COMMONWEALTH v. SOK KHIM (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Sok Khim, was convicted of rape and abuse of a child under sixteen years, aggravated by an age difference of ten or more years, G. L. c. 265, § 23A (count 1); rape of a child with force, G. L. c. 265, § 22A (count 2); rape, G. L. c. 265, § 22 (b) (count 3); and two counts of indecent assault and battery on a person with an intellectual disability, G. L. c. 265, § 13F (counts 4 and 5). Jane,² the victim, was his girlfriend's daughter. On appeal, the defendant argues that his conviction on count 1 should be vacated because the jury instructions impermissibly broadened the indictment by including “unnatural” sexual intercourse as culpable conduct while the indictment specified only “natural” intercourse, and that he must be granted a new trial because Jane's mother testified extensively about her interactions with the Department of Children and Families (DCF). We affirm.

Background. The jury could have found the following facts. Jane was born in 1994 and is an intellectually-disabled person. She lived with her mother, other relatives, and the defendant, who was her mother's boyfriend. They lived in a series of homes: two in Lowell, first on Willie Street (first home) from around 2005 to August 2007, then on Fort Hill Avenue (second home) from August 2007 to December 2009, and then in Tyngsboro (third home). Because the defendant challenges count 1, which alleged acts on diverse dates between October 22, 2008, and May 18, 2010, we focus primarily on the acts the jury could have found were committed in the second and third homes.

At the first home, Jane was trying to take a shower and was undressed. The defendant came in the bathroom and touched her breasts with his hands and put his penis in her vagina and moved. This hurt her and she was very scared. Another time at the first home, the defendant came down from his bedroom late at night. Jane and her niece were sleeping on a bed in the living room. Jane was one or two years older and the niece was in fourth or fifth grade. Jane's niece felt movement and saw the defendant “kind of on top” of Jane. The niece kicked the defendant and he left. In a third incident, when the family was moving to the second home, the defendant touched his penis to Jane's vagina. Jane also testified that the defendant touched her with his penis ³ and mouth in the third home more than once, like he did in the shower at the first home. The defendant used the same body parts to touch Jane in the same way in the second home. The defendant instructed Jane not to reveal his sexual assaults and gave her money, ten or twenty dollars at a time, so that she would keep the assaults secret. The defendant continued raping Jane at all three homes.

The defendant impregnated Jane. Because she had a life-threatening heart condition, her pregnancy was terminated in November 2011. Deoxyribonucleic acid (DNA) testing of the fetus and the defendant revealed that the probability that the defendant fathered the fetus was 99.99 percent as compared to unrelated untested males in the North American population.

Discussion. 1. Jury instruction. Count 1 alleged that the defendant violated G. L. c. 265, § 23A, by “natural” sexual intercourse. The judge, however, instructed the jury that to convict the defendant on count 1, they must find beyond a reasonable doubt that the defendant engaged in natural or unnatural sexual intercourse with Jane. “Natural” sexual intercourse is generally “the penetration of the female sex organ by the male sex organ, with or without emission.” Commonwealth v. Gallant, 373 Mass. 577, 584 (1977). “Unnatural” sexual intercourse “include[s] oral and anal intercourse, including ․ cunnilingus, and other intrusions of a part of a person's body or other object into the genital ․ opening of another person's body.”⁴ Id. Because this was error to which the defendant did not object, our review is limited to determining whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 692-693 (2000).

The defendant relies on Commonwealth v. Garcia, 95 Mass. App. Ct. 1 (2019), for the proposition that “[c]rimes must be ‘proved as charged,’ so as to ‘protect[ ] the grand jury's role in the criminal process and ensure[ ] that the defendant has proper notice of the charges against him.’ ” Id. at 4, quoting Commonwealth v. Hobbs, 385 Mass. 863, 869 (1982). That case is distinguishable, however. In Garcia, the indictment alleged “natural” sexual intercourse, but the evidence was of “unnatural” sexual intercourse and the verdict slip for that indictment referenced “unnatural” sexual intercourse. Garcia, supra at 5-6. The defendant's reliance on Commonwealth v. Mayotte, 475 Mass. 254 (2016), is similarly misplaced. In Mayotte, the indictment charged reckless endangerment on a theory of serious bodily injury, but no evidence was presented on this theory. Instead, the evidence related to the defendant's responsibility for her husband's sexual abuse of the victim and the judge introduced this theory in the jury instructions. The instructions expanded the indictment to encompass both theories such that the defendant was convicted of a crime for which she had not been indicted. See id. at 264-265.

