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18-P-456                                                Appeals Court

                COMMONWEALTH   vs.   JEFFREY DOBBINS.


                            No. 18-P-456.

     Hampden.       September 16, 2019. - November 25, 2019.

                Present:   Kinder, Sacks, & Shin, JJ.


Indecent Assault and Battery. Rape. Assault with Intent to
     Rape. Statute, Construction. Evidence, Age, Opinion,
     Exculpatory, Relevancy and materiality. Practice,
     Criminal, New trial, Assistance of counsel. Constitutional
     Law, Assistance of counsel.


     Indictments found and returned in the Superior Court
Department on May 1, 2012.

     The cases were tried before John S. Ferrara, J., and a
motion for a new trial, filed on February 10, 2015, was heard by
him.


     Michael P. Gerace for the defendant.
     Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.


    SHIN, J.    After a jury trial in Superior Court, the

defendant was convicted of rape of a child with force, assault

of a child with intent to rape, and two charges of indecent

assault and battery on a person fourteen years of age or older
                                                                     2


(G. L. c. 265, § 13H).     We consolidated the defendant's direct

appeal with his appeal from the order denying his motion for a

new trial.   In the consolidated appeal, the defendant argues

that his convictions of indecent assault and battery should be

reversed because the evidence was insufficient to establish that

the victim was fourteen years of age or older at the time of the

assaults, that the judge abused his discretion by allowing a lay

witness to testify that the victim has a learning disability,

and that a new trial is warranted because defense counsel was

constitutionally ineffective.    We conclude that proof that the

victim "has attained age fourteen" is not required to sustain a

conviction of indecent assault and battery under G. L. c. 265,

§ 13H, so any failure of proof in that regard is not a basis to

reverse the defendant's convictions.    Discerning no merit to the

defendant's remaining arguments, we affirm.

    Background.   The jury could have found the following facts.

The victim was sixteen years old at the time of trial.    She had

been living with her grandmother, her legal guardian, since she

was young but visited her mother at her apartment approximately

once or twice per month.    The mother has five other children,

two of whom lived with her; the other three lived with their

father.   When the victim stayed overnight at the mother's

apartment, she usually slept on the sofa in the downstairs

living room or on the floor of the mother's upstairs bedroom.
                                                                    3


The defendant and the mother were dating, and he stayed

overnight at the apartment on a regular basis.

     The defendant sexually assaulted the victim multiple times

when she was "[t]hirteen, fourteen" years old.1   On several

nights when the victim was sleeping in the living room, the

defendant would approach the victim, ask her to "suck his dick,"

and then force her mouth open with his hands and insert his

penis.   The victim estimated that this happened twenty to

twenty-five times.

     The defendant also assaulted the victim in the mother's

bedroom.   After the mother fell asleep, the defendant would

reach down to where the victim lay on the floor and touch her

breasts and vaginal area over her pajamas.   The victim testified

that this happened "[a] few times."

     Discussion.   1.   Indecent assault and battery convictions.

General Laws c. 265, § 13H, provides in relevant part that

"[w]hoever commits an indecent assault and battery on a person

who has attained age fourteen shall be punished."   Citing the

statute and Instruction 6.500 of the Criminal Model Jury

Instructions for Use in the District Court (2009) (in effect at




     1 The victim turned fourteen on May 25, 2011. She believed
that the assaults began in 2010, but was uncertain and could not
give a definitive time frame.
                                                                   4


the time of trial),2 the defendant contends that the Commonwealth

was obliged to prove as an element of § 13H that the victim had

"attained age fourteen" when the assaults occurred.    We conclude

to the contrary that § 13H does not require such proof.

     "Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Commonwealth v. Brown, 479 Mass. 600, 606 (2018), quoting

Sheehan v. Weaver, 467 Mass. 734, 737 (2014).   Thus, "[w]e will

not adopt a literal construction of a statute if the

consequences of such construction are absurd or unreasonable."

