NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-145                                               Appeals Court

                  COMMONWEALTH   vs.   JUSTIN HAMEL.


                            No. 16-P-145.

           Bristol.      March 13, 2017. - April 13, 2017.

            Present:   Green, Wolohojian, & Sullivan, JJ.


Indecent Assault and Battery. Minor. Evidence, Medical record,
     Credibility of witness. Witness, Child, Credibility.
     Practice, Criminal, Argument by prosecutor. Child Abuse.



     Complaints received and sworn to in the jury session of the
Fall River Division of the District Court Department on November
21, 2011, and May 31, 2012.

     After consolidation, the cases were tried before Gilbert J.
Nadeau, Jr., J.


     Laura Mannion Banwarth for the defendant.
     Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.


    GREEN, J.    On appeal from his convictions on two counts of

indecent assault and battery on a child under the age of

fourteen, the defendant assigns error to the admission, over

objection, of medical records describing diagnosis and treatment
                                                                    2


of the child for dermatitis on his penis, without expert

testimony establishing a causal connection between the alleged

assault and the described skin condition.      The defendant also

observes that the trial prosecutor's closing improperly

suggested that the jury should consider the child to be

credible, by reason of his willingness to testify in court to

the alleged assault.      See Commonwealth v. Beaudry, 445 Mass.

577, 586 (2005); Commonwealth v. Ramos, 73 Mass. App. Ct. 824,

825-826 (2009).      We agree that a new trial is warranted, and

reverse the judgments.

       Background.    In September, 2011, the child (then twelve

years old) moved into a new house with his family.      The

defendant (then thirty-one years old) often stayed in the family

home, and the child and defendant spent a lot of time together.

The child and the defendant went to the beach, played video

games, and watched television together.      The child testified

that he had a good relationship with the defendant, and liked

him.

       One day, while the child and the defendant were sitting or

lying on his bed watching television, the defendant grabbed the

child's penis with his hand and moved his hand up and down until

"wet stuff came out."      The child testified that something

similar happened with the defendant on ten to twenty other

occasions during the time the defendant stayed with his family.
                                                                     3


The child also testified that the defendant kissed him on the

lips between five and ten times.    On one of those occasions, the

child's step-mother saw the defendant kiss the child;

thereafter, the child's step-mother and mother took him to speak

to a woman at a child advocacy center, where the child reported

the kiss but did not mention that the defendant had touched the

child's penis.1    At some later point, the child returned to the

child advocacy center and reported to the same woman that the

defendant had been touching his penis.    When the woman asked the

child why he had not reported that touching before, the child

explained that he liked the defendant and didn't want to get him

in trouble.

     One day in September of 2011, after the defendant had been

staying with the child's family for more than two weeks, the

child began to experience pain in his penis.    The child's mother

took him to the doctor, where an examination revealed that the

skin of his penis was red and irritated.    The doctor prescribed

a cream, which resolved the condition.     The child had never

experienced a similar condition on his penis before September of

2011.

     Discussion.    Medical records.   On the first day of trial,

the prosecutor informed the judge that the Commonwealth intended

     1
       In response to a direct question from his step-mother, the
child denied that the defendant had ever touched his penis.
                                                                     4


to introduce medical records showing that the child sought

treatment on September 26, 2011, for "irritation in the penis

area,"   explaining that the records were relevant because the

acts of abuse were alleged to have occurred during the month

preceding the child's treatment for dermatitis.    The defendant

objected to admission of the records, on the ground that there

was nothing in the records suggesting a causal link between the

alleged abuse and the dermatitis diagnosis.2   The judge advised

that he would reserve his ruling on the admissibility of the

records until after he heard the child's testimony.    On the

second day of trial, the defendant returned to the topic of the

medical records, advising the judge that he noticed that the

diagnosis expressed in the records was for "irritant

dermatitis," a condition that (according to trial counsel's

review of the Internet encyclopedia Wikipedia) is caused by

chemical irritants rather than touching of the type the child

alleged the defendant to have done.   Following the child's

testimony, the Commonwealth moved to admit the medical records

and, over the defendant's objection, the judge admitted the



     2
       The defendant further observed   that privileged records
from the child advocacy center social   worker (which were not
admissible) included notes recounting   the child's mother's
report that, according to the medical   staff who treated the
child, the skin irritation evident on   the child's penis was "due
to not washing soap entirely off."
                                                                     5


records in evidence.3   Because the defendant objected, we "review

any error in the admission of the medical records under the

prejudicial error standard."   Commonwealth v. Cole, 473 Mass.

317, 321 (2015).

     "Expert testimony is necessary where proof of medical

causation lies outside the ken of lay jurors."   Pitts v. Wingate

at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012).    "However,

where a determination of causation lies within 'general human

knowledge and experience,' expert testimony is not required."

