, and of a 2009 report from the New

Hampshire Division of Motor Vehicles, admitted over objection,

showing that the defendant had a New Hampshire driver's license

and maintained an address in that State.

There were two theories of defense. First, the defendant

contended that S.F.'s memories of abuse were false, being the

result of suggestive questioning by J.G.C. In this regard, the

defendant offered expert testimony from a psychiatrist who

opined that, under certain circumstances, such as suggestive

questioning by an adult, children may develop vivid memories of

events they never actually experienced. The defendant also

presented a statement of stipulated facts regarding certain

comments that S.F. made to a Department of Social Services

(DSS)10 employee in 2004, which the defendant argued were

inconsistent with S.F.'s testimony at trial. The second theory

of defense was that the Commonwealth had not met its burden of

sixteenth birthday. See G. L. c. 277, § 63, as amended by
St. 1996, c. 26. The victim turned sixteen in 1991.
10
This was before the change of the department's name to
the Department of Children and Families in 2008. See St. 2008,
c. 176, § 136.
 10

demonstrating that the statute of limitations had been tolled

and that the indictments were timely brought.

The jury returned a guilty verdict on the single indictment

relating to abuse of S.F., on the lesser included offense of

rape of a child. See G. L. c. 265, § 22A. The jury returned

verdicts of not guilty on the remaining indictments, which

related to abuse of her brother.

2. Discussion. On appeal, the defendant raises two sets

of claims related to the statute of limitations, G. L. c. 277,

§ 63. First, the defendant contends that the Commonwealth did

not present sufficient evidence that the indictment on which he

was convicted was returned within the relevant limitations

period. He claims also that, even if the evidence on this point

was sufficient, the jury were not instructed properly how to

determine, on the basis of this evidence, whether the indictment

was timely.

Second, even if the indictment was timely brought, it is

undisputed that the Commonwealth was required, pursuant to G. L.

c. 277, § 63, to provide independent corroboration of any

incidents of rape alleged to have occurred more than twenty-

seven years before the indictment was returned. The defendant

contends that the Commonwealth failed to provide sufficient

corroboration of such alleged incidents, and, in addition, that

the judge declined to instruct the jury, notwithstanding the
 11

defendant's request, regarding the Commonwealth's obligation to

provide this evidence.

The defendant also raises four additional claims, three of

which are evidentiary in nature, and one of which relates to

whether the Commonwealth proved certain details listed in the

indictment.

a. Timeliness of indictment. At the time of the alleged

offenses at issue, between 1979 and 1981, the statute of

limitations for rape of a child was six years. See R. L. 1902,

c. 218, § 52. The Legislature subsequently has lengthened the

relevant limitations period several times.11 It is undisputed,

except with regard to the last of these changes, that each

modification occurred before the limitations clock had an

opportunity to expire. See Stogner v. California, 539 U.S. 607,

632 (2003) (under Constitution's ex post facto clause,

limitations period may be lengthened retroactively, but not if

already expired). The contested issue in this case is whether

the most recent modification, like the previous ones, took

11
Effective September 30, 1985, the limitations period was
extended to ten years. See St. 1985, c. 123. In 1987, the
statute was changed so that the ten-year period would begin to
run only from the victim's sixteenth birthday. St. 1987,
c. 489. In 1996, the limitations period was extended to fifteen
years, to run from the victim's sixteenth birthday. St. 1996,
c. 26. Effective December 20, 2006, the limitations period was
lifted entirely. St. 2006, c. 303, § 9 (no limitations, but
indictment returned more than twenty-seven years after offense
requires "independent evidence that corroborates the victim's
allegation").
 12

effect before the limitations clock had an opportunity to

expire. See St. 2006, c. 303, § 9.

Prior to December 20, 2006, the statute of limitations for

rape of a child was fifteen years, to run from the victim's

sixteenth birthday. G. L. c. 277, § 63, as amended by St. 1996,

c. 26. Because the victim turned sixteen on August 19, 1991,

that limitations period would have expired fifteen years later,

on August 19, 2006. This would have happened 123 days before

December 20, 2006, when the Legislature entirely abolished the

statute of limitations for rape of a child. See St. 2006,

c. 303, § 9. The Commonwealth contends, however, that the

limitations clock did not expire on August 19, 2006, because the

defendant lived in New Hampshire during the period that the

limitations clock was running, i.e., between August 19, 1991,

and August 19, 2006, thereby tolling the statute. See G. L.

c. 277, § 63 ("period during which the defendant is not usually

and publicly a resident within the commonwealth shall be

excluded").