Brown, supra, quoting Attorney Gen. v. School Comm. of Essex,

387 Mass. 326, 336 (1982).   Rather, we will "assume the

Legislature intended to act reasonably."   Commonwealth v. Muir,

84 Mass. App. Ct. 635, 640 (2013), quoting School Comm. of

Essex, supra.

     The Legislature enacted § 13H through St. 1980, c. 459,

entitled "An Act Providing Graduated Penalties and Victim

Compensation for the Crime of Rape and Related Offenses."    At




     2 The judge instructed the jury in accordance with § 3.5 of
the Massachusetts Superior Court Criminal Practice Jury
Instructions (2d ed. 2013) that the Commonwealth had to prove
"that the alleged victim was at least [fourteen] years of age at
the time of the alleged offense." While the Superior Court
model instruction has not changed, the current version of the
District Court model instruction does not include age as an
element of the offense. See Instruction 6.500 of the Criminal
Model Jury Instructions for Use in the District Court (2018).
                                                                   5


the same time, the Legislature amended G. L. c. 265, § 13B --

which criminalizes indecent assault and battery on a child under

the age of fourteen -- by, among other things, increasing the

penalties applicable to that offense.   Under § 13B an indecent

assault and battery on a child under the age of fourteen is

punishable by up to ten years in State prison.   In contrast,

under § 13H, an indecent assault and battery on a person

fourteen years of age or older is punishable by up to five years

in State prison.

     Considering these statutory provisions together, we think

it apparent that the language "on a person who has attained age

fourteen" in § 13H was intended to differentiate that crime from

the crime of indecent assault and battery on a child under age

fourteen.   It was not intended to create an element that the

Commonwealth must prove beyond a reasonable doubt.   Were we to

conclude otherwise, it would mean that a defendant in a case

such as this would avoid prosecution altogether solely because

of the victim's inability to recall with certainty whether she

was under or over the age of fourteen at the time of the

offense.3   We are confident that the Legislature did not intend

to create such an anomaly.




     3 Age is an element of the offense of indecent assault and
battery on a child under the age of fourteen. See Commonwealth
v. Traynor, 40 Mass. App. Ct. 527, 528 (1996).
                                                                     6


    We addressed a similar question of statutory construction

in Muir, 84 Mass. App. Ct. at 639-641.      At issue there was

subsection 1 of G. L. c. 90, § 24 (2) (a1/2), which punishes

whoever, while operating a motor vehicle on a public way, leaves

the scene of an accident "after knowingly colliding with or

otherwise causing injury to any person not resulting in the

death of any person."   We concluded that "not resulting in the

death of any person" is not an element of subsection 1, but

instead was intended to differentiate subsection 1 from

subsection 2, which makes it a felony to leave the scene of an

accident involving death with the intent of avoiding prosecution

or evading apprehension.   Muir, supra at 640.    A contrary

reading, we reasoned, would lead to the unreasonable result that

it would be a criminal offense to leave the scene of an accident

causing injury (but not death) regardless of the purpose for

leaving, but lawful to leave the scene of an accident causing

death if the purpose for leaving was not to avoid prosecution or

evade apprehension.   See id. at 640-641.    See also Commonwealth

v. Lockwood, 95 Mass. App. Ct. 189, 197 & n.7 (2019) ("no person

lawfully therein being put in fear" not element of G. L. c. 266,

§ 18, but rather "a means by which to distinguish § 18 from the

more serious crime" of G. L. c. 266, § 17, which does require

proof of person "being put in fear").
                                                                   7


     Likewise here, we decline to ascribe to the Legislature an

intent that would lead to an unreasonable result.   We thus

conclude that the Commonwealth was not required to prove that

the victim was age fourteen or older to sustain the convictions

of indecent assault and battery under § 13H.   The jury

instruction, which erroneously added to the Commonwealth's

burden of proof, does not change our conclusion.    "A jury

instruction that 'add[s] elements to the government's burden of

proof beyond those required by statute . . . may not become the

law of the case' if it is 'patently incorrect.'"    Commonwealth

v. Buttimer, 482 Mass. 754, 766 n.17 (2019), quoting United

States v. Zanghi, 189 F.3d 71, 79 (1999), cert. denied, 528 U.S.