Ibid., quoting from Bailey v. Cataldo Ambulance Serv., Inc., 64

Mass. App. Ct. 228, 236 n.6 (2005).   The question, then, is

whether the causes of dermatitis generally, or "irritant

dermatitis" more particularly, is sufficiently within the

general knowledge and experience of lay jurors to permit them to

draw a causal connection between the alleged abuse by the

defendant and the condition experienced by the child without

engaging in "speculation or conjecture."   Commonwealth v. Scott,

464 Mass. 355, 362 (2013).   We conclude they are not.

     The alleged abuse involved the vigorous rubbing of the

child's penis with the defendant's hand.   While it is certainly

possible that such contact could produce some irritation of the

     3
       In response to trial counsel's observation that "irritant
dermatitis" is caused by chemical irritants, the judge suggested
that the defendant would be free to introduce evidence of other
possible causes for the child's skin condition.
                                                                    6


skin surface of more than temporary duration, it seems far from

general knowledge and experience that it would, or that it would

produce a condition called "dermatitis" requiring treatment.

More to the point, without evidence of other potential causes of

such a condition, or the likelihood that the condition in the

particular form experienced by the child would result from

rubbing, a conclusion that the child's dermatitis was caused by

the alleged touching in the present case rests on little more

than speculation or conjecture.   See Commonwealth v.

Kirkpatrick, 423 Mass. 436, 447-448, cert. denied, 519 U.S. 1015

(1996), overruled on other grounds, Commonwealth v. King, 445

Mass. 217 (2005).

    "In the Kirkpatrick case, a defendant charged with sexual

abuse of a child sought to introduce medical records showing

that, during the relevant period, he was treated for two

sexually transmitted infections, while the victim tested

negative for the same infections.   [Kirkpatrick, supra at 448.]

[The Supreme Judicial Court] determined that the records were

excluded properly because no medical testimony was introduced

and, in the absence of such expert testimony, the records would

have required speculation both as to the likelihood that the

infections would have been transmitted and as to the reliability

of the tests on a child.   Id. at 447-448.   Cf. Buck's Case, 342

Mass. 766, 769 (1961) (where causal connection between
                                                                    7


inhalation of formaldehyde and death was beyond 'common

knowledge and experience of the ordinary layman,' medical

testimony was required)."    Commonwealth v. Scott, supra at 362-

363.   On the topic of causation, compare cases such as Pitts v.

Wingate at Brighton, Inc., supra at 289-290 (plaintiff suffered

broken bones after fall to floor), and Bennett v. Winthrop

Community Hosp., 21 Mass App. Ct. 979, 980-982 (1986) (with

regard to the lost tooth and cut chin plaintiff sustained in

fall from gurney, the court observed that "[t]he fact of injury

consequent upon a fall is incontestable"), with Weinberg v.

Massachusetts Bay Transp. Authy., 348 Mass. 669, 671

(1965)("Whether a fracture of the ankle could give rise to such

consequences . . . as varicose veins and shortness of breath

cannot be said to be a matter of common knowledge").

       The admission of the child's medical records, without

evidence supporting a causal link between the diagnosed

condition and the defendant's alleged abuse, was error.     "An

error is nonprejudicial only '[i]f . . . the conviction is sure

that the error did not influence the jury, or had but very

slight effect. . . .    But if one cannot say, with fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error, it is impossible to conclude

that substantial rights were not affected.'    Commonwealth v.
                                                                     8


Peruzzi, 15 Mass. App. Ct. 437, 445 (1983), quoting Kotteakos v.

United States, 328 U.S. 750, 764-765 (1946)."    Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994).    We can have no such

assurance in the present case.    As is typical in such matters,

the present case relied principally on the credibility of the

child.   The suggestion that the physical condition experienced

by the child was the result of the abuse he described could

serve as powerful forensic corroboration of the child's

testimony.    Indeed, the prosecutor pressed that point forcefully

during his closing argument.    We agree with the defendant that

the erroneously admitted medical records caused him prejudice.

     Improper closing.    Our conclusion that the defendant is

entitled to a new trial is buttressed by the defendant's second

claim of error, that the prosecutor engaged in improper closing

argument.    As the Commonwealth concedes, it was improper for the

prosecutor to suggest in his closing that the child was credible

by virtue of his willingness to come into court and testify.4

See Commonwealth v. Beaudry, 445 Mass. at 586; Commonwealth v.


     4
       The defense theory was that the child fabricated the
allegations of abuse to avoid punishment after his step-mother
caught him smoking a cigarette. In response, the Commonwealth
argued: "Why would he put himself through what he did
yesterday, for smoking a cigarette?" and "I think the most
important thing that I want to leave you with is about the
motivation of a young, 12-year-old boy and what his motivation
is or would have been to make this up, to drag this on for two
years, to come here and testify before you. It's a difficult
thing for anybody, but most certainly a 14-year-old."
                                                                    9


Ramos, 73 Mass. App. Ct. at 825-826; Mass. G. Evid.

§ 1113(b)(3)(A) (2017).   As we have observed, the Commonwealth's

case rested principally on the credibility of the child, except

to the extent that the child's allegations of abuse were

corroborated by the suggestion that his dermatitis served as

tangible proof of the alleged abuse.   Though the defendant did

not object at trial to the prosecutor's closing, when the

improper argument is weighed together with the prejudicial

effect of the erroneously admitted medical records we are left

with no doubt that the judgments cannot stand.

    Conclusion.   The judgments are reversed, and the verdicts

set aside.   The matter is remanded to the District Court for

further proceedings consistent with this opinion.

                                    So ordered.
