COMMONWEALTH v. CURRIER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of one count of indecent assault and battery on a person under fourteen and one count of aggravated rape of a child. On appeal, the defendant claims various evidentiary errors. We affirm.

Background. The defendant was the boyfriend of the victim's older sister. During the relevant period, the victim had just turned thirteen years old and was living with her mother. However, because the mother was having surgery, the victim went to stay for one and one-half weeks at the home of her sister and the defendant. On the morning of November 11, 2014, the victim's sister took the mother to the hospital, leaving the victim and defendant home alone. In order to retrieve her cell phone,¹ the victim went into the bedroom shared by her sister and the defendant. She then joined the defendant on the bed in that room while they both used their cell phones. According to the victim, at one point, the defendant began rubbing the skin of her hip (the basis of the indecent assault and battery charge). She testified that shortly thereafter, the defendant reached under her pajama bottoms and underpants and inserted his fingers into her vagina. It is undisputed that at about the time the victim claimed this all occurred, the defendant sent the victim a text message asking, “Want me to stop?” When the victim sent a return text saying, “Yes,” the defendant responded by saying, “Could have said it, silly.” Eleven minutes later, the defendant sent the victim a text saying, “Smile,” an indication that he was taking her photograph.² Three minutes later, the defendant texted, “You mad at me now?” and “Or am I just a bum hole?”³ Apart from her initial text, the victim did not otherwise respond to these texts. The victim testified that directly after this had occurred, she used the electronic communication service known as Facebook Messenger to inform her own boyfriend of what just had happened. Testifying as the designated first complaint witness, the victim's boyfriend corroborated that the victim informed him of the incident in this manner.

A few days after the incident, the victim's sister and the defendant went through the victim's cell phone and discovered nude photographs of the victim and the victim's boyfriend that the two apparently had been exchanging with each other (a practice commonly known as “sexting”).⁴ The victim's sister alerted the mother to the sexting, and the sister was directed by the mother to retain the victim's cell phone. Shortly thereafter, the defendant walked into his kitchen and saw the victim and her boyfriend while the boyfriend's hand was down the victim's pants.

The defendant sought to admit evidence of the discovery of the sexting and the sexual contact between the victim and her boyfriend on the theory that such evidence showed that the victim had fabricated the allegations either to get back at him (for his role in unmasking the victim's sexual relationship with her boyfriend) or to divert attention from her own misbehavior. The judge ruled that such evidence could be admitted notwithstanding the rape shield law, G. L. c. 233, § 21B. However, he further ruled the Commonwealth could seek to rebut such evidence by eliciting testimony from the victim's mother indicating that the victim was reluctant to tell her about the alleged incident. Specifically, the mother was allowed to describe in detail the victim's demeanor when the mother confronted her about “something” that had happened. The judge prohibited the mother from testifying about what the victim said to her about the incident (or, for that matter, what the mother said to the victim).

The judge also allowed the Commonwealth to introduce text messages between the defendant and the victim in the months leading up to the incident. Many of those exchanges involved inquiries by the defendant about the victim's relationship with her boyfriend. While some of the exchanges could be characterized as the defendant's counselling the victim against rushing into sex with the boyfriend, others were of a more prurient nature, such as the defendant's repeatedly pressing the victim on whether she enjoyed touching her boyfriend's penis. There were additional text exchanges that painted the defendant in a negative light. For example, in the context of discussing her bad feelings about the appearance of her “butt,” the victim stated, “Suck my booty,” to which the defendant responded, “Maybe later, later.”

The Commonwealth was allowed to admit evidence of statements the defendant had made to police, including one that was admitted over the defendant's vigorous objections. In that statement, made in the context of a discussion of the defendant's relationship with the victim's older sister, the defendant reportedly stated “that age to him was just a number and meant nothing to him.”

Discussion. 1. First complaint doctrine. The parties agree that the victim's boyfriend properly testified as a first complaint witness. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The defendant maintains, however, that the victim's mother also effectively gave first complaint evidence when she testified about how the victim reacted when she confronted her, as did a police detective, when he testified to details concerning the investigation. We disagree.

As an initial matter, we note that while the mother did not identify the subject matter of her conversation with the victim -- saying only that she wanted to confront the victim about “something” she had heard from the grandmother of a friend of the victim -- we agree with the defendant that, in context, the jury would have understood that the subject matter was the November 11, 2014 incident. However, it remains true that the mother's testimony did not get into any substance of what either party stated in that conversation. Instead, the mother's testimony was about the victim's demeanor and her reluctance to speak.⁵ The mother's testimony thus did not serve to repeat the victim's accusations in an effort to corroborate them. Contrast Commonwealth v. Arana, 453 Mass. 214, 229 (2009).

