COMMONWEALTH v. MCCLELLAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Patrick McClellan, was convicted on three indictments charging rape of a child by force in violation of G. L. c. 265, § 22A, one indictment charging rape of a child in violation of G. L. c. 265, § 23, one indictment charging kidnapping with sexual assault in violation of G. L. c. 265, § 26, three indictments charging assault and battery by means of a dangerous weapon in violation of G. L. c. 265, 15A (b), and one indictment charging enticement of a child under the age of sixteen in violation of G. L. c. 265, § 26C (b).² These convictions arise out of a series of escalating assaults on a fifteen year old high school student, culminating in the kidnapping, rape, and assaults with a rope (a noose) and a belt. The defendant appeals from those convictions and from the denial of a motion for new trial. The defendant raises six arguments on appeal: (1) the admission of evidence of uncharged sexual acts between the defendant and the victim was improper; (2) the judge wrongly excluded the denials made by the defendant to the police; (3) the prosecutor made improper statements during his closing argument; (4) there was insufficient evidence to prove aggravated kidnapping and child enticement; (5) the jury instructions for aggravated kidnapping while armed with a dangerous weapon were erroneous; and (6) the denial of his motion for new trial was error. We reverse the judgment on the indictment charging child enticement, but otherwise affirm.

Discussion. 1. Admission of uncharged acts. The evidence at trial encompassed four incidents of sexual assault. The indictments were anchored in the first and fourth interactions. The Commonwealth moved in limine to introduce testimony regarding the second and third incidents –- which took place in the defendant's car and a local motel -- in order to illustrate the escalation of the defendant's sexual violence. Those incidents also occurred in a different county than the charged conduct. The judge permitted the testimony over objection. The defendant now argues that that testimony “overwhelmed” the case. See Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006). We review the admission of bad acts evidence for an abuse of discretion. See Commonwealth v. McCowen, 458 Mass. 461, 478 (2010).

After thorough review, we conclude there was no abuse of discretion. The rule against propensity evidence is well established. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). The Commonwealth may introduce evidence of uncharged acts for other valid reasons, such as to show “common plan, pattern of conduct, intent, or motive,” so long as its probative value is not outweighed by the danger of unfair prejudice. Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998).

The defendant takes special umbrage at the admission of a motel registration card (motel card) which the Commonwealth offered in evidence to show that, approximately one year after the charged offenses, he had been at the same motel that he had taken the victim to between the first and fourth (charged) incidents. The defendant also attacks the authenticity of the motel card, in large part because the defendant's name was spelled incorrectly (“Pat Macellan”), and his birthdate and address were incorrect. No doubt the motel card had probative value if credited. The motel card showed that the defendant was familiar with and had indeed visited the motel in which the victim claimed she was assaulted. Relative to this evidence the judge contemporaneously provided a thorough and detailed limiting instruction with the motel card's introduction. The instruction explicitly informed the jury that if they did not find that the motel card was filled out by the defendant or someone on his behalf, they were not permitted to consider it for any purpose.³ Additionally, defense counsel's aggressive assault on the authenticity of the motel card during his closing argument reinforced to the jury that they were free to disregard the proffered evidence entirely.

“[P]roof of authenticity usually takes the form of testimony of a qualified witness either (1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be.” Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977), quoting W. B. Leach & P. J. Liacos, Massachusetts Evidence 265 (4th ed. 1967). The standard applied is the preponderance of the evidence. See Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). Here, there was enough evidence to authenticate the motel card under the second prong. The date of birth on the motel card is the same as the defendant's, and the motel card reflects that the guest drove a Honda CR-V and lived at 30 Carney Street in Medford. There was evidence that the defendant's wife drove a CR-V and that the defendant lived at 30 Carney Street in Medford prior to moving to Reading.

The defendant further contends that by allowing testimony concerning the second and third incidents –- fellatio in the defendant's car and sexual assault in the motel followed by a whipping with a belt -- the judge simply admitted excessive uncharged, highly prejudicial acts. Unlike Dwyer, however, where the victim testified that she was touched an “uncountable” number of times and described seven of those incidents in detail, see Dwyer, 448 Mass. at 128, the uncharged conduct here was limited to two instances that illustrated the escalating violence in the defendant's attacks on the victim. Because the events took place in another county, they were not charged in the prosecution of this case. As such, we see no abuse of discretion in the judge's determination that the evidence did not overwhelm the trial and that its probative value was not outweighed by its potential prejudicial impact. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 72-73 (2018) (“The nature of the relationship was particularly relevant here, as the only reason why there is any uncharged conduct is the fortuity that the middle acts of molestation happened in a different county from the beginning and ending acts”).

