Commonwealth v. Childs

• Decision Date: 20 September 2018
• Docket Number: No. 16-P-1414,16-P-1414
• Parties: COMMONWEALTH v. Richard CHILDS.
• Court: Appeals Court of Massachusetts

110 N.E.3d 477

COMMONWEALTH
v.
Richard CHILDS.

No. 16-P-1414

Appeals Court of Massachusetts, Middlesex..

Argued December 8, 2017
Decided September 20, 2018

James F. Petersen for the defendant.

Kate Cimini, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Ditkoff, & Singh, JJ.

DITKOFF, J.

The defendant, Richard Childs, appeals from his Superior Court convictions on three indictments charging indecent assault and battery, see G. L. c. 265, § 13H, and one indictment charging indecent assault and battery on a child, see G. L. c. 265, § 13B, arising out of his seven-year abusive relationship with a friend's daughter. The charged acts, which occurred in Middlesex County, happened at the beginning and the end of that time period. We conclude that the judge properly allowed the Commonwealth to present evidence that the abuse continued during the period in which the family lived outside Middlesex County to show the nature of the relationship and the absence of mistake or accident. As we also conclude that the prosecutor properly used the uncharged conduct for these purposes during closing argument, we affirm.

1. Background. a. The Commonwealth's case. The victim lived with her parents and her sister, who is two years younger than the victim. The victim's father had a serious problem with alcohol use, and the victim's mother had a severe mental illness that resulted in her spending most of her time in her room. The defendant was a close family friend and had been a part of the victim's life since her infancy.

Prior to the victim's turning seven years old, the victim and her family lived in Hudson in Middlesex County. When the victim was five or six years old, she was in the attic with the defendant, who was teaching her how to read. The defendant began rubbing his penis with his own hand "on the outside of his pants." The defendant then grabbed the victim's hand and rubbed it against his penis, also on the outside of his pants. He continued to read words to her as he did this.

Shortly before the victim's seventh birthday, she and her family moved to Springfield in Hampden County. In Springfield, the defendant would come to the victim's house "mostly every Sunday" during football season to drink alcohol and to watch football games with the victim's father. Whenever the victim's father would leave the room, the defendant would continue his sexual advances towards the victim. He would rub his penis over his pants, lick his lips, and direct gestures indicating intercourse with his fingers toward the victim. The victim "really didn't have any reaction to it."

110 N.E.3d 480

The victim recounted two specific incidents to the jury from her time outside Middlesex County. When she was seven or eight years old, the defendant brought the victim and her sister "glow in the dark" stickers for their shared bedroom. After the girls affixed the stickers, the defendant expressed his desire to "see ... how the room looked." This, of course, required turning off the lights. Once the lights were out, the defendant took his penis out of his pants and rubbed it against the victim's face. The victim ran and hid behind a dresser.

When the victim was eight or nine years old, the victim's father asked the victim to accompany the defendant on a drive to Ludlow (also outside Middlesex County) to fill the defendant's gasoline tank. While driving, the defendant rubbed his hands over the victim's abdomen and on her lap, over her vagina. She told him to stop, and then he rubbed her cheek.

The victim recounted two other specific acts of molestation that the judge excluded and were not heard by the jury.¹ One occurred when the victim was ten or eleven years old. The victim and her sister were in a pool and the defendant exposed his penis to them. The other involved the defendant's putting his penis in the victim's mouth and then licking her vagina. The time frame and location for this latter incident was vague; the Commonwealth stated that it occurred when the victim was six years old (before she moved to Springfield), but also stated that it occurred in 2006, when the victim would have been eight or nine years old and living in Springfield.²

In 2011, shortly after the victim turned fourteen years old, her family lost electricity to their house in Springfield and decided to return to an empty apartment in Hudson that her family still owned. The first evening, the victim returned from a visit to her grandmother's apartment to find her father passed out on a couch, with the defendant sitting next to him watching television. After the victim and the defendant talked for a while, she asked the defendant if she and her sister could go to his apartment (which was nearby) and use his computer. He agreed.

After approximately one hour, the defendant returned to his apartment while the victim and her sister were still there. The defendant put his hand down the back of the victim's shirt and began rubbing her back. The defendant then moved his hand to the front and touched her breasts underneath her bra. The victim was "just sitting there." The defendant touched the victim's "stomach" under her clothes. Again, the victim was "just sitting there." The defendant placed a hand over her pants, over her vagina area, and rubbed back and forth. Again, the victim was "just sitting there." After "a minute," the defendant stopped.

The victim's sister then went into the hallway to make a telephone call. The defendant took the victim's finger and sucked on it for approximately thirty seconds, going "back and forth against [her] finger." The victim was "still sitting there ... in shock" and "just let it happen." When the victim's sister returned and saw this, the defendant stopped. After the victim's sister reentered the room, the defendant rubbed

110 N.E.3d 481

his waist against the victim's shoulder. The victim could feel his erection through his pants. Again, the victim was "still sitting there."

On another evening in the next few days, the defendant repeatedly put his hand on the victim's buttocks, over her clothing. He said, "Excuse me," but the victim was convinced that it was intentional.

A Hudson police detective interviewed the defendant shortly after the incidents. According to the detective, the defendant stated that, after tending to the victim's father, he had returned to his apartment. He wanted to see what the girls were doing on his computer, so he placed his hands on the chair or possibly on the girls' shoulders and leaned forward to see. He said that "it could have been a possibility" that he had "brushed up against them and maybe touched their breast or something as an accident."

b. The defendant's case. The defense was that "this girl made up these allegations against the defendant because of the lack of attention she was getting from her own family." The defendant testified that the victim and her sister were lonely and had little interaction with their parents. He took the girls out to eat and bought them clothing. Once the family moved to Springfield, he visited them every weekend in the summer.

He acknowledged allowing the girls to access his apartment and to use his computer when they were living in Hudson in 2011. When he returned to his apartment, he "put [his] arms around them, ... gave them a kiss on the head, [and] asked them how they were doing and how was their summer." He occasionally got up to see what they were doing on the computer. He had to put his hands on their shoulders to balance himself when he did this. This happened again the next evening. He denied touching the victim inappropriately in any way. He also denied the charged conduct in the attic when the victim was five or six years old.

Regarding the uncharged driving incident when the victim was eight or nine years old, he remembered having to throw his arm across the victim when braking because she was not wearing a seat belt. He also remembered the uncharged glow in the dark stickers incident. He testified that the door to the bedroom was never closed and that he did not act inappropriately. He also denied the victim's account of weekly sexual gestures and harassment.

The defendant called three social workers as witnesses. One testified that, when the victim was eight years old, she recanted an accusation against the defendant when interviewed by the social worker. When the victim was ten years old, she told another social worker that "she hadn't been sexually abuse[d]." When the victim was thirteen years old, she denied to a third social worker that she had ever been touched sexually without her consent. The defendant also elicited from a responding officer a description of the victim's 2011 report to the police, which was less detailed than her trial testimony.

2. Discussion. a. Evidence of uncharged conduct. "Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014). Nonetheless, "[s]uch evidence may be admitted ‘to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.’ " Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780, 68 N.E.3d 644 (2016), quoting

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