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18-P-456 Appeals Court
COMMONWEALTH vs. JEFFREY DOBBINS.
No. 18-P-456.
Hampden. September 16, 2019. - November 25, 2019.
Present: Kinder, Sacks, & Shin, JJ.
Indecent Assault and Battery. Rape. Assault with Intent to
Rape. Statute, Construction. Evidence, Age, Opinion,
Exculpatory, Relevancy and materiality. Practice,
Criminal, New trial, Assistance of counsel. Constitutional
Law, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on May 1, 2012.
The cases were tried before John S. Ferrara, J., and a
motion for a new trial, filed on February 10, 2015, was heard by
him.
Michael P. Gerace for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.
SHIN, J. After a jury trial in Superior Court, the
defendant was convicted of rape of a child with force, assault
of a child with intent to rape, and two charges of indecent
assault and battery on a person fourteen years of age or older
2
(G. L. c. 265, § 13H). We consolidated the defendant's direct
appeal with his appeal from the order denying his motion for a
new trial. In the consolidated appeal, the defendant argues
that his convictions of indecent assault and battery should be
reversed because the evidence was insufficient to establish that
the victim was fourteen years of age or older at the time of the
assaults, that the judge abused his discretion by allowing a lay
witness to testify that the victim has a learning disability,
and that a new trial is warranted because defense counsel was
constitutionally ineffective. We conclude that proof that the
victim "has attained age fourteen" is not required to sustain a
conviction of indecent assault and battery under G. L. c. 265,
§ 13H, so any failure of proof in that regard is not a basis to
reverse the defendant's convictions. Discerning no merit to the
defendant's remaining arguments, we affirm.
Background. The jury could have found the following facts.
The victim was sixteen years old at the time of trial. She had
been living with her grandmother, her legal guardian, since she
was young but visited her mother at her apartment approximately
once or twice per month. The mother has five other children,
two of whom lived with her; the other three lived with their
father. When the victim stayed overnight at the mother's
apartment, she usually slept on the sofa in the downstairs
living room or on the floor of the mother's upstairs bedroom.
3
The defendant and the mother were dating, and he stayed
overnight at the apartment on a regular basis.
The defendant sexually assaulted the victim multiple times
when she was "[t]hirteen, fourteen" years old.1 On several
nights when the victim was sleeping in the living room, the
defendant would approach the victim, ask her to "suck his dick,"
and then force her mouth open with his hands and insert his
penis. The victim estimated that this happened twenty to
twenty-five times.
The defendant also assaulted the victim in the mother's
bedroom. After the mother fell asleep, the defendant would
reach down to where the victim lay on the floor and touch her
breasts and vaginal area over her pajamas. The victim testified
that this happened "[a] few times."
Discussion. 1. Indecent assault and battery convictions.
General Laws c. 265, § 13H, provides in relevant part that
"[w]hoever commits an indecent assault and battery on a person
who has attained age fourteen shall be punished." Citing the
statute and Instruction 6.500 of the Criminal Model Jury
Instructions for Use in the District Court (2009) (in effect at
1 The victim turned fourteen on May 25, 2011. She believed
that the assaults began in 2010, but was uncertain and could not
give a definitive time frame.
4
the time of trial),2 the defendant contends that the Commonwealth
was obliged to prove as an element of § 13H that the victim had
"attained age fourteen" when the assaults occurred. We conclude
to the contrary that § 13H does not require such proof.
"Our primary duty in interpreting a statute is 'to
effectuate the intent of the Legislature in enacting it.'"
Commonwealth v. Brown, 479 Mass. 600, 606 (2018), quoting
Sheehan v. Weaver, 467 Mass. 734, 737 (2014). Thus, "[w]e will
not adopt a literal construction of a statute if the
consequences of such construction are absurd or unreasonable."