2. Exclusion of defendant's denials. Next, the defendant argues that under the doctrine of verbal completeness, exculpatory statements made by the defendant to police were wrongfully excluded.⁴ Again, we review for an abuse of discretion. See Crayton, 470 Mass. at 246. Under the verbal completeness doctrine, additional portions of a statement should be admitted if the statements are “(1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement.” Id. at 247. Here, the omitted statements were not necessary to understand the portions of the defendant's statements that were admitted. Unlike in Crayton, where the admitted statement was a denial which was necessary to counterbalance what could have been seen as an implied admission of guilt, see id. at 246-247, here the admitted statements were plainly not admissions of guilt. Admission of the denials, which in large part were not directly related to the statements admitted, would not “qualify, explain, contradict, or put into context any of the segments introduced by the Commonwealth.” Commonwealth v. Leftwich, 430 Mass. 865, 872 (2000).

3. Prosecutor's closing argument. The defendant next contends that the prosecutor (1) improperly inserted his personal opinion regarding guilt, and (2) wrongly opined on the applicability of an essential element during his closing argument.⁵ Notably, the defendant did not object at trial. Consequently, we review to determine whether there was error, and if any, for a substantial risk of a miscarriage of justice. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 235 (2013).

A prosecutor is permitted to “argu[e] forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Viewing the prosecutor's argument in context, see Commonwealth v. Carriere, 470 Mass. 1, 19 (2014), the prosecutor's expression of the defendant's guilt is properly seen as argument, a function the prosecutor was permitted to perform. See Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 313 (2011). Similarly, although the prosecutor's statement regarding an essential element -- that the rope and belt “sounds dangerous to me” -- was an artless way of making his point, even if error, it did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 511-512 (2009). The prosecutor's words were consistent with the reality that an ordinary item can become a dangerous weapon depending on the way it is used.⁶ “[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole” are not valid grounds for reversal. Commonwealth v. Wilson, 427 Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).

4. Sufficiency of the evidence. The defendant further argues that the Commonwealth did not offer sufficient evidence that the defendant committed a kidnapping with sexual assault in violation of G. L. c. 265, § 26. The defendant also argues that the Commonwealth failed to introduce evidence that the defendant intended to commit a sexual offense on an underage victim, as required to support a conviction for child enticement. See G. L. c. 265, § 26C (b). Additionally, the defendant alleges that the jury instructions were erroneous as to each of these indictments.⁷ We review the sufficiency of the evidence under the familiar Latimore standard and view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

Here, the evidence was sufficient to support the aggravated kidnapping charge, which required the Commonwealth to prove the defendant was “armed with a dangerous weapon ․ and sexually assault[ed]” the victim. G. L. c. 265, § 26. To satisfy the element that the defendant was armed with a dangerous weapon, the Commonwealth relied on the fourth incident, where the rope constituted the dangerous weapon. The Commonwealth introduced evidence that the victim was tied to a board with her hands bound and a rope around her neck. When the rope around her neck was untied, the defendant inserted his penis into her mouth. The defendant and the victim's friend then led the victim to the upstairs bedroom by the rope around her neck, where the victim then had sex with both the defendant and her friend out of fear. As a rope used in that manner reasonably qualifies as a dangerous weapon under the statute, the evidence was sufficient to show that the defendant was armed while the assault was committed.

In contrast, we agree with the defendant that the evidence regarding the child enticement charge was indeed insufficient to support the conviction. Subsection (b) of G. L. c. 265, § 26C, as amended by St. 2010, c. 267, §§ 62-64, provides that “[a]ny one who entices a child under the age of 16, or someone he believes to be a child under the age of 16, to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space with the intent that he or another person will violate [one or more several enumerated criminal statutes] shall be punished.” The statute requires proof that the defendant's “intention was to direct his sexual advances to an underage individual.” Commonwealth v. Disler, 451 Mass. 216, 228 (2008). Though the victim was fifteen years old at the time of the assaults, the Commonwealth introduced no evidence that the defendant was aware of the victim's age or was targeting underage girls. See id. at 227. It is true, as the Commonwealth asserts, that the defendant repeatedly picked up the victim from her high school, but enrollment in high school provides no proof that a student is above or below the age of sixteen. Even viewed in the light most favorable to the Commonwealth, standing alone that is insufficient evidence to fulfill the element required of enticement of a child under the age of sixteen. See G. L. c. 265, § 26C (b). As such, we must reverse the judgment as to that offense.⁸

5. Jury instruction. The Commonwealth concedes, and we agree, that the jury instruction regarding the aggravated kidnapping charge was error –- the instruction failed to inform the jury that aggravated kidnapping required the defendant to be armed with a dangerous weapon. Nonetheless, the error did not rise to the level of a substantial risk of a miscarriage of justice because the jury had necessarily determined that the rope qualified as a dangerous weapon on a different charge. See Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412 (2019).