To prove this claim at trial, the Commonwealth was required

to show beyond a reasonable doubt that, during the period that

the statute was running (between August 19, 1991, and August 19,

2006), the defendant was "not usually and publicly a resident"

of Massachusetts for at least 123 days, i.e., for the length of

time between the victim's birthday on August 19, 2006 (when the
 13

limitations clock would have run under the old statute) and

December 20, 2006 (when the Legislature abolished the

limitations period).12 See Commonwealth v. Shanley, 455 Mass. at

781 n.37 (Commonwealth's burden to show indictment timely

brought). The defendant claims that the Commonwealth's evidence

on this point was insufficient and amounted only to

"speculation."

This claim fails. There was evidence that the defendant

remarried, and that he moved with his new wife to New Hampshire

sometime in the late 1980s. There was evidence also that the

defendant's parents moved to New Hampshire soon thereafter; that

S.F. and her brother visited the defendant in New Hampshire at

various times through 1988; that, in the summers of 1991 and

1992, the defendant was seen stopping by his parents' house in

New Hampshire when S.F. was there; and that, in 2009, he had a

New Hampshire driver's license listing an address in that state.

See Commonwealth v. George, 430 Mass. 276, 277 (1999)

(limitations period tolled when defendant resided out of State).

12
We do not accept the defendant's claim that, because the
trial judge erroneously instructed the jury that it needed to
find 777 days of tolling, rather than four months, see infra,
this higher number controls for purposes of our sufficiency
review. Commonwealth v. David, 365 Mass. 47, 55-56 (1974)
(misstatement of burden in defendant's favor did not become "the
law of the case" where "the judge made his ruling not at the
close of the Commonwealth's case but at the close of all the
evidence," and where, accordingly, there was no indication that
defendant's strategy at trial was affected by this mistake).
 14

Given this, the jury reasonably could have inferred that, after

the defendant moved to New Hampshire in the 1980s, he continued

to live there until at least the summer of 1992, which is, of

course, more than 123 days after S.F.'s August 19, 1991

birthday.13 See Commonwealth v. Mazariego, 474 Mass. 42, 46

(2016) (inferences drawn by jury need only "be reasonable and

possible" [citation omitted]). Thus, the Commonwealth's

evidence of tolling was sufficient.

b. Erroneous instruction on tolling. The judge gave the

following instruction on how to determine whether the indictment

was timely brought:

"[T]he statute of limitations began to run on
August 19, 1991, and would have expired on August 19, 2006.
However, our statute further provides that certain time may
be excluded from this calculation and states: any period
during which the defendant is not usually and publicly a
resident within the Commonwealth shall be excluded from
determining this period. Because those indictments were
brought in 2008, 777 days after the expiration of the
statute of limitations, the Commonwealth must prove beyond
a reasonable doubt that between August 19, 2006, and the
date of the indictment, that the defendant was not a
resident of Massachusetts for at least 777 days."

13
Our decision in Commonwealth v. Shanley, 455 Mass. 752,
780 (2010), is not to the contrary. There, we held that the
statute of limitations may be tolled only by a defendant's out-
of-State residence during the limitations period, and not by
such residence before the limitations period begins or after it
expires. Id. at 779-780. We did not say, however, as the
defendant contends, that evidence of where a defendant lived
before or after the limitations period is irrelevant to proving
where he lived during the limitations period. Id. at 778-780
(evidence that defendant lived out of State beginning in 1990
probative of where he lived when limitations clock began to run
in September, 1993).
 15

In other words, the jury were instructed to determine whether

the defendant was "not usually and publicly a resident" of

Massachusetts between S.F.'s birthday on August 19, 2006, and

October 3, 2008, the date of the indictment. See G. L. c. 277,

§ 63. Both parties agree that this was error, since, if tolling

had not taken place by August 19, 2006, the limitations period

would have run, and any tolling thereafter would be irrelevant.

See Commonwealth v. Shanley, 455 Mass. at 780 ("instruction

should have focused the jury's attention only on the defendant's

usual and public residence during the period" when the statute

was running). The defendant, however, did not object to this

instruction, and we therefore must determine whether it resulted

in a "substantial risk of a miscarriage of justice." See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

To decide whether an erroneous jury instruction created a

substantial risk of a miscarriage of justice, "[w]e examine the

jury instructions in their entirety 'to determine their probable

impact on the jury's perception of the fact-finding function.'"

Commonwealth v. Noble, 429 Mass. 44, 47 (1999), quoting

Commonwealth v. Mejia, 407 Mass. 493, 495 (1990). Here, the

erroneous instruction was the jury's sole opportunity to hear an

explanation of the statute of limitations, and, as given, it

told the jury to focus on a period when the limitations clock
 16

was not running and during which no tolling could have taken

place. Given this instruction, there was no way the jury could

have made the necessary finding whether the statute of

limitations was tolled during the interval between August 19,

1991, and August 19, 2006. In effect, the jury never had the

opportunity to ascertain whether the indictment was timely.