1097 (2000).   Instead, we must look to "the elements of the

charged crime," not "the erroneously heightened command in the

jury instruction" in assessing the sufficiency of the evidence.

Buttimer, supra, quoting Musacchio v. United States, 136 S. Ct.

709, 715 (2016).4

     2.   Testimony about victim's learning disability.   The

defendant next argues that the judge abused his discretion by

allowing the grandmother to testify, over the defendant's




     4 Although we held in Commonwealth v. Pinero, 49 Mass. App.
Ct. 397, 399 (2000), that an erroneous jury instruction became
the law of the case, the issue arose there in a different
context -- namely, where the instruction created a risk of
duplicative convictions.
                                                                     8


objection, that the victim had "an individual educational plan,

focusing on her learning specifically because she has a learning

disability."    In particular, the defendant argues that the

grandmother's testimony constituted improper lay opinion and

that the fact of the victim's learning disability was

exculpatory evidence that the Commonwealth should have disclosed

before trial.    We disagree on both counts.

    The testimony was not improper lay opinion.     As established

at trial, the grandmother was involved with the victim since her

birth, was the victim's legal guardian, and was "very involved

in her education."   That the victim had an individualized

education plan because she has a learning disability was not an

opinion based on "scientific, technical, or other specialized

knowledge" necessitating an expert.    Mass. G. Evid. § 701(c)

(2019).   Rather, the judge was within his discretion to admit

the testimony as a statement of observed fact.   See Commonwealth

v. Bonds, 445 Mass. 821, 830 n.14 (2006) ("The mother, who

obviously had intimate and lengthy experience caring for [the

victim], was well situated to explain to the jury how [she] was

affected by her disease"); Parker v. Boston & Hingham Steamboat

Co., 109 Mass. 449, 451 (1872) ("The witness had the means of

observing the plaintiff from time to time, and her testimony was

as to facts within her observation and not a mere expression of

opinion reached by a process of reasoning and deduction").
                                                                   9


     Nor was the fact of the victim's learning disability

exculpatory evidence that the Commonwealth had to disclose.     The

defendant contends that, had he known of the evidence, he could

have potentially called an expert to testify that the victim's

learning disability was unrelated to her difficulties recalling

time frames, which he says would have diminished the

grandmother's and the victim's credibility.   But neither the

grandmother nor the victim gave testimony linking the victim's

learning disability to her difficulties recalling time frames.5

The defendant has thus failed to show that the evidence was

exculpatory.   See Commonwealth v. Healy, 438 Mass. 672, 679

(2003) ("To prevail on a claim that the prosecution failed to

disclose exculpatory evidence, a defendant must first prove that

the evidence was, in fact, exculpatory").

     Furthermore, the defendant suffered no prejudice from the

admission of the testimony.   The grandmother made only fleeting

mention of the victim's learning disability, and the prosecutor

made no reference to it in her closing argument.   The record

does not support the defendant's claim that the prosecutor made

use of the testimony to elicit sympathy for the victim.




     5 The defendant agrees that it was proper for the
grandmother to testify regarding the victim's difficulties with
time frames and concomitant need to record events in a calendar.
                                                                      10


    3.     Ineffective assistance of counsel.    In his motion for a

new trial, the defendant argued that trial counsel was

ineffective for failing to investigate the victim's sister as a

potential witness and for failing to call the victim's mother to

testify.   After four days of evidentiary hearings, the same

judge who presided at trial denied the defendant's motion in a

thorough written decision.   We review the judge's decision only

"to determine whether there has been a significant error of law

or other abuse of discretion" (citation omitted).      Commonwealth

v. Weichell, 446 Mass. 785, 799 (2006).    We "extend[] special

deference to the action of a motion judge who [as here] was also

the trial judge."    Commonwealth v. Rosario, 460 Mass. 181, 195

(2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307

(1986).