Brown, supra, quoting Attorney Gen. v. School Comm. of Essex,
387 Mass. 326, 336 (1982). Rather, we will "assume the
Legislature intended to act reasonably." Commonwealth v. Muir,
84 Mass. App. Ct. 635, 640 (2013), quoting School Comm. of
Essex, supra.
The Legislature enacted § 13H through St. 1980, c. 459,
entitled "An Act Providing Graduated Penalties and Victim
Compensation for the Crime of Rape and Related Offenses." At
2 The judge instructed the jury in accordance with § 3.5 of
the Massachusetts Superior Court Criminal Practice Jury
Instructions (2d ed. 2013) that the Commonwealth had to prove
"that the alleged victim was at least [fourteen] years of age at
the time of the alleged offense." While the Superior Court
model instruction has not changed, the current version of the
District Court model instruction does not include age as an
element of the offense. See Instruction 6.500 of the Criminal
Model Jury Instructions for Use in the District Court (2018).
5
the same time, the Legislature amended G. L. c. 265, § 13B --
which criminalizes indecent assault and battery on a child under
the age of fourteen -- by, among other things, increasing the
penalties applicable to that offense. Under § 13B an indecent
assault and battery on a child under the age of fourteen is
punishable by up to ten years in State prison. In contrast,
under § 13H, an indecent assault and battery on a person
fourteen years of age or older is punishable by up to five years
in State prison.
Considering these statutory provisions together, we think
it apparent that the language "on a person who has attained age
fourteen" in § 13H was intended to differentiate that crime from
the crime of indecent assault and battery on a child under age
fourteen. It was not intended to create an element that the
Commonwealth must prove beyond a reasonable doubt. Were we to
conclude otherwise, it would mean that a defendant in a case
such as this would avoid prosecution altogether solely because
of the victim's inability to recall with certainty whether she
was under or over the age of fourteen at the time of the
offense.3 We are confident that the Legislature did not intend
to create such an anomaly.
3 Age is an element of the offense of indecent assault and
battery on a child under the age of fourteen. See Commonwealth
v. Traynor, 40 Mass. App. Ct. 527, 528 (1996).
6
We addressed a similar question of statutory construction
in Muir, 84 Mass. App. Ct. at 639-641. At issue there was
subsection 1 of G. L. c. 90, § 24 (2) (a1/2), which punishes
whoever, while operating a motor vehicle on a public way, leaves
the scene of an accident "after knowingly colliding with or
otherwise causing injury to any person not resulting in the
death of any person." We concluded that "not resulting in the
death of any person" is not an element of subsection 1, but
instead was intended to differentiate subsection 1 from
subsection 2, which makes it a felony to leave the scene of an
accident involving death with the intent of avoiding prosecution
or evading apprehension. Muir, supra at 640. A contrary
reading, we reasoned, would lead to the unreasonable result that
it would be a criminal offense to leave the scene of an accident
causing injury (but not death) regardless of the purpose for
leaving, but lawful to leave the scene of an accident causing
death if the purpose for leaving was not to avoid prosecution or
evade apprehension. See id. at 640-641. See also Commonwealth
v. Lockwood, 95 Mass. App. Ct. 189, 197 & n.7 (2019) ("no person
lawfully therein being put in fear" not element of G. L. c. 266,
§ 18, but rather "a means by which to distinguish § 18 from the
more serious crime" of G. L. c. 266, § 17, which does require
proof of person "being put in fear").
7
Likewise here, we decline to ascribe to the Legislature an
intent that would lead to an unreasonable result. We thus
conclude that the Commonwealth was not required to prove that
the victim was age fourteen or older to sustain the convictions
of indecent assault and battery under § 13H. The jury
instruction, which erroneously added to the Commonwealth's
burden of proof, does not change our conclusion. "A jury
instruction that 'add[s] elements to the government's burden of
proof beyond those required by statute . . . may not become the
law of the case' if it is 'patently incorrect.'" Commonwealth
v. Buttimer, 482 Mass. 754, 766 n.17 (2019), quoting United
States v. Zanghi, 189 F.3d 71, 79 (1999), cert. denied, 528 U.S.