This "deprived [the defendant] of jury consideration of a

substantial part of his defense"14 and "created a substantial

risk of a miscarriage of justice.15 See Commonwealth v. Noble,

14
The claim that the Commonwealth did not provide
sufficient evidence of tolling was, as discussed supra, one of
defendant's two primary theories of defense, and was argued at
length by defense counsel during closing arguments. Contrast
Commonwealth v. Shanley, supra at 782 (erroneous instruction on
tolling did not require reversal where, among other things,
issue not argued in closing by defense).
15
The Commonwealth argues that the defendant's failure to
object to the erroneous instruction was the result of a
strategic decision, because the judge's error required the jury
to find more days of tolling (777 days) than would have been
required under a correct statement of the law (123 days). See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (appellate court
considers whether "counsel's failure to object was not simply a
reasonable tactical decision" [citation omitted]). There was no
evidentiary hearing on the issue, and the record before us does
not support this contention. We note that the erroneous
instruction would not necessarily be to the defendant's
advantage, as it focused the jury's attention on a two-year
window (2006-2008) close to 2009, when it was shown, via the
defendant's New Hampshire driving record, that he maintained an
address in that State. Arguably, it would have been more to the
defendant's advantage for the instruction to focus on the period
between 1991 and 2006, during which there was no direct evidence
that the defendant maintained a New Hampshire address. In
addition, the record suggests that both the judge and the
parties found the issue of tolling to be difficult and
 17

supra at 47 (instruction omitted on affirmative defense that was

supported by evidence). Accordingly, the defendant's conviction

must be vacated.

c. Corroboration. i. Sufficiency of corroboration.

General Laws c. 277, § 63, as amended by St. 2006, c. 303, § 9,

provides that an indictment for rape of a child

"may be found and filed at any time after the date of the
commission of such offense; but any indictment or complaint
found and filed more than [twenty-seven] years after the
date of commission of such offense shall be supported by
independent evidence that corroborates the victim's
allegation. Such independent evidence shall be admissible
during trial and shall not consist exclusively of the
opinions of mental health professionals" (emphasis
supplied).

Here, the defendant was convicted on the basis of an indictment

returned on October 3, 2008. Thus, pursuant to G. L. c. 277,

§ 63, S.F.'s allegations with respect to any incidents taking

place before October 3, 1981 -- i.e., more than twenty-seven

years prior to indictment -- required corroboration by

independent evidence.16

confusing. It appears at least as likely that neither counsel
realized that an error had been made. Finally, there is
evidence that the defendant objected to other parts of the jury
instructions on the statute of limitations, and "[w]e can see no
valid tactical reason for challenging some instructions but not
others." See Commonwealth v. Randolph, 438 Mass. 290, 299
(2002).
16
As discussed infra, the judge did not give an instruction
on the issue of corroboration.
 18

At trial, S.F. testified to various incidents of rape, some

occurring before October 3, 1981, and some after.17 The jury,

however, returned a general verdict that did not specify whether

the defendant was convicted on the basis of the pre-October 3,

1981, incidents, which required corroboration, or those that

took place later, for which corroboration was not necessary.

Because we do not know the basis for the jury's verdict, the

defendant's conviction may be affirmed only if there was

corroboration of the pre-October 3, 1981, incidents, as those

might have formed the sole basis for the jury's verdict.18,19

17
The incidents before October 3, 1981, were those in the
family's homes in Wareham and West Wareham, as well as at the
grandparents' house in Wareham. The incidents after this date
were those that took place in the Wareham apartment to which the
defendant moved in October, 1981, after separating from J.G.C.
18
The judge correctly instructed the jury that "[y]ou may
find the defendant guilty only if you unanimously agree that the
Commonwealth has proven beyond a reasonable doubt that the
defendant committed the offense on at least one specific
occasion." Thus, the jury might unanimously have agreed that
the defendant committed rape on one specific occasion before
October 3, 1981, and might not unanimously have agreed regarding
other dates.
19
The Commonwealth contends that this claim was waived.
Even if this were so, most of the acts to which S.F. testified
required corroboration, and, accordingly, there was a
significant possibility that the jury convicted on the basis of
those acts, resulting in a substantial risk of a miscarriage of
justice to the extent that the Commonwealth's corroboration was
insufficient. See Commonwealth v. Kelly, 470 Mass. 682, 701
(2015) (substantial risk of miscarriage of justice if, because
of improper instruction, "there is any significant possibility
that the jury may have based convictions" on impermissible
factual grounds).
 19

Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989) (judgment

vacated because "jury may well have convicted" on impermissible

basis, despite presence of permissible basis [citation

omitted]). See also Commonwealth v. Petrillo, 50 Mass. App. Ct.

