Commonwealth v. Lawton

• Decision Date: 03 October 2012
• Docket Number: No. 10–P–2221.,10–P–2221.
• Citation: 82 Mass.App.Ct. 528,976 N.E.2d 160
• Parties: COMMONWEALTH v. Harold LAWTON.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 528

976 N.E.2d 160

COMMONWEALTH

v.Harold LAWTON.

No. 10–P–2221.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 7, 2012.

Decided Oct. 3, 2012.

Sharon Fray–Witzer, Boston, for the defendant.

Anna E. Kalluri, Assistant District Attorney (Leora Joseph, Assistant District Attorney, with her) for the Commonwealth.

Present: Mills, Meade, & Rubin, JJ.

MEADE, J.

After a jury trial, the defendant was found guilty of three counts of rape of a child under the age of sixteen in violation of G.L. c. 265, § 23, and three counts of indecent assault and battery on a child under fourteen in violation of G.L. c. 265, § 13B. On appeal, the defendant raises a variety of arguments that question the validity of his convictions. Because none merits relief, we affirm.

1. Background. The Commonwealth's evidence was as follows. The victim was born in 1999. The defendant is his biological father. The victim lived with his

mother, Vivian (a pseudonym), in a two-bedroom apartment. On occasion, the defendant would spend weekends there, and sleep in Vivian's bedroom, but he did not live there. The defendant lived with his mother, Donna (a pseudonym), in a three-bedroom apartment. The victim would often spend weekends at Donna's apartment and sleep in a room that he would sometimes share with his cousins.

When the victim was five years old, the defendant began sexually abusing him. The first assault took place in his bedroom at Donna's apartment. The defendant removed the victim's pajamas and touched the victim's penis ¹ with his hand. The defendant also “licked [the victim's] butt.” As the defendant warned him, the victim did not tell anyone about this incident, but that made him “kind of sad.”

On the evening of January 14, 2005, Vivian and the victim went to bed while the defendant was at work. When the defendant arrived at Vivian's apartment, he went into the victim's bedroom. The defendant took off the victim's pajamas and asked him “to poop on [the defendant's] hand.” The defendant placed his hand on “the fat part of [the victim's] butt.” The victim did not need to defecate, but went to the bathroom and urinated. Upon the victim's return to his room, the defendant told him to “try again.” The victim laid down on the bed on his side while the defendant was behind him touching the “bottom of [his] butt.”

At some point during the night, Vivian woke up to use the bathroom. When she came out of the bathroom, she heard a “moan” and went into the victim's bedroom. She saw the victim under the covers and the defendant lying next to him on top of the covers, and returned to her bedroom. On her way back to her room, Vivian heard a “kiddy moan” and she called the victim into her room. Both the victim and the defendant appeared at her doorway. Vivian asked what was wrong, to which the victim replied, “nothing.” The defendant claimed he was “just tickling” the victim. The defendant explained that due to his snoring, he would remain in the victim's bed for the night so he would not wake up Vivian; Vivian went back to sleep.

On the way to the victim's school the next morning, the three went to Dunkin' Donuts. Vivian went inside and the defendant stayed with the victim in the car. Once alone, the defendant asked the victim if he “remember[ed] what happened last night.” The victim said he remembered. When they arrived at the school, Vivian requested the victim's teacher, Tanya (a pseudonym),² to ask the victim about the previous night. Vivian did not disclose to Tanya what had transpired the night before.

Tanya, who testified as the first complaint witness, took the victim out of the classroom and asked him about what he had done the previous night. After telling Tanya that he had played some games the night before, Tanya told him that she loved him and that he could trust her. The victim then disclosed that his “daddy [had been] playing with [his] butt.” The victim said the defendant used his finger to play with his butt. The victim also disclosed that at the Dunkin' Donuts that morning, the defendant told him “not to tell ... mommy because [the victim] would get in trouble.” As a result of the victim's complaint, Vivian took the victim to be examined by a doctor and for a Sexual Abuse Intervention Network (SAIN) interview. The defendant moved out of Vivian's home.