1097 (2000). Instead, we must look to "the elements of the
charged crime," not "the erroneously heightened command in the
jury instruction" in assessing the sufficiency of the evidence.
Buttimer, supra, quoting Musacchio v. United States, 136 S. Ct.
709, 715 (2016).4
2. Testimony about victim's learning disability. The
defendant next argues that the judge abused his discretion by
allowing the grandmother to testify, over the defendant's
4 Although we held in Commonwealth v. Pinero, 49 Mass. App.
Ct. 397, 399 (2000), that an erroneous jury instruction became
the law of the case, the issue arose there in a different
context -- namely, where the instruction created a risk of
duplicative convictions.
8
objection, that the victim had "an individual educational plan,
focusing on her learning specifically because she has a learning
disability." In particular, the defendant argues that the
grandmother's testimony constituted improper lay opinion and
that the fact of the victim's learning disability was
exculpatory evidence that the Commonwealth should have disclosed
before trial. We disagree on both counts.
The testimony was not improper lay opinion. As established
at trial, the grandmother was involved with the victim since her
birth, was the victim's legal guardian, and was "very involved
in her education." That the victim had an individualized
education plan because she has a learning disability was not an
opinion based on "scientific, technical, or other specialized
knowledge" necessitating an expert. Mass. G. Evid. § 701(c)
(2019). Rather, the judge was within his discretion to admit
the testimony as a statement of observed fact. See Commonwealth
v. Bonds, 445 Mass. 821, 830 n.14 (2006) ("The mother, who
obviously had intimate and lengthy experience caring for [the
victim], was well situated to explain to the jury how [she] was
affected by her disease"); Parker v. Boston & Hingham Steamboat
Co., 109 Mass. 449, 451 (1872) ("The witness had the means of
observing the plaintiff from time to time, and her testimony was
as to facts within her observation and not a mere expression of
opinion reached by a process of reasoning and deduction").
9
Nor was the fact of the victim's learning disability
exculpatory evidence that the Commonwealth had to disclose. The
defendant contends that, had he known of the evidence, he could
have potentially called an expert to testify that the victim's
learning disability was unrelated to her difficulties recalling
time frames, which he says would have diminished the
grandmother's and the victim's credibility. But neither the
grandmother nor the victim gave testimony linking the victim's
learning disability to her difficulties recalling time frames.5
The defendant has thus failed to show that the evidence was
exculpatory. See Commonwealth v. Healy, 438 Mass. 672, 679
(2003) ("To prevail on a claim that the prosecution failed to
disclose exculpatory evidence, a defendant must first prove that
the evidence was, in fact, exculpatory").
Furthermore, the defendant suffered no prejudice from the
admission of the testimony. The grandmother made only fleeting
mention of the victim's learning disability, and the prosecutor
made no reference to it in her closing argument. The record
does not support the defendant's claim that the prosecutor made
use of the testimony to elicit sympathy for the victim.
5 The defendant agrees that it was proper for the
grandmother to testify regarding the victim's difficulties with
time frames and concomitant need to record events in a calendar.
10
3. Ineffective assistance of counsel. In his motion for a
new trial, the defendant argued that trial counsel was
ineffective for failing to investigate the victim's sister as a
potential witness and for failing to call the victim's mother to
testify. After four days of evidentiary hearings, the same
judge who presided at trial denied the defendant's motion in a
thorough written decision. We review the judge's decision only
"to determine whether there has been a significant error of law
or other abuse of discretion" (citation omitted). Commonwealth
v. Weichell, 446 Mass. 785, 799 (2006). We "extend[] special
deference to the action of a motion judge who [as here] was also
the trial judge." Commonwealth v. Rosario, 460 Mass. 181, 195
(2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307
(1986).