104, 111 (2000), cert. denied, 532 U.S. 1030 (2001).

Accordingly, we must determine whether S.F.'s testimony

with respect to the pre-October 3, 1981, acts was supported by

"independent evidence that corroborates [her] allegation."

G. L. c. 277, § 63. In support of its assertion that there was

independent corroboration, the Commonwealth points to the

testimony of S.F.'s brother that, sometime in September, 1981,

when the family lived in Onset, he once saw the defendant

reclining next to S.F. with his head in her lap, while she lay

on her bed with "her pants . . . down." The question before us

is whether this was sufficient corroboration within the meaning

of the statute. In answering this question, we construe for the

first time the phrase "independent evidence that corroborates

the victim's allegation." Id.

The issue presented by the brother's account, as both

parties recognize, is that it did not coincide precisely with

any of the incidents to which the victim testified: S.F.'s

testimony with respect to the pre-October 3, 1981, acts spoke of

abuse that took place when the family lived in Wareham and West

Wareham, while her brother described an incident that happened
 20

later, when the family lived in Onset.20 In this way, the

brother's testimony presented evidence of uncharged sexual

misconduct.21 The Commonwealth argues that the statute's

corroboration requirement may be satisfied by such evidence,

which, in its view, "tends to support the conclusion that the

crime described . . . actually occurred." The defendant, on the

other hand, argues that proof of uncharged misconduct does not

suffice because there must be evidence "corroborating each

specific allegation" made by the victim. For the reasons that

follow, we conclude that the Commonwealth must present

corroborating evidence that relates to the specific criminal act

at issue. Consequently, evidence of uncharged misconduct, such

as that presented by the brother, does not itself suffice.

As with all statutes, G. L. c. 277, § 63, "must be

interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language, considered in connection with

the cause of its enactment, the mischief or imperfection to be

20
These locations are not elements of the crime.
Nonetheless, in conjunction with evidence of when the family
lived in these locations, they allow for a determination of the
approximate time that the incidents of rape took place.
21
There is no contention that the brother's testimony
formed an independent basis for conviction, as it did not
contain sufficient detail to demonstrate that the defendant
committed rape of a child. Commonwealth v. King, 445 Mass. 217,
222 (2005), cert. denied, 546 U.S. 1216 (2006) (must be "some
degree of penetration" by or of sexual organs).
 21

remedied and the main object to be accomplished, to the end that

the purpose of its framers may be effectuated." Commonwealth v.

Clark, 472 Mass. 120, 129 (2015), quoting Hanlon v. Rollins, 286

Mass. 444, 447 (1934).

Based on the statutory language, it is clear that the

victim's testimony alone is not enough to sustain a conviction.

G. L. c. 277, § 63 (evidence must be "independent"). It also is

clear that the required corroboration may not consist

"exclusively of the opinions of mental health professionals" and

that it must be of a sort "admissible during trial." Id. The

Legislature, however, did not further define what it meant by

the phrase "independent evidence that corroborates the victim's

allegation," nor did it state whether evidence of uncharged

sexual misconduct would suffice. Id. We therefore must look

for guidance to the "purpose and legislative history of the

statute." See Commonwealth v. Ray, 435 Mass. 249, 252 (2001),

quoting Massachusetts Hosp. Ass'n v. Department of Med. Sec.,

412 Mass. 340, 346 (1992).

The provision at issue here was added by St. 2006, c. 303,

"An Act increasing the statute of limitations for sexual crimes

against children" (act). By lengthening the limitations period,

which previously had been fifteen years, see G. L. c. 277, § 63,

as amended by St. 1996, c. 26, the Legislature sought "to give

child victims of sexual abuse the time they need to heal, come
 22

forward and still have their day in court." See Executive

Department Press Release, [Lieutenant Governor] Healey Signs

Tougher Penalties for Sex Offenders into Law (September 21,

2006).

The text of the statute suggests that there also was

concern that memories of childhood abuse, when recalled decades

later, may not be sufficiently precise to serve as the sole

basis for a criminal conviction.22 See G. L. c. 277, § 63

(victim's childhood memories alone insufficient for conviction,

even if bolstered by "opinions of mental health professionals");

Commonwealth v. Hatch, 438 Mass. 618, 622 (2003) ("primary

source of insight into the intent of the Legislature is the

language of the statute" [citation omitted]). This is

consistent with the act's sparse legislative history, which

reflects the views of some members of the Legislature that

extending the statute of limitations would impinge the

defendant's right to a fair trial. See State House News Service

(July 26, 2006) (statement of Rep. Fagan expressing concern that

extending or lifting statute of limitations might impinge right

22
See Stogner v. California, 539 U.S. 607, 631 (2003),
citing Holdsworth, Is It Repressed Memory with Delayed Recall or
Is It False Memory Syndrome? The Controversy and Its Potential
Legal Implications, 22 Law & Psychol. Rev. 103, 103–104 (1998)
("Memories fade, and witnesses can die or disappear. . . . Such
problems can plague child abuse cases, where recollection after
so many years may be uncertain, and 'recovered' memories
faulty").
 23

to "a fair trial" and would not "protect the innocent"

defendant); id. (statement of Rep. Loscocco that "I don't know

if I could remember where I [even] was" twenty-seven years ago).

