COMMONWEALTH v. SORRONDEGUY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a bench trial, the defendant, Alfredo Sorrondeguy, was convicted of indecent assault and battery on a person over fourteen. See G. L. c. 265, § 13H. On appeal, the defendant argues that plausible evidence that the victim fabricated her story renders the Commonwealth's evidence of nonconsent insufficient. We affirm.

Discussion. We review sufficiency arguments to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). It is well settled in the Commonwealth that a sleeping person cannot consent to sexual contact. See, e.g., Commonwealth v. Roosnell, 143 Mass. 32, 40 (1886); Commonwealth v. Benedito, 95 Mass. App. Ct. 548, 550 (2019). The victim's testimony that she was asleep when the defendant groped her breast amply supports a finding that she did not consent. The defendant contends nevertheless that the evidence that the victim waited approximately five months to report the assault, and did not do so until after she discovered that the defendant had posted the nude photo she had shared with him online, so undermined her credibility that her testimony could not possibly support a finding of guilt on proof beyond a reasonable doubt. We disagree.

Contrary to the defendant's arguments, evidence of the victim's motive to fabricate, bias, and delayed disclosure of the assault is irrelevant to the sufficiency analysis. Such evidence undoubtedly raises questions of credibility. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 395 (2006) (“the defendant has quite understandably raised a credibility issue, suggesting fabrication”). See also Commonwealth v. King, 445 Mass. 217, 219 (2005) (timing of complaint is factor that may be considered in deciding complainant's credibility); Commonwealth v. Kenney, 437 Mass. 141, 154 (2002) (“evidence concerning motive to lie bears on credibility”); Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187 n.4 (2013) (proof of bias is relevant to assess accuracy and truth of witness). However, the victim explained her thinking and the judge was entitled to credit her testimony. We do not weigh credibility on appeal. See Commonwealth v. Martino, 412 Mass. 267, 274-275 (1992), quoting Commonwealth v. Harmon, 410 Mass. 425, 431 (1991) (“[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court”). Accordingly, accepting the victim's testimony as credible (as we must), there is no doubt that the Commonwealth presented sufficient evidence of nonconsent.

Judgment affirmed.