The judge made the following factual findings, which are
not clearly erroneous, regarding the defendant's claim that
counsel was ineffective for not investigating the victim's
sister. After trial ended, the sister spoke to the defendant by
telephone and told him that it was the victim's fault that he
was in prison and that the grandmother had pressured the victim
into making false allegations against him. The sister later
signed an affidavit to the same effect after she was contacted
by the defendant's appellate counsel. At the evidentiary
hearing, however, the sister recanted, testifying that the
11
victim never said that she had made up the allegations.
Instead, according to the sister, the victim disclosed the
sexual assaults to her, but when the sister urged the victim to
tell the mother, the victim said she did not want to because it
could "break up their home."
Based on these facts, the judge was within his discretion
to conclude that the defendant failed to demonstrate that trial
counsel was ineffective for failure to investigate the sister.
The sister's telephone call with the defendant, and her signing
of the affidavit, occurred after trial. The defendant has not
shown why an ordinary fallible attorney would have had reason to
know -- any time before or during trial -- that the sister had
potentially exculpatory information. See Commonwealth v. Denis,
442 Mass. 617, 629 (2004), quoting Strickland v. Washington, 466
U.S. 668, 691 (1984) ("While counsel certainly has 'a duty to
make reasonable investigations,' counsel is also afforded the
opportunity to 'make a reasonable decision that makes particular
investigations unnecessary'"). Furthermore, given the sister's
later recantation, the judge was warranted in concluding that
the defendant failed to show that he was deprived of a
substantial ground of defense. See Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). The defendant speculates that the
sister would have testified consistently with her affidavit.
But as the judge found, the sister could have testified as she
12
did at the evidentiary hearing, and had she done so, her
testimony would have been "both inculpatory and exculpatory" as
"[i]t consisted of a complaint recounting the abuse and then an
immediate recantation when [the sister] suggested disclosure to
[the mother]."
With regard to the defendant's claim that trial counsel
should have called the victim's mother to testify, the judge was
within his discretion to conclude that counsel's decision was
not manifestly unreasonable.6 At the evidentiary hearing, the
mother testified that her other children sometimes visited at
the same time as the victim and that some would sleep in the
living room with her. Although the defendant contends that this
evidence could have been used to impeach the victim's testimony,
the mother also testified that the victim sometimes slept alone
in the living room. Thus, as the judge found, the mother's
"testimony would not have negated the possibility that the
assaults occurred as described by the victim." The mother's
testimony would also have corroborated other aspects of the
victim's testimony, including that the victim sometimes slept in
6 The judge credited trial counsel's testimony that he spoke
with the mother numerous times before trial and conducted two
lengthy interviews. The judge could thus infer that counsel
made a strategic decision not to call the mother to testify. A
strategic decision constitutes ineffective assistance only if it
was "manifestly unreasonable" when made. Commonwealth v.
Kolenovic, 478 Mass. 189, 193 (2017), quoting Commonwealth v.
Degro, 432 Mass. 319, 332 (2000).
13
the mother's bedroom on the floor closest to the defendant's
side of the bed. For these reasons it was not manifestly
unreasonable for counsel to choose not to call the mother to
testify, and for the same reasons, that choice did not deprive
the defendant of a substantial ground of defense.7
Judgments affirmed.
Order denying motion for new
trial affirmed.
7 The defendant also suggests on appeal that trial counsel
did not adequately investigate the mother, pointing to counsel's
statement in his affidavit that he "was unaware that [the
mother] would have provided facts about the sleeping
arrangements of [the victim]." The defendant posits that, as a
result, "other potential percipient witnesses" (e.g., the other
children) were not investigated. But the defendant's motion for
a new trial did not argue that counsel was ineffective for this
reason, and so any such claim is waived. See Commonwealth v.
Velez, 82 Mass. App. Ct. 12, 19 (2012). In any event, the
defendant has failed to show that these other potential
witnesses would have materially aided the defense, for instance
by significantly narrowing the number of times the victim slept
alone in the living room.
Commonwealth v. Dobbins
Combined Opinion