Com. v. Aguiar
| Decision Date | 01 November 2010 |
| Docket Number | No. 09-P-1234.,09-P-1234. |
| Citation | 936 N.E.2d 16,78 Mass.App.Ct. 193 |
| Parties | COMMONWEALTH v. John AGUIAR. |
| Court | Appeals Court of Massachusetts |
78 Mass.App.Ct. 193
COMMONWEALTH
v.
John AGUIAR.
No. 09-P-1234.
Appeals Court of Massachusetts,
Essex.
Argued April 14, 2010.
Decided Nov. 1, 2010.
J.W. Carney, Jr., Boston, for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
Present: BERRY, VUONO, & HANLON, JJ.
HANLON, J.
After a jury trial, the defendant, John Aguiar, was convicted of multiple sexual assaults involving two children, Lauren
Facts. We summarize facts that the jury could have found, reserving some details for later discussion. In 1993, the defendant and his wife, Susan Aguiar, lived in the town of Swampscott. Susan and her brother Eric both worked in the family business, Prime Poultry. Eric was Lauren's stepfather; he adopted Lauren and her older brother after he married their mother. In April, 1993, the defendant and his wife agreed that Eric and his pregnant wife, along with Lauren and her brother, would move into the Aguiar home, so that Eric and his family could save money to buy a house in Beverly.
The families were very close; they often spent holidays and attended family events together. At that time, the defendant and his wife had no children of their own, and they frequently took Lauren and her brother on outings and bought toys for them. Lauren was six years old and in kindergarten when her family moved into the defendant's home. She was twenty-one years old at the time of the trial, and she testified, "They were like the best aunt and uncle.... At that time, we did adore them and they adored us, too."
Shortly after Lauren's family moved in with the defendant, he began to pay more attention to her. One night, when everyone else was asleep, the defendant woke her up and led her into the kitchen. He sat on a chair at the kitchen table and pulled Lauren's pajamas down to her ankles. He whispered to her to be quiet, put his fingers "all over" her vagina, and asked if she
According to Lauren, "[t]he reason I, like, remember [this incident] so well is 'cause I think it was like tried again so much," and on this occasion "I remember, like, being so little and I, like, put my hands together like this (indicating) and I was like, please make it stop." She recalled that after that incident she would try to feign sleep when the defendant came for her during the night and that he would rub her chest to try and wake her up. Lauren's mother recalled finding the defendant asleep at the table between 3:00 and 4:00 a.m., when she got up to go to the bathroom.
Lauren specifically described a second incident that occurred in the master bedroom during the daytime when the defendant's wife was home. The defendant was on the bed with Lauren and he had a pornographic videotape playing in the video cassette recorder. The defendant had Lauren touch his penis with her hand, causing him to have an erection. Lauren testified that on other occasions in the master bedroom he would "play with his
In June, 2000, when Lauren was thirteen years old, she disclosed the abuse to her mother, Helen. She and Helen were on their way to meet the defendant, who had already picked up Lauren's brother; the defendant was going to take the two children, alone, to a karate show, and Lauren told her mother that she did not want to go. Lauren explained that the defendant had molested her when she was six years old. At the time of the abuse, Lauren had not been sure whether it was right or wrong, but as she grew older she became "very well aware that that
Jane was born in May, 1993, and she was fifteen years old when she testified at trial. Her mother, Marjorie, was Susan's best friend. In Jane's earliest memories, she was aware that the defendant and Susan were very close to her mother, and that they all frequently spent time together. Jane loved Susan and the defendant and considered them to be family. The feelings appeared to be mutual; the defendant and Susan often took Marjorie and Jane with them on family vacations to Disney World and Six Flags, among other places.
Jane testified that, when she was between seven and nine years old, the defendant sexually assaulted her.3 On one occasion, while Marjorie and Susan were out of the house and the defendant was taking care of Jane and his son, Mike,4 Jane was lying on top of the defendant in the basement, and he brought her upstairs to his room and told her to lay on top of him quickly, without any pants, before Susan and Marjorie came home. She did as she was told. Susan and Marjorie came home and Jane got up. On another occasion, in the basement, when the defendant's son was present, the defendant put his hand inside Jane's pants and began to rub her clitoris with his fingers. Jane testified that this hurt. The defendant took her pants off, spread her legs so that he could open the lips of her vagina with his fingers, and "licked up and down." Jane testified that it felt good and she felt loved. She thought what he was doing was all right because the defendant regularly told her that he loved her. During the same event, Jane laid on the floor and the defendant "kissed both [her] butt cheeks." He lifted Jane's shirt and licked all over her chest. Throughout this assault, Mike was present and watching a show on television. These types of incidents happened every time Jane's mother and Susan went out.
The last time she was assaulted, Jane was trying to sleep in the guest room when the defendant came in and pulled down her pants and tried to put his penis into her vagina. She testified that it did not go beyond "[t]he lips" of her vagina. The defendant
The circumstances under which each of the assaults were brought to light overlap to some extent. After Lauren made the first disclosure to her mother, her parents made a decision not to confront the defendant but to distance themselves from him. At the time, Eric and Susan's father was ill, and as noted, Eric and Susan both worked together in the family business. The sexual assault allegations, however, led to the break-up of the family business. 5
In 2002, at her mother's request, Lauren began to see a therapist because of her feelings of isolation and depression, related in part to the sexual abuse. At the fifth session, on May 21, 2002, Lauren disclosed the abuse to the therapist and he reported the incidents to what was then called the Department of Social Services. Three days later, a Swampscott police detective met with Lauren and her family, and several days after that, the detective attempted to speak with the defendant. Apparently, Lauren's family asked not to go forward with the case, or to put it on hold, at that time. On May 31, 2002, Susan called Marjorie, Jane's mother, crying hysterically and reporting that Lauren had accused her husband of sexually assaulting her. Jane, who was nine years old, remembers going with her mother to the defendant's home and hearing them say that Lauren had said something about the defendant.
Jane's mother testified that, once she learned of Lauren's allegations, the defendant no longer babysat for Jane when she visited with or worked for Susan. However, in all other respects, the relationship between the two families remained unchanged until January, 2004, when Jane overheard her mother tell her grandfather that she did not believe Lauren. When her grandfather left, Jane called her mother into her bedroom and told her, "[Lauren]'s not lying, he did that to me too." Jane was extremely upset and held a bucket because she thought she would vomit.
A week later, Marjorie told Susan that Jane told her the defendant
At trial, the defendant testified, and he denied all the allegations, including the inculpatory statement in the counsellor's office that Marjorie attributed to him. The defense theory was impossibility, presented primarily through the defendant's own testimony and that of his wife. Both the defendant and Susan testified that the...
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