Thus, the act's provisions apparently were intended not only to

protect the interests of victims, but to safeguard "the

principles of a fair trial." See id. (statement of Rep. Fagan).

See also id. (statement of Rep. Grant that bill is "a

compromise that recognizes both sides of this" issue).

Based on the above, it is evident that the act was intended

to balance the aforementioned concerns by allowing prosecutions

for such offenses to proceed at any time, while specifying that

indictments returned more than twenty-seven years after the fact

must be supported by "independent evidence that corroborates the

victim's allegation," St. 2006, c. 303, § 9, such that a

conviction cannot be based solely on the victim's recollections

of abuse decades earlier. In addition, the corroborative

evidence "shall not consist exclusively of the opinions of

mental health professionals," id., indicating that this evidence

must do more than bolster a victim's credibility -- it must be a

separate source of proof tending, in some way, to show the

defendant's guilt. See Healey Signs Tougher Penalties for Sex

Offenders into Law, supra ("a new provision extends the statute

of limitations 'to life' if independent admissible evidence,

such as [deoxyribonucleic acid (DNA)] samples, is available to
 24

corroborate a victim's allegation" [emphasis supplied]).23 In

sum, it appears that the act advances its aim of protecting "the

principles of a fair trial," see State House News Service, supra

(statement of Rep. Fagan), by requiring that a defendant not be

convicted unless there is at least some evidence of guilt in

addition to the victim's potentially imprecise memories.

While the Legislature did not define specifically what form

this additional evidence must take, the act was formulated

against the backdrop of other corroboration requirements

elsewhere in our statutory and common law. See Commonwealth v.

Clark, 446 Mass. 620, 625 (2006) (courts "look to preexisting

common law as an aid to the construction of undefined terms in a

statute"); Commonwealth v. McLeod, 437 Mass. 286, 290 (2002)

("Where the language of a statute is inconclusive, courts must

look to . . . analogous statutory material, and relevant case

law").

A common thread running through our cases involving other

corroboration requirements is that such evidence must relate to

the specific criminal act at issue. See, e.g., Commonwealth v.

Noble, 417 Mass. 341, 345 (1994) (if "[prior inconsistent grand

jury testimony] is the only source of support for the central

23
A bill introduced the previous year similarly would have
allowed an indictment to "be found and filed at any time" "if a
[deoxyribonucleic acid] sample . . . of the perpetrator is
collected and stored." See 2005 House Doc. No. 650.
 25

allegations of the charge," [citation omitted], there must be

evidence corroborating those central allegations; grand jury

testimony that defendant joint venturer knew about murder and

intended to participate was corroborated by evidence of

defendant's interactions with shooter at time of murder);

Commonwealth v. Costello, 411 Mass. 371, 375 (1991) ("alleged

victim's testimony . . . does corroborate many elements of the

defendant's [confession to rape of a child], [but it] does not

corroborate any element of the crime except for the age of the

alleged victim" and was therefore insufficient); Commonwealth v.

Silva, 401 Mass. 318, 324-325 & n.7 (1987) (in perjury case,

testimony that defendant lied must be "corroborat[ed by]

evidence [that] 'tend[s] to establish the defendant's guilt'"

and that is "inconsistent with the innocence of the defendant"

[citation omitted]; testimony that defendant falsely denied

making certain statements was corroborated by evidence that

person who heard statements only could have obtained information

in them from defendant); Commonwealth v. Forde, 392 Mass. 453,

458 (1984) (there must "be some evidence, besides the

confession, that the criminal act was committed by someone, that

is, that the crime was real and not imaginary"; corroboration

provided by victim's dead body); Commonwealth v. DeBrosky, 363

Mass. 718, 728-730 (1973) (construing G. L. c. 244, § 20I, court

stated that there must be some "corroborating evidence" "in
 26

support of the testimony of an immunized witness on at least one

element of proof essential to convict the defendant";

corroboration provided by two witnesses who saw person at scene

of crime fitting defendant's description).