It is well established that the first complaint doctrine does not prohibit the introduction of evidence that is admissible on other grounds. Commonwealth v. Aviles, 461 Mass. 60, 69-71 (2011). The testimony about the victim's reluctance to tell her mother about the incident was admissible as a fair response to the defendant's assertions that the victim had fabricated the allegation against him because of his role in discovering the sexual relationship between the victim and her boyfriend. See Commonwealth v. Santos, 465 Mass. 689, 701 (2013) (testimony concerning victim's demeanor by victim's mother, who was not first complaint witness, permissible to rebut defense's theory that victim's allegation was fabricated where “testimony did not repeat any details of the event, was relevant, and not merely cumulative of the [first complaint witness's] testimony”); Aviles, supra at 69-71 (testimony of victim pertaining to subsequent disclosure, though not admissible under first complaint doctrine properly admitted to rebut defendant's suggestion that victim's accusations were fabricated).

Nor do we discern a violation of the first complaint doctrine effected by a police detective's recounting certain investigative steps he had taken (e.g., his efforts to extract from the relevant electronic devices messages between the victim and the defendant, and between the victim and her boyfriend). Such steps had independent import and were not made simply to demonstrate that the “Commonwealth brought its resources to bear on this incident[,] creat[ing] the imprimatur of official belief in the [victim].” Stuckich, 450 Mass. at 457.⁶

2. The text messages. The defendant's argument that the text messages between him and the victim leading up to the incident should not have been admitted requires little discussion. In short, “the jury were entitled to evidence describing the whole relationship” between them. Commonwealth v. Robertson, 408 Mass. 747, 751 (1990). Although the damaging messages that the defendant sent to the victim do not rise to the level of “uncharged conduct,” “[i]n the context of sexual assault, [even] evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and the probative existence of the same passion or emotion at the time in issue” (quotations and citations omitted). Commonwealth v. Morris, 82 Mass. App. Ct. 427, 441 (2012). The judge did not abuse his discretion in admitting the text messages. Id.

3. “Age ․ was just a number.” The jury heard evidence that the defendant met the victim's sister when he was twenty-two years old and the sister was fourteen years old, that he visited the sister's household with great frequency after that, and that the sister moved in with him after she turned seventeen years old. That evidence was admitted without objection. As noted, the defendant did object to the admission of his reported statement to police “that age to him was just a number and meant nothing to him.” The defendant argues that this statement, coupled with the evidence about the age difference between him and the victim's sister, amounted to improper propensity evidence. We are unpersuaded.

The “age ․ was just a number” statement is hardly as prejudicial as the defendant claims. For one thing, there was no direct evidence that the defendant had begun a sexual relationship with the victim's sister before she came of age. See Morris, 82 Mass. App. Ct. at 441 (evidence that defendant and victim had sex before she turned sixteen did not amount to improper evidence of uncharged “ ‘bad act’ of statutory rape” where Commonwealth never mentioned statutory rape). For another, the defendant's admitting that he paid little attention to differences in age would hardly surprise jurors who independently learned that when he was twenty-eight years old, the defendant repeatedly had pressed the then-twelve year old victim for details about her touching her boyfriend's penis, and had indicated to her his desire to “[s]uck [her] booty.” Moreover, even to the extent the jury might have taken the “age ․ was just a number” statement as evidence that the defendant was attracted to the victim's sister when she was underage, this would not preclude the judge from admitting such evidence. See King, 387 Mass. at 472 (judge did not abuse discretion in admitting evidence of uncharged sexual conduct involving second child in same household where evidence “showed a common pattern or course of conduct toward the two children, and was sufficiently related in time and location to be logically probative”).

Conclusion. Discerning inadequate merit in the defendant's arguments, we affirm.

Judgments affirmed.

FOOTNOTES

1.   At the insistence of her mother, the victim was not allowed to possess her cell phone overnight.

2.   A photograph that the defendant had taken of the victim lying in bed was admitted in evidence.

3.   The defendant admitted to the text exchange with the victim, but claimed that the subject matter was not a sexual assault but his nagging her about what she wanted to eat for lunch. The jury evidently did not credit this explanation.

4.   The defendant and the victim's older sister both testified that it was the defendant who ascertained the victim's pass code and unlocked her cell phone, as he was “good with numbers.”

5.   To be sure, as the defendant pointed out at oral argument, if the jury reasonably could have inferred that the mother confronted the victim about the incident after hearing something about it from the grandmother of one of the victim's friends, then the jury additionally could have inferred that the victim must have told something about the incident to the friend. However, where there was virtually no substance supplied about whatever it was that the victim may have told the friend, evidence of this was too attenuated to be of consequence.

6.   We discern no merit in the defendant's additional argument that the admission of his interview with police, and the detective's being allowed to read from the transcript of that interview somehow violated the first complaint doctrine. Moreover, most of the substance of the interview was helpful to the defendant because he denied the allegations that the victim had made. The admission of the defendant's specific statement made during that interview that “age to him was just a number” is addressed separately, infra.