6. Motion for new trial. Finally, the defendant appeals from the denial of his motion for new trial, and argues that he received ineffective assistance of counsel. The defendant's motion was accompanied by an affidavit from trial counsel averring that she failed to hire a handwriting expert to analyze the motel card, and could not recall why she did not object on hearsay grounds to its admission. Also included with the defendant's motion was an affidavit from a handwriting expert, who concluded that it was “more probable than not” that the motel card was not filled out by the defendant. Additionally, there was an affidavit from a licensed investigator who procured a handwriting sample from the former desk clerk at the motel, suggesting that the defendant himself did not fill out the motel card. We review for an error of law or an abuse of discretion. See Commonwealth v. DiBenedetto, 458 Mass. 657, 663-664 (2011).

We see no error here. As discussed above, the admission of the motel card did not create a “substantial” issue in the face of the Commonwealth's case against the defendant. It was but a piece of circumstantial evidence that together with other evidence supported the victim's credibility. The possibility that handwriting on the motel card matched the clerk's handwriting and not the defendant's proves little and suggests only that the clerk filled out the motel card. The authenticity of the motel card did not hinge on the defendant filling out the card himself. Additionally, the defendant's counsel retained a private investigator and presented a spirited defense. Beyond that, with some success, counsel filed targeted motions to suppress damning evidence and to exclude what he viewed as evidence outside of the charged indictments.⁹ Counsel also found and presented a witness who corroborated the defendant's main argument -- that the defendant was evasive with police because he was engaging in other illicit activity, namely, selling cocaine. In light of the entire record, the purported new evidence and affidavits submitted by the defendant do not demonstrate that counsel's conduct fell measurably below that of the ordinary, fallible lawyer, nor does it demonstrate that the defendant was prejudiced by that error. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the motion judge was also the trial judge, the judge's denial of the motion receives “special deference.” Commonwealth v. Haley, 413 Mass. 770, 773 (1992).

Conclusion. On the indictment charging enticement of a child under the age of sixteen in violation of G. L. c. 265, § 26C (b), the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. The judgments on the remaining indictments are affirmed, as is the order dated April 16, 2019, denying the defendant's motion for new trial.

So ordered.

Reversed in part; affirmed in part.

FOOTNOTES

2.   The defendant was acquitted of the charge of indecent assault and battery on a person over the age of fourteen.

3.   In full, the judge instructed: “[T]he defendant is not charged with this crime in any of these indictments; but I am permitting you to hear it so that you can hear all of the alleged conduct between this defendant and this [victim]. And you may only consider it for a limited purpose, to show the entire relationship between the [victim] and this defendant. And you may also consider it only for a limited purpose of showing, if it does, a common scheme, a pattern of operation, the absence of accident or mistake, his identity, his intent, his motive. You may not consider this evidence as a substitute for the evidence necessary to prove the indictments which have been asserted against him by the grand jury, and you may also not use this evidence to determine that [the defendant] is a bad person or has a propensity to commit crimes.”

4.   The judge allowed statements in evidence in which the defendant admitted to knowing the victim's friend, picking up the victim and taking her to the mall a few times, and that she entered his house for only thirty seconds after initially denying entirely that the victim was in his house at all. The judge also allowed a statement in which the defendant admitted that the victim's friend and another girl were in his home once for approximately one hour. The judge excluded the defendant's “self-serving” statements that: he generally denied any sexual activity with the victim or the victim's friend; his musical group banned groupies; he swore on his children's lives that the girls were only in his house once and never in the basement; he was a victim of sexual abuse and had difficulties performing sexually; and he offered to provide documentation of his sexual dysfunction.

5.   The defendant specifically challenges the prosecutor's statement that “Patrick McClellan is guilty. He is guilty for what he did himself physically. He is guilty as what is called a joint venturer ․ He is guilty of forcible rape of a child, three counts ․ Child enticement, bringing her to the house that day. He's guilty of that. He's guilty of three counts of assault and battery with a dangerous weapon.” The dangerous weapons alleged were a belt and a rope. He also challenges the statement by the prosecutor that a rope and a belt “sounds dangerous to me” in the context that the Commonwealth alleged the defendant used them against the victim.

6.   We also note that the judge instructed the jury, forcefully and in a detailed manner, that closing arguments were not to be considered as evidence. See Commonwealth v. Raymond, 424 Mass. 382, 392 (1997) (“clarifying jury instructions may mitigate any prejudice inherent in closing statements”).

7.   Because the defendant did not object at trial to the jury instructions as given, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 272 (2013).

8.   The defendant also points out that the jury instructions as to this indictment were flawed and left the jury with the impression that the crime did not require the defendant to specifically target an underaged person. We agree.

9.   For example, the judge allowed the defendant's motion in limine to admit first complaint testimony, and a motion in limine to exclude any reference to a letter allegedly written by the defendant to the defendant's wife.