We find particularly helpful the analysis in one such case,

Commonwealth v. Helfant, 398 Mass. 214, 215 (1986), in which, as

here, the defendant was charged with a sexual crime ("drugging

for unlawful sexual intercourse"). There, we stated that the

Commonwealth was required by statute to prove the crime with

evidence "corroborat[ing the victim's testimony] in a material

particular." Id. at 219 n.3, citing G. L. c. 272, § 11.

Surveying our cases dealing with comparable corroboration

requirements, we concluded that corroborating evidence must

relate to the specific criminal act at issue, and, in

particular, that it must consist of "some specific testimonial

fact, which, in the context of the case, is probative on an

element of the crime." Id. at 219 (corroboration provided by

testimony that drug used to subdue victim detected shortly

thereafter in her blood stream, and that needle marks were found

on her arm). In that case, the "evidence . . . corroborate[d] a

material particular of the [victim's] testimony -- that the

defendant administered a drug to her" -- as the "defendant could

not be convicted on the drugging charge without proof of the

injection." Id. at 219, 220. Indeed, we cited as corroboration
 27

only facts related to the act with which the defendant was

charged, id. at 218-220, despite substantial evidence of prior

sexual misconduct.24 Id. at 224-227.

The standard articulated in Commonwealth v. Helfant is

especially appropriate for defining the corroboration

requirement in the statute at issue here, for several reasons.

It distills our construction of comparable corroboration

requirements, derives from the interpretation of a statute

relating to sexual crimes, and furthers the statutory aim of

ensuring that the occurrence of the criminal act alleged by a

victim is proven, at least in part, by some source other than

the victim's testimony. Here, because the brother's testimony

presented evidence only of uncharged misconduct, and did not

provide "some specific testimonial fact," id. at 129, related to

the particular incidents of rape described in the "victim's

24
Our decision in Commonwealth v. King, 387 Mass. 464, 470
(1982) (uncharged sexual misconduct admissible to corroborate
victim's testimony because such evidence "prove[s] an
inclination to commit the [acts] charged"), is not to the
contrary. There, we held that the Commonwealth was permitted to
present evidence of uncharged sexual misconduct; we did not say
that such evidence would suffice where corroboration is
required. Id. But see People v. Yovanov, 69 Cal. App. 4th 392,
404 (1999) (under similarly-worded statute mandating
corroboration, "uncharged sexual misconduct . . . can be used to
corroborate a victim's allegation of sexual abuse"). The
California court's reasoning was based on legislative history
suggesting that "evidence of any prior sexual offenses is [a]
particularly probative" form of evidence. Id. We are unaware
of any comparable legislative history concerning G. L. c. 277,
§ 63.
 28

allegation," the Commonwealth's proof fell short. See G. L.

c. 277, § 63.

We recognize that, so construed, G. L. c. 277, § 63, sets a

high bar for prosecuting sexual offenses against children that

are alleged to have occurred many years before. Nonetheless,

our own cases suggest that this bar is not insuperable.25 Cf.

Commonwealth v. Feijoo, 419 Mass. 486, 496 (1995) (defendant

recorded sexual acts with minors and preserved recordings);

Commonwealth v. Abrahams, 85 Mass. App. Ct. 150, 151 (2014)

(defendant charged with rape of child left DNA evidence);

Commonwealth v. Villalta-Duarte, 55 Mass. App. Ct. 821, 822, 823

(2002) (confession to rape of child corroborated by testimony

that, around time of rape, victim "developed a 'serious' diaper

rash in her vaginal area" and "small scratches on her face").

Accordingly, because the Commonwealth's corroboration of

the pre-October 3, 1981, incidents fell short, and because the

jury returned a general verdict that could have been based

solely on those incidents, the defendant's conviction must be

vacated. At any new trial, the Commonwealth will be limited to

proceeding on the basis of incidents for which sufficient

evidence was introduced, i.e., incidents after October 3, 1981.

Because the evidence was insufficient with respect to the

25
See Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 64-
65 (2009) (defendant's confession to rape of child corroborated
by testimony of percipient witness).
 29

incidents on or before October 3,1981, the defendant may not be

retried for those incidents.26

ii. Lack of instruction on corroborating evidence. The

defendant maintains that, because independent corroboration was

required for the incidents that occurred prior to October 3,

1981, the jury should have been instructed regarding the

Commonwealth's obligation to provide corroborating evidence. We

agree.27

"When a party makes a request legally correct and

pertinent to the issues presented by the case, it is incumbent

on the judge to instruct the jury in a manner which

substantially covers the particular point in question."

Commonwealth v. Dane Entertainment Servs., Inc., 19 Mass. App.

