COMMONWEALTH v. FELIZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant, Michael Feliz, was convicted of two counts of aggravated statutory rape of a child, one count of trafficking of a person under eighteen for sexual servitude, one count of deriving support from the earnings of a minor prostitute, one count of enticement of a child under sixteen, two counts of distribution of a class B substance to a minor, two counts of distribution of a class E substance, and two counts of contributing to the delinquency of a minor. Following a subsequent jury-waived trial, the defendant was convicted of being a habitual offender. See G. L. c. 279, § 25 (a). On appeal, the defendant claims that the judge erred in admitting prejudicial bad acts evidence, there was no evidence of penetration to prove one of the aggravated statutory rape charges, and the prosecutor improperly vouched for a witness in closing argument. We affirm.

Background. The key facts are not in dispute for purposes of the arguments raised on appeal. The thirteen year old victim had a troubled background. In November of 2014, the victim and her friend met the defendant in a parking lot in Lowell. The victim lied about her age, and told the defendant that she was fourteen years old. The defendant responded that “[he] can deal with that.” The defendant invited the girls to his aunt's apartment. There, his aunt provided alcohol to the girls, and the defendant gave them drugs including yellow pills and “crack” cocaine. The victim stayed at the apartment all night. That night, the defendant attempted to have sexual intercourse with her. He pushed his penis against her “clit” and the “outside of [her] vagina.” He then told the victim to “suck it,” and put his penis in her mouth.

Following that evening, the victim continued to see the defendant. On one occasion, the defendant picked up the victim in his car, and told her to lie about her age if they were stopped. While driving in the car, on the way to buy drugs, the defendant showed the victim a gun and said, “Are you ready to see somebody get shot?” The victim said that she thought that the defendant was “like, joking.”

The defendant gave the victim “crack” cocaine, suboxone, and powdered cocaine on various occasions. He referred to her as his “bitch,” and told her that if she had sex with other people they could get more money to buy more drugs. The victim wanted more drugs, and agreed to have sex with the defendant's friends. Among those she had sex with were the defendant's cousins, “Little Mikey” and Angel. Little Mikey testified at trial pursuant to a cooperation agreement with the Commonwealth. Both Little Mikey and the victim described various instances in which the defendant introduced the victim to certain people, and had her engage in sexual activities with them in exchange for drugs or money. The details of those activities were described and corroborated at trial. The Commonwealth also introduced physical evidence, medical records, photographs, and other corroborative evidence and testimony at trial. The defense contended that the victim was confused by her drug use, and that Little Mikey was the true culprit who had a motive to lie.

Discussion. 1. Bad acts evidence. The defendant contends that evidence of the gun was irrelevant and unduly prejudicial. As the defendant objected to the admission of the evidence at trial, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). There was no error.

The indictment charging trafficking of a person under eighteen for sexual servitude required proof that the defendant “subject[ed], ․ recruit[ed], entic[ed] ․ or caus[ed]” the victim to engage in commercial sexual activity or attempted to do so. G. L. c. 265, § 50 (a). The judge instructed the jury accordingly. Similarly, the indictment charging enticement of a child under sixteen required proof that the defendant enticed the victim to enter, exit, or remain in a vehicle, dwelling, or building, and that he intended to commit or intended that another would commit the offense of statutory rape of a child. See G. L. c. 265, §§ 23, 26C (b). Here again, the judge instructed the jury in accordance with the language of the statute.² In light of these statutory requirements, the evidence of the gun was relevant to the victim's state of mind. The gun incident showed that the victim knew of the defendant's access to a deadly weapon, and spoke to the relevant issues of enticement, causation, and control. Furthermore, we cannot say that the relevant evidence that the defendant possessed a gun was so unduly prejudicial that the judge abused his discretion in admitting it. As discussed, the crimes required proof that the defendant controlled or influenced the victim's behavior, and the gun was material to that determination. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Even assuming, arguendo, that the judge erred in admitting the gun evidence, the alleged error did not influence the jury or had only slight effect. See Flebotte, 417 Mass. at 353. The evidence of guilt was very strong and corroborated in myriad ways, and the prosecutor did not highlight this evidence in closing argument. See Commonwealth v. Veiovis, 477 Mass. 472, 487 (2017). Further, the defendant did not seek a limiting instruction, and the judge was not obligated to provide one, sua sponte. See Commonwealth v. Booker, 386 Mass. 466, 471-472 (1982).

2. Evidence of penetration. The defendant contends that the judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to prove penetration. We review the defendant's claim 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).

Here, the victim testified that the defendant pushed his penis against the victim's clitoris, and touched the outside of her vagina. This evidence more than sufficed to prove penetration under our precedent. See Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001) (“Sexual intercourse is defined as penetration of the victim, regardless of degree”). See also Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 914 (1997); Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 788 (1989); Commonwealth v. Thomas, 19 Mass. App. Ct. 1, 5 (1984); Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 17-18 (1980).

3. Closing argument. The defendant also contends that the prosecutor should not have stated in closing argument that the cooperating witness's testimony “has the ring of truth” to it. He contends that this statement, combined with the prosecutor urging the jury to believe the cooperating witness based on his age, education, and work ethic, requires reversal. The defendant did not object to this portion of the Commonwealth's closing argument, and we thus review to determine whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Viewed in context of the entire closing argument, the evidence at trial, and the judge's instructions to the jury, the brief, now-challenged reference was not “sufficiently significant in the context of the trial to make plausible an inference that the [verdict] might have been otherwise but for the error.” Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). The prosecutor marshaled the evidence and explained, in response to defense counsel's claim in closing argument that Little Mikey should not be believed, why Little Mikey's testimony was corroborated and credible. We discern no error.

Judgments affirmed.

FOOTNOTES

2.   The defendant does not challenge the judge's jury instructions.