Here, there is no risk that the defendant was convicted of a crime for which he was not indicted or for which there was no evidence. The misstatement at issue in this case was a slip of the tongue unnoticed by defense counsel or the Commonwealth. “[W]e will not require a new trial if we are confident that, had the error not been made, the jury verdict would have been the same.” Commonwealth v. Oliviera, 445 Mass. 837, 845 (2006). Here, any risk of confusion created by the judge's instruction was mitigated because the judge informed the jury, “[a]ttached to each verdict slip is the actual indictment, which lists the charges and the dates of the alleged offenses.” The indictment for count 1 listed only “natural” sexual intercourse. The judge also invited the jury to inspect the indictments, stating that “you must unanimously agree that the Commonwealth has proved Sok Khim committed the offense on at least one of the specific occasions charged in the indictments.” The judge also instructed the jury that the specific crimes charged were in the indictments and suggested that the foreperson read the verdict slips aloud “so that each of you knows what it is you are deliberating on.”⁵ We discern no substantial risk of a miscarriage of justice.

2. DCF's involvement with the family. During direct examination of Jane's mother, the prosecutor attempted to establish where and when she, Jane, and the defendant had lived to establish the place and year of the defendant's assaults. When asked when Jane stopped living with the mother she did not answer with a date; she said, “Since this happened, and she was taken away from me.” The defendant argues that this testimony prejudiced him because DCF believed that he was sexually abusing Jane. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) (“[t]he fact that the Commonwealth brought its resources to bear on this incident creates the imprimatur of official belief in the complainant”). Again, because the defendant did not object, we review for a substantial risk of a miscarriage of justice. See Bynoe, 49 Mass. App. Ct. at 692-693. We discern no such risk where DNA testing revealed that the defendant had impregnated Jane.

The defendant also asserts that his trial counsel was ineffective for not objecting or moving to strike the mother's testimony about DCF and for eliciting additional testimony. However, the defendant did not raise this claim through the preferred method of a motion for new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Thus, the defendant presents a claim in its “ ‘weakest form’ because ‘it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.’ ” Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). “Because the defendant raises [this] claim[ ] for the first time on direct appeal, [its] factual basis must appear ‘indisputably on the trial record’ for us to resolve [it.]” Commonwealth v. Vera, 88 Mass. App. Ct. 313, 323 (2015), quoting Commonwealth v. Dargon, 457 Mass. 387, 403 (2010).

It appears from the record that defense counsel's strategy was to discredit Jane by demonstrating that even though DCF was involved with the family, Jane did not make any claims of sexual assault to DCF while the rapes were occurring. Without an affidavit explaining trial counsel's strategy, the factual basis supporting the ineffective assistance claim does not appear indisputably on the trial record. Therefore, the defendant has not established that the strategy was not tactical or that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that, as a result, he was “likely deprived ․ of an otherwise available, substantial ground of defence” under the well-known Saferian analysis. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Judgments affirmed.

FOOTNOTES

2.   A pseudonym.

3.   Jane testified that the defendant's “thingy” was something just boys have. She also testified that the defendant put his thingy on her “[p]ussy.”

4.   “We do not intend by our reference to the term, consistent with the statutory language, to adopt or endorse any pejorative connotation that may flow from the designation of such conduct as ‘unnatural’ (even when engaged in by consenting adults), and we [have] invite[d] the Legislature to update the statutory language.” Commonwealth v. Garcia, 95 Mass. App. Ct. 1, 6 n.8 (2019).

5.   The defendant's argument that attaching each indictment to the corresponding verdict slip did not alleviate the judge's misstatement because the judge had told the jury that the indictments were a procedural mechanism to bring the defendant to trial is unavailing. In context, this statement was an indication that an indictment did not mean the defendant was guilty.