Ct. 573, 578 (1985), S.C., 397 Mass. 197 (1986). In other

contexts where corroborating evidence is required, we have said

that it is appropriate for a trial judge to instruct the jury

26
Accordingly, we need not address the defendant's argument
that there was insufficient evidence that the incidents in West
Wareham took place via "mouth on vagina," as alleged in the
indictment, since those incidents took place before October 3,
1981.
27
Because the corroborative evidence offered by the
Commonwealth was, as explained, insufficient as a matter of law,
there will be no need for an instruction on this issue at any
new trial, as the defendant may not be retried for acts for
which corroboration was necessary, i.e., those on or before
October 3, 1981. We nevertheless choose to address the issue
"in order to provide guidance" to judges and parties in future
cases. See Commonwealth v. Agosto, 428 Mass. 31, 35 n.6 (1998).
 30

about the Commonwealth's obligation to provide such evidence.

See, e.g., Commonwealth v. Dyous, 436 Mass. 719, 727 n.11 (2002)

(approving judge's instruction on credibility of immunized

witness, which included statement that "defendant cannot be

convicted solely on the testimony of a person granted immunity"

and that there must be "some corroboration" "on at least one

element of proof essential to convict the defendant"). Cf. K.M.

Tuttman, Massachusetts Superior Court Criminal Practice Jury

Instructions § 4.18 (Mass. Cont. Legal Educ. 2d ed. 2013) ("You

may convict a person of perjury based on the testimony of a

single witness only if there is also evidence of a direct or

clear and compelling character that will support no explanation

that is consistent with the innocence of the defendant"). This

is so because, while it is the judge's role to determine whether

sufficient corroborative evidence has been presented, the jury

must decide whether to credit that evidence.28

28
See Weiler v. United States, 323 U.S. 606, 610 (1945) (in
perjury case, "[t]wo elements must enter into a determination
that corroborative evidence is sufficient: (1) that the
evidence, if true, substantiates the testimony . . . ; (2) that
the corroborative evidence is trustworthy. To resolve this
latter question is to determine the credibility of the
corroborative testimony, a function which belongs exclusively to
the jury"); United States v. Bryant, 420 F.2d 1327, 1331 (D.C.
Cir. 1969) ("The corroboration doctrines in this jurisdiction
require not only the existence of evidence sufficient to avoid a
directed verdict, but also that the case be sent to the jury
with instructions . . . that it is their responsibility as
jurors to determine whether evidence which they credit
establishes such corroboration").
 31

Here, the defendant's proposed instruction was, in essence,

"legally correct."29 See Commonwealth v. Dane Entertainment

Servs., Inc., supra. It was also "pertinent to the issues

presented by the case," id., as the credibility of the

corroborating evidence (i.e., the brother's testimony) was

contested at trial. This being so, the jury should have been

instructed regarding the Commonwealth's obligation to provide

independent evidence that related to the specific criminal acts

at issue and that is probative on an element of the crime.30 See

Commonwealth v. Helfant, 398 Mass. at 220.

d. Evidentiary issues. We address briefly certain

evidentiary issues raised by the defendant that may arise at any

new trial.

i. New Hampshire driver's record. The defendant's New

Hampshire driver's record was admitted in evidence without

having been disclosed during pretrial discovery, see Mass. R.

29
The defendant requested an instruction that "you must
determine whether the indictments, if brought [more than twenty-
seven] years [after] the alleged conduct, are supported by
independent corroborating evidence." While the judge was not
obligated to give the instruction in exactly this form, see
Commonwealth v. Johnston, 467 Mass. 674, 702 (2014), the
defendant's request accurately reflected the law as stated in
G. L. c. 277, § 63, and required that some instruction on the
issue be given.
30
Where appropriate, the jury should be instructed that
this corroboration may not consist solely of the opinions of
mental health professionals. See G. L. c. 277, § 63. The
Commonwealth did not offer such evidence in this case.
 32

Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501

(2005), and without the "double certification" required by Mass.

R. Crim. P. 40 (a) (1), 378 Mass. 917 (1979). See Reporters'

Notes to Rule 40, Mass. Ann. Laws, Rules of Criminal Procedure,

at 1739 (LexisNexis 2015). This was error.31

The defendant contends also that introduction of this

record violated his confrontation rights, a claim that depends

on whether the document was produced "under circumstances which

would lead an objective witness reasonably to believe that the

[document] would be available for use at a later trial[.]"

