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COMMONWEALTH v. Daniel CORREIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of aggravated rape of a child and two counts of contributing to the delinquency of a minor.2 The aggravated rape conviction was based on evidence that the defendant, then thirty-six, had oral sex with a fourteen year old boy (with the age difference supplying the aggravating factor). A panel of this court affirmed these convictions on the defendant's direct appeal. Commonwealth v. Correia, 89 Mass. App. Ct. 1107 (2016). The defendant subsequently filed a motion pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), seeking to have his conviction of aggravated rape of a child reduced to indecent assault and battery on a person fourteen years or older. The motion was denied by the trial judge in a well-reasoned memorandum of decision and order. We affirm.
“A judge's discretion to reduce a verdict pursuant to rule 25 (b) (2) is appropriately exercised where the weight of the evidence in the case, although technically sufficient to support the jury's verdict, points to a lesser crime.” Commonwealth v. Rolon, 438 Mass. 808, 821 (2003). However, trial judges are not to sit as a second jury, and they are cautioned to use their authority pursuant to rule 25 (b) (2) sparingly. Id. at 820-821. Our review of the denial of such a motion is solely for an abuse of discretion, and “[r]eversal for abuse of discretion is particularly rare where ․ the judge acting on the motion was also the trial judge.” Commonwealth v. Santiago, 458 Mass. 405, 414 (2010) (quotation and citation omitted).
We discern no abuse of discretion. Although the defendant repeats the arguments he made at trial that the Commonwealth's witnesses should not be credited, nothing in his brief suggests that the weight of the evidence “points to” an indecent assault and battery conviction in lieu of rape. Rolon, 438 Mass. at 821. To the extent that the defendant suggests that the motion should have been granted because the mandatory minimum sentence for aggravated rape of a child is too harsh, that is not a valid consideration for a rule 25 (b) (2) motion.
One of the defendant's principal arguments concerns the designation of one of his roommates as the Commonwealth's first complaint witness. As the judge observed, because the defendant never opposed the Commonwealth's motion in limine seeking to designate the roommate as the first complaint witness, whether she in fact was the first person to whom the victim disclosed was never addressed. Even reviewing the evidence with the benefit of hindsight, the judge concluded that the evidence was “not conclusive whether [the roommate] was the actual first complaint witness.” The judge concluded that, at a minimum, the evidence could be read as supporting that the roommate was the first person the victim told about the only rape count for which the defendant was convicted.3 Moreover, although the defendant is correct that the judge characterized the roommate's testimony as “damaging,” the defendant takes that expressed view out of context. The roommate's principal role at trial was as a percipient witness who provided eyewitness corroboration of many aspects of the victim's testimony. Even if the defendant could show error, it would be of little consequence.
Finally, we address the defendant's argument that comments that the judge made about the burdens to the Commonwealth of a new trial demonstrate that the judge was improperly viewing the defendant's motion as a rule 30 motion for new trial, and not a motion for a reduction in the verdict. A new trial is one of the forms of relief offered by rule 25 (b) (2), and a judge considering a motion filed pursuant to that rule is not bound by the defendant's election of remedies. See Commonwealth v. Gilbert, 447 Mass. 161, 166-168 (2006). To the extent that the judge's comments demonstrate that he was considering whether to allow a new trial, there was no error in his doing so.
Order denying motion to reduce verdict affirmed.
FOOTNOTES
2. Required findings of not guilty were entered as to two other aggravated rape charges, and the jury acquitted the defendant of a fourth aggravated rape charge and of posing a child in a lewd posture.
3. The defendant was convicted of aggravated rape based on an incident that took place on February 17, 2011. The other aggravated rape charges involved incidents that took place the following day, February 18, 2011. The judge observed that the record could be read as indicating that the victim may have told a different person about the February 18 incidents slightly before he told the roommate about them. The defendant, however was acquitted of the aggravated rape charges based on the February 18 incidents.
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Docket No: 19-P-549
Decided: June 10, 2020
Court: Appeals Court of Massachusetts.
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