COMMONWEALTH v. GUIROLA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of assault and battery.² He appeals, arguing only that evidence of his and the victim's ages was irrelevant or otherwise unduly prejudicial and should not have been admitted. We affirm.

Background. The victim and the defendant met online and began a relationship. At the time, the defendant was thirty-five years old and the victim was sixteen years old. After their relationship ended, the victim went to the defendant's home to return some clothing. According to the victim's testimony, the defendant saw a text message on her cell phone and began yelling. The victim reached for pepper spray, and the defendant threatened her, hit her, “ripped out” her earrings, pushed her, strangled her, and threw her cell phone. The defendant largely disagreed with the victim's version of events, but he admitted to hitting her hand to prevent her from using the pepper spray, grabbing her collar, and pushing her toward the door.

Discussion. The defendant asserts that evidence of his and the victim's ages should have been excluded because it was irrelevant and highly prejudicial. The Commonwealth counters that the defendant failed to preserve this issue. We conclude that the defendant's claim was preserved but that it lacks merit.

1. Preservation. After the judge denied the defendant's motion in limine to exclude the age evidence, she instructed the defendant that, if he wished to preserve the issue, he needed to make additional objections to the evidence at trial. The defendant did not do so. On appeal, he cites the Supreme Judicial Court's holding that, to preserve an evidentiary objection, “[w]e will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied.” Commonwealth v. Grady, 474 Mass. 715, 719 (2016). The court cautioned that “this approach is not as broad as it may seem. An objection at the motion in limine stage will preserve a defendant's appellate rights only if what is objectionable at trial was specifically the subject of the motion in limine ․ Where what is being addressed and resolved at the motion in limine stage differs from what occurs at trial, the defendant still must object at trial to preserve his or her appellate rights.” Id. Those caveats are important, but in this instance, the objection that the defendant raised in his motion in limine was precisely the same as the one he presses on appeal. The Commonwealth has not shown any reason why the principal rule of Grady should not apply here. We therefore treat the issue as preserved.

2. Admission of age evidence. The judge did not abuse her discretion by allowing the age evidence to be introduced. The evidence was relevant and not unduly prejudicial.

First, the victim's and defendant's ages had a significant bearing on the defendant's assertion of self-defense. To refute that defense, the Commonwealth was required to prove beyond a reasonable doubt that the defendant either (1) did not have “a reasonable concern for [his] safety,” (2) did not “pursue[ ] all possible alternatives to combat,” or (3) used force “greater than required in the circumstances.” Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 (1999). The victim's and defendant's ages were relevant factors in the jury's determination whether the defendant's concern and physical response were reasonable.

Second, the evidence was relevant to the charge of assault and battery on a family or household member. Because the defendant was not a member of the victim's family, the Commonwealth was required to prove that the victim and the defendant were in a “substantive dating relationship,” which depends in part on the type of relationship they had. Commonwealth v. Dustin, 476 Mass. 1003, 1005 (2016). Here, as in the G. L. c. 209A context,³ the type of relationship is affected by the victim's and defendant's ages because an age gap could indicate that they “did not stand on equal footing in terms of emotional maturity. One party to the relationship was a minor, to whom we afford unique protection, ․ and the other party was an adult ․” E.C.O. v. Compton, 464 Mass. 558, 564 (2013) (involving sixteen year old plaintiff and twenty-four year old defendant). Here, the ages were similarly relevant.

Finally, we are unpersuaded by the defendant's argument that the age evidence, even if relevant, was unduly prejudicial. We see nothing inflammatory nor inherently prejudicial in the information. “[D]iscretion is vested in the judge to determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to the opponent of its admissibility.” Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422 (1988). See Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). The judge did not abuse that discretion here.

Although the defendant argues that the age difference could have caused the jury to infer sexual misconduct, the judge could properly have determined that risk to be minimal. There was no evidence or discussion of any sexual activity between the victim and the defendant, let alone any sexual assault, and we have been given no reason to believe that the jury considered the age difference to be inflammatory. This is especially so because the judge, at the defendant's request, questioned all potential jurors regarding their ability to be fair and impartial despite an age gap between the victim and the defendant. Furthermore, the jury acquitted the defendant of all charges but the lesser included assault and battery offense. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999) (jury's acquittal on one charge suggested they “were not swayed by emotion”); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010) (jury's acquittal on two of three charges showed prosecutor's statements “were unlikely to elicit sympathy or otherwise inflame the jury”).

Judgment affirmed.

FOOTNOTES

2.   He was initially charged with six offenses: assault and battery on a family or household member, pursuant to G. L. c. 265, § 13M (a); strangulation or suffocation, pursuant to G. L. c. 265, § 15D (b); kidnapping, pursuant to G. L. c. 265, § 26; witness intimidation, pursuant to G. L. c. 268, § 13B; threat to commit crime, pursuant to G. L. c. 275, § 2; and attempted murder, pursuant to G. L. c. 265, § 16. He was convicted only of the lesser included charge of assault and battery. The witness intimidation and attempted murder charges were dismissed, the former on the defendant's motion, the latter on the Commonwealth's. The jury found the defendant not guilty of the other charges.

3.   Cases discussing substantive dating relationships in connection with c. 209A abuse prevention orders apply to the definition of the term under G. L. c. 265, § 13M. See Dustin, 476 Mass. at 1005.