    The judge made the following factual findings, which are

not clearly erroneous, regarding the defendant's claim that

counsel was ineffective for not investigating the victim's

sister.    After trial ended, the sister spoke to the defendant by

telephone and told him that it was the victim's fault that he

was in prison and that the grandmother had pressured the victim

into making false allegations against him.      The sister later

signed an affidavit to the same effect after she was contacted

by the defendant's appellate counsel.     At the evidentiary

hearing, however, the sister recanted, testifying that the
                                                                  11


victim never said that she had made up the allegations.

Instead, according to the sister, the victim disclosed the

sexual assaults to her, but when the sister urged the victim to

tell the mother, the victim said she did not want to because it

could "break up their home."

    Based on these facts, the judge was within his discretion

to conclude that the defendant failed to demonstrate that trial

counsel was ineffective for failure to investigate the sister.

The sister's telephone call with the defendant, and her signing

of the affidavit, occurred after trial.   The defendant has not

shown why an ordinary fallible attorney would have had reason to

know -- any time before or during trial -- that the sister had

potentially exculpatory information.   See Commonwealth v. Denis,

442 Mass. 617, 629 (2004), quoting Strickland v. Washington, 466

U.S. 668, 691 (1984) ("While counsel certainly has 'a duty to

make reasonable investigations,' counsel is also afforded the

opportunity to 'make a reasonable decision that makes particular

investigations unnecessary'").   Furthermore, given the sister's

later recantation, the judge was warranted in concluding that

the defendant failed to show that he was deprived of a

substantial ground of defense.   See Commonwealth v. Saferian,

366 Mass. 89, 96 (1974).   The defendant speculates that the

sister would have testified consistently with her affidavit.

But as the judge found, the sister could have testified as she
                                                                   12


did at the evidentiary hearing, and had she done so, her

testimony would have been "both inculpatory and exculpatory" as

"[i]t consisted of a complaint recounting the abuse and then an

immediate recantation when [the sister] suggested disclosure to

[the mother]."

     With regard to the defendant's claim that trial counsel

should have called the victim's mother to testify, the judge was

within his discretion to conclude that counsel's decision was

not manifestly unreasonable.6    At the evidentiary hearing, the

mother testified that her other children sometimes visited at

the same time as the victim and that some would sleep in the

living room with her.     Although the defendant contends that this

evidence could have been used to impeach the victim's testimony,

the mother also testified that the victim sometimes slept alone

in the living room.     Thus, as the judge found, the mother's

"testimony would not have negated the possibility that the

assaults occurred as described by the victim."     The mother's

testimony would also have corroborated other aspects of the

victim's testimony, including that the victim sometimes slept in


     6 The judge credited trial counsel's testimony that he spoke
with the mother numerous times before trial and conducted two
lengthy interviews. The judge could thus infer that counsel
made a strategic decision not to call the mother to testify. A
strategic decision constitutes ineffective assistance only if it
was "manifestly unreasonable" when made. Commonwealth v.
Kolenovic, 478 Mass. 189, 193 (2017), quoting Commonwealth v.
Degro, 432 Mass. 319, 332 (2000).
                                                                  13


the mother's bedroom on the floor closest to the defendant's

side of the bed.   For these reasons it was not manifestly

unreasonable for counsel to choose not to call the mother to

testify, and for the same reasons, that choice did not deprive

the defendant of a substantial ground of defense.7

                                   Judgments affirmed.

                                   Order denying motion for new
                                     trial affirmed.




     7 The defendant also suggests on appeal that trial counsel
did not adequately investigate the mother, pointing to counsel's
statement in his affidavit that he "was unaware that [the
mother] would have provided facts about the sleeping
arrangements of [the victim]." The defendant posits that, as a
result, "other potential percipient witnesses" (e.g., the other
children) were not investigated. But the defendant's motion for
a new trial did not argue that counsel was ineffective for this
reason, and so any such claim is waived. See Commonwealth v.
Velez, 82 Mass. App. Ct. 12, 19 (2012). In any event, the
defendant has failed to show that these other potential
witnesses would have materially aided the defense, for instance
by significantly narrowing the number of times the victim slept
alone in the living room.