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009),

quoting Crawford v. Washington, 541 U.S. 36, 52 (2004). We

cannot determine from this record the circumstances under which

the document was created. Compare Commonwealth v. Parenteau,

460 Mass. 1, 8, 9 (2011) ("registry [of motor vehicles]

certificate was dated . . . nearly two months after the criminal

complaint . . . had issued against the defendant. As such, it

plainly was made for use at the defendant's trial"; "business

records are not admissible at trial 'if the regularly conducted

business activity is the production of evidence for use at

31
Nevertheless, because there is a "reasonable prospect"
that these deficiencies may be cured on retrial, we are not
precluded from considering the driver's record in assessing
whether the evidence of tolling was sufficient. Commonwealth v.
DiBenedetto, 414 Mass. 37, 46 n.14 (1992), S.C., 427 Mass. 414
(1998).
 33

trial'" [citation omitted]). More information about the

document's provenance must be elicited if it is to be admitted

on retrial without accompanying testimony.

ii. Evidence from DSS investigation. The defendant argues

that his right to present a defense was impaired by the judge's

ruling that he could not introduce evidence from a 2004 DSS

investigation involving S.F.'s daughter. Documentation from

that investigation showed that J.G.C. urged S.F. to file an

ultimately unsubstantiated report of abuse on behalf of her

child. The defendant argued in his motion to introduce portions

of this report that it showed J.G.C.'s "bias in perceiving

certain conduct as evidence of sexual abuse," and therefore

supported the defendant's claim that J.G.C. implanted false

memories in S.F. through suggestive questioning. The judge

ordered this evidence excluded as not "relevant."

A "defendant is not necessarily deprived of the right to

present his theory of defense simply because the judge excludes

a piece of evidence supporting such theory." Commonwealth v.

Jones, 464 Mass. 16, 19 n.5 (2012). "Here, exclusion of the

proffered testimony did not prevent the defendant from

presenting his theory" that J.G.C. engaged in suggestive

questioning. Id. The defendant pursued this theory in his

cross-examination of all three of the Commonwealth's witnesses -

- S.F., her brother, and J.G.C. -- and in his closing argument.
 34

Indeed, J.G.C. herself agreed during questioning by defense

counsel that, after discovering S.F. alone with the defendant in

the victim's bedroom in Onset, she "badgered" S.F. about whether

she had been abused.

Given that the defendant was permitted to present his

theory of defense, the question remains whether it was an abuse

of discretion to exclude the proffered evidence on the ground

that it was not relevant to that defense. Commonwealth v. Dunn,

407 Mass. 798, 807 (1990) ("Whether evidence is relevant in any

particular instance" is a "question[] within the sound

discretion of the [trial] judge"). It was not unreasonable for

the judge to conclude that evidence of J.G.C.'s behavior in an

unrelated 2004 DSS investigation was not relevant to whether she

engaged in suggestive questioning twenty-five years earlier. We

discern no abuse of discretion.

e. Evidence of prior bad acts. The defendant argues that

the Commonwealth's evidence on the acts charged in the

indictment was "overwhelmed" by evidence of prior bad acts,

i.e., acts against S.F. prior to September 29, 1979, the date of

the first act listed in the indictment. He notes, in

particular, that his family moved to Wareham in late 1978 or

early 1979, and that the incidents alleged to have taken place
 35

in Wareham might, therefore, have occurred before September 29,

1979.32

The general rule in "sexual assault cases[ is that] some

evidence of uncharged conduct may be admissible," but that a

"judge should . . . intervene[] to prevent the 'danger of

overwhelming a case with such bad act evidence.'" Commonwealth

v. Dwyer, 448 Mass. 122, 128-129 (2006), quoting Commonwealth v.

Roche, 44 Mass. App. Ct. 372, 380 (1998). Here, however, the

judge had no reason to intervene at the time the evidence was

presented, because the date at issue -- September 29, 1979 --

was inserted into the indictment only after the close of all the

evidence, in response to the defendant's argument that incidents

before that date were time barred.33 After the date was

inserted, the judge properly provided a forceful curative

instruction that the jury was to disregard entirely evidence of

acts from before September 29, 1979.34 "Jurors are presumed to

follow such instructions." Commonwealth v. Gonzalez, 473 Mass.

32
The defendant notes also that the incident in the
bathroom of the grandparents' house in Wareham took place when
S.F. was "about four." Given that S.F. turned four on August
19, 1979, approximately one month before the period covered by
the indictment, it is not clear whether this incident took place
during the period covered by the indictment. See note 2, supra.
33
Previously, the indictment had alleged that the incidents
of rape took place "on diverse dates between 1979 and 1981."
34
The judge instructed that "you are only to consider
conduct within th[e] periods [in the indictment]. You are not
to consider any incident outside of that time period."
 36

415, 427 (2015) ("the judge instructed the jury that they were

to disregard the references and not to take them into account in

any way").

3. Conclusion. The judgment of conviction is vacated and

set aside, and the case is remanded to the Superior Court for

further proceedings, as required, consistent with this opinion.

At any new trial, the defendant may be tried only for incidents

alleged in the indictment which are alleged to have occurred

after October 3, 1981.

So ordered.