COMMONWEALTH v. SILVIA (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted of one count of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B, and he filed a notice of appeal, which the single justice deemed timely filed. He subsequently moved for a new trial, arguing that his trial counsel was ineffective. After a hearing, his motion was denied, and he filed a notice of appeal. Both appeals were docketed under the present number and are now before us.

The defendant argues first that there was insufficient evidence to support his conviction. “On a claim of insufficient evidence, we review the evidence in the light most favorable to the Commonwealth to determine whether a rational juror could find all of the elements of the charged offense beyond a reasonable doubt.” Commonwealth v. Coates, 89 Mass. App. Ct. 728, 730-731 (2016), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We draw all inferences from the evidence in favor of the Commonwealth. “An inference drawn from circumstantial evidence ‘need only be reasonable and possible; it need not be necessary or inescapable.’ ” Coates, supra at 731, quoting Commonwealth v. Murphy, 70 Mass. App. Ct. 774, 777 (2007).

The evidence showed that when the victim was three years old, she lived with the defendant and his wife for a year due to concerns raised by the Department of Children and Families about the victim remaining with her mother. Although the victim, who was nine at the time she testified, gave a slightly different age, stating that she thought she was five or six, rather than three, she described the horrible act of sexual abuse perpetrated on her, and stated that it was perpetrated by “Unkie.” Although there was some contradictory evidence given by the defendant's father, both the victim and her mother testified that the only person the victim called by that name was the defendant.

The victim testified that “Unkie” lived with “Auntie.” The victim testified that “Auntie” worked at the time at the Ninety-Nine Restaurant, which the testimony of the defendant's father corroborated, and that she was at work at the time the crime was committed. The victim testified that “Unkie” and “Auntie” had a dog named Max, which the victim's mother and the defendant's father testified that they did. Notably, she also testified that the aunt and uncle had two dogs, one in addition to Max, which was apparently not correct, but the jury could have believed some but not all of her testimony. Commonwealth v. Spinucci, 472 Mass. 872, 878 (2015). The victim could not identify the defendant at trial, but she was not required to do so. The defendant had in fact moved to preclude the victim from identifying the perpetrator in court, although that motion was denied. In any event, the crime occurred many years before, and the mother testified that the defendant's appearance had changed substantially; specifically, that at the time of the crime, he had had a full beard and a shaved head.

All this evidence in the Commonwealth's case was certainly sufficient to support the verdict. And the Commonwealth's case did not deteriorate during the defendant's case.

The defendant next argues that “while [the victim] may have been competent at the age of nine to testify at trial, she was not necessarily competent to relate events that might have occurred when she was three years old.” The defendant raised no objection and made no request for a hearing on the matter.

We find no abuse of discretion in the judge's conclusion that no hearing on the matter was required, but even if there were an error, given the victim's ability to recall specific details of both the alleged sexual abuse and of the defendant and his home, we would conclude there was no substantial risk of a miscarriage of justice.

The defendant next argues that the victim's mother, during her first complaint testimony, testified to two things that went beyond the scope of the victim's testimony. First, she said that the victim had described hand movements that the perpetrator made during the incident, and, second, she testified that she was told by the victim that the perpetrator had told the victim to be a good girl, to listen to him, and say nothing to “Auntie.”

There having been no objection, we first must assess whether there was error, and then whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Desiderio, 491 Mass. 809, 815 (2023). In Commonwealth v. Rivera, 83 Mass. App. Ct. 581 (2013), we concluded that first complaint testimony that includes allegations absent from the victim's testimony is not “prohibited by the case law,” and that first complaint testimony did not require “the complete congruence of the testimony of the complainant and the complaint witness.” Id. at 586. We also held that, given the judge's limiting instructions to the jury, any of the first complaint witness's testimony in that case which exceeded the scope of the victim's allegations would have had no influence or only slight effect upon the jury. Id. at 587.

In light of Rivera, we too find no error in the first complaint testimony. But even if there were error, under the weaker standard applicable here -- whether a substantial risk of a miscarriage of justice was created, rather than the prejudicial error standard utilized in Rivera, 83 Mass. App. Ct. at 584 -- we would conclude that there was no substantial risk of a miscarriage of justice. Although the judge gave the first complaint instruction, informing the jury that it could consider the first complaint evidence only to assess the credibility and reliability of the victim's testimony, at the time of the testimony and not during the final charge, we think it was sufficient here.

Of course, the judge is also empowered to exclude any evidence that is more unfairly prejudicial than probative, but no objection was raised to this testimony on that or any other ground, and we see no abuse of discretion in the admission of this testimony given our deference to the judgment of the trial judge. Nor, if we did, would we find a substantial risk of a miscarriage of justice.

In light of our conclusions, we are unpersuaded that the motion judge, who was also the trial judge, abused discretion or committed other error of law in denying the defendant's new trial motion. See Commonwealth v. Silva, 455 Mass. 503, 528 (2009) (no “basis for a determination of ineffective assistance of counsel” where review showed “that there was no [underlying] error, or that the error would not likely have influenced the jury's conclusion”). See also Commonwealth v. Amaral, 482 Mass. 496, 509 (2019) (“Reversal is particularly rare where the judge who acted on the motion was also the trial judge” [quotation omitted]).

Judgment affirmed.

Order denying motion for new trial affirmed.