In 2005, the Commonwealth initiated a prosecution of the defendant for his sexual abuse of the victim. That case was dismissed for lack of prosecution. Vivian explained that because the victim was so young, she did not want to see him go through the pain of testifying against his father. After the case was dismissed, Vivian and the defendant became friendly again, and the defendant was permitted to spend time with the victim at Donna's house every other weekend.

The reconciliation spawned additional abuse. The defendant continued “licking [the victim's] butt,” and making more requests for the victim to defecate in the defendant's hands. When the victim was six years old, and staying at Donna's house, the defendant “licked” the “fat part” of the victim's “butt,” and “inside [the victim's] butt.” The victim felt “something wet” going into his “butt hole.” The “licking” occurred “a few times” when the victim was five, six, and seven years old.

On one occasion when the victim was seven years old, and staying at Donna's house, the defendant pulled down the victim's pants and told him to “poop on the ground,” where the defendant had placed a plastic bag. The victim told the defendant he had to use the bathroom, and the defendant followed him and stared at him, which occurred on a few occasions. The victim asked for some privacy and the defendant left. When the victim returned, the defendant again pulled down the victim's pajamas and told him to “poop on the plastic bag.” The defendant was on his knees, holding up the victim's legs.³

On this same occasion, Donna woke up and decided to check on the victim. The defendant attempted to get Donna to return to her room, but when she went into the defendant's bedroom, she saw the victim pulling up his pajama pants. When she asked why he was doing that, the victim told her that “daddy told me to poop on a plastic bag.” Donna appeared to be shocked, and told the victim to go back to his room and not to tell anyone what had occurred.

Sometime after this incident, while Vivian walked the victim to the bus stop, he disclosed that the defendant “licked [his] butt.” Vivian told the victim to tell her about it when he got back from school. Later that evening, the victim told Vivian “everything.” In response to a scene in a movie Vivian and the victim were watching on television, the victim told her that “my father touches me on my private spots.” The victim told her that “[h]e rubbed my penis. And when [I go] to the bathroom, he stands in the door and he watches me.” As a result of this disclosure, Vivian brought the victim in for another SAIN interview in 2008.

Additional facts will be discussed in conjunction with the issues raised by the defendant.

2. Discussion. a. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to support his three rape convictions.⁴ We disagree.

When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152, 718 N.E.2d 398 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Commonwealth v. Arias, 78 Mass.App.Ct. 429, 433–434, 939 N.E.2d 1169 (2010). Rather, the relevant “question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, supra.

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Commonwealth v. Latimore, supra at 677–678, 393 N.E.2d 370. To prove the crime of rape of a child in violation of G.L. c. 265, § 23, the Commonwealth must prove beyond a reasonable doubt that the defendant engaged in (1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age. Commonwealth v. Miller, 385 Mass. 521, 522, 432 N.E.2d 463 (1982). Unnatural sexual intercourse includes “anal intercourse ... and other intrusions of a part of a person's body or other object into the ... anal opening of another person's body.” Commonwealth v. Gallant, 373 Mass. 577, 584, 369 N.E.2d 707 (1977).

The Commonwealth's evidence was more than sufficient to establish that the defendant, on at least three occasions, put his tongue inside the victim's anus. The victim testified that he felt “something wet” going inside his “butt hole,” and that this “licking” occurred “a few times” when he was five, six, and seven years old. This evidence permitted a rational fact finder to conclude that the defendant raped the victim three times. See Commonwealth v. Nylander, 26 Mass.App.Ct. 784, 785–787, 532 N.E.2d 1223 (1989).

b. Duplicative convictions. The defendant claims that his indecent assault and battery convictions may have been duplicative of his rape convictions. Because the defendant has raised this issue for the first time on appeal, we review only to determine whether a substantial risk of a miscarriage of justice was created. See Commonwealth v. Vick, 454 Mass. 418, 430 n. 13, 910 N.E.2d 339 (2009). No such risk exists here where the jury were properly instructed that each conviction must be based on a separate and distinct act. See Commonwealth v. King, 445 Mass. 217, 225, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006). In...