COMMONWEALTH v. James HICKMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a Superior Court jury trial, of indecent assault and battery of a child under the age of fourteen.2 On appeal, he challenges the sufficiency of the evidence and the judge's evidentiary ruling concerning statements made by the victim at an interview where a police officer was present. In the alternative, the defendant argues that trial counsel was ineffective in failing to offer the victim's statements in evidence. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. The victim, for whom we shall use the pseudonym Eva, was five years old in June of 2016. Her mother was friendly with the defendant's live-in girlfriend. As a result, Eva spent time at the defendant's home, with the defendant often being present.
On the afternoon at issue, Eva and her mother were at the defendant's home; Eva played in an outdoor kiddie pool with the defendant's girlfriend's daughter. Eva and the daughter then went into the house to dry off. After thirty to forty-five minutes, the daughter came outside alone. Eva's mother then went then inside to check on her.
The mother saw that the bedroom doors were closed, which she had never seen before despite having been in the house on more than fifty previous occasions. The mother opened the defendant's bedroom door and saw Eva on the bed, wearing only a T-shirt and no underwear or pants; Eva's vagina was visible. The defendant was a foot away from Eva, with his belt buckle undone, quickly zipping up his pants. The defendant looked shocked and dropped to his knees beside the bed. The mother asked Eva what was going on, but Eva did not answer. The mother told Eva to get dressed. In the meantime, the defendant knelt beside the bed, holding his hand to his crotch area. When the mother looked away, he looked for something under the bed, but when she looked directly at him, he stopped moving. Once Eva was dressed, the mother left with her immediately.
The mother took Eva to the police station, and the next day, she took Eva for a medical examination at Boston Children's Hospital. Per protocol in cases of suspected sexual assault of a young child, the physician did not ask Eva what had happened. Instead the physician collected evidence, including retaining Eva's underwear (the same pair Eva had worn the preceding day) and taking swabs of Eva's genital area.
A chemist at the State police crime laboratory observed that the underwear had a stain on the crotch and tested positive for a seminal fluid enzyme. Sperm cells were found on the underwear's interior crotch area, in the area where drainage from the vagina would be expected. A cutting from that area of the underwear was submitted for deoxyribonucleic acid (DNA) analysis, as were the swabs from Eva's genital area. A sample of the defendant's DNA was also submitted for comparison. DNA testing showed that the samples taken from Eva's genital area and underwear matched the defendant's DNA.3
The Commonwealth's theory at trial was that the defendant had ejaculated onto Eva's vaginal area, after which the ejaculate came into contact with her underwear. The defendant's theory, presented through cross-examination and argument, was that the ejaculate was on the bed because the defendant and his girlfriend had recently had sexual relations there, and that the ejaculate was transferred to Eva's body when she sat on the bed.
Discussion. 1. Sufficiency. We review 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, 319 (1979). “An inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable.” Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
The defendant argues that the evidence here tended equally to support two explanations, one of them innocent, for the ejaculate on Eva's vaginal area: either he ejaculated on her, or she came into contact with ejaculate already on the bed.4 The defendant then cites to the principle that “[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.”5 Commonwealth v. Fancy, 349 Mass. 196, 200 (1965).
The evidence on this point, far from being in equipoise, could be viewed as strongly supporting the defendant's guilt. The defendant was present in a bedroom, with its door atypically closed, with his pants unbuckled and unzipped, one foot away from a half-naked five year old girl who was not a family member and whose vagina was visible. When Eva's mother opened the door, the defendant looked shocked and made suspicious movements suggesting that he was concealing something in his crotch area. From this and the forensic evidence, the jury could find beyond a reasonable doubt that the defendant ejaculated on Eva.
2. Eva's statement during interview. In an interview ten days after the incident, Eva indicated that she had never seen anyone else's private parts and that no one but a doctor or her mother had ever seen her own private parts. A police officer witnessed the interview. The judge ruled that the defendant could call the police officer to testify (1) to Eva's statements at the interview and (2) that, based on the interview, no charges were brought against the defendant at that time.6 The judge stated that he would give a limiting instruction that the evidence could be considered only to show the state of the police investigation at the time of the interview. The judge afforded trial counsel time to consider whether to call the officer for this purpose. Counsel ultimately decided not to do so.
On appeal, the defendant argues for the first time that Eva's statements were admissible for all purposes as statements made for the purpose of medical diagnosis or treatment. See Mass. G. Evid. § 803 (4) (2021). Reviewing for whether any error created a substantial risk of a miscarriage of justice, we see no error, because nothing in the record shows that the statements were made for the purpose now claimed.
Although nothing in the record explicitly describes the purpose of the interview, it is undisputed that the interview was distinct from Eva's medical examination at Boston Children's Hospital the day after the incident, at which the examining physician asked her no questions about the incident. The interview occurred ten days after the incident and was conducted at the Children's Advocacy Center. The judge watched a video recording of the interview, and his description of it, in speaking to counsel, contains nothing suggesting that its purpose was to obtain information for medical diagnosis or treatment.7
The defendant also argues that trial counsel performed deficiently by failing, despite the judge's ruling, to call the police officer to testify regarding Eva's statements at the interview. “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). A “claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record.” Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The record suggests that trial counsel deliberated about whether to try to introduce the victim's statements through the police, but ultimately decided not to do so. We cannot reasonably say on this record that it is indisputable that counsel was constitutionally ineffective.
2. The defendant was also found guilty of committing an unnatural act with a child, but at sentencing the judge dismissed the charge as duplicative.
3. The expected frequency of the occurrence of the DNA profile from the underwear was approximately one in 70.37 quadrillion unrelated individuals. The expected frequency of the occurrence of the DNA profile from the genital swabs was approximately one in 1,335 male individuals, thus excluding 99.92% of the male population.
4. The defendant rightly acknowledges that ejaculating on a person may constitute an indecent assault and battery. See Commonwealth v. Beal, 474 Mass. 341, 352 (2016) (offensive battery may be committed through de minimis touching such as spitting); Commonwealth v. Cohen, 55 Mass. App. Ct. 358, 359 (2002) (same).
5. This is “a standard for judges to apply when considering a motion for a required finding of not guilty and for appellate courts to apply when reviewing the sufficiency of the evidence.” Commonwealth v. Tavares, 484 Mass. 650, 655 (2020). It should not be included in a jury instruction. See id. at 654-655.
6. The State police chemist did not complete her analysis until after the interview, and the defendant was not indicted until December of 2018.
7. No recording or transcript of the interview is in the record before us. The trial transcript reflects that the judge, the prosecutor, and defense counsel referred to the interview as a “SANE” interview, but this is not dispositive. A medical examination of a possible sexual assault victim may be conducted at a hospital by a “sexual assault nurse examiner (SANE),” although in this case it was performed by a physician. Commonwealth v. Jones, 472 Mass. 707, 710 (2015). The possible victim may also be interviewed “at a child advocacy center by a sexual assault intervention network (SAIN) interviewer employed by [a] district attorney,” while a police officer and others involved in the investigation watch from a location not visible to the victim. See Commonwealth v. Bernardo B., 453 Mass. 158, 162 (2009). The record here suggests that the interview of Eva was a SAIN interview, not one held for the purposes of medical diagnosis or treatment.
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