Commonwealth v. Oppenheim
| Decision Date | 24 September 2014 |
| Docket Number | No. 12–P–1673.,12–P–1673. |
| Citation | 16 N.E.3d 502,86 Mass.App.Ct. 359 |
| Parties | COMMONWEALTH v. David OPPENHEIM. |
| Court | Appeals Court of Massachusetts |
David J. Nathanson, Boston (Dan A. Horowitz with him) for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
Present: COHEN, SIKORA, & AGNES, JJ.
SIKORA
, J.
A Superior Court jury convicted the defendant, David Oppenheim, of five counts of rape of a child. See G.L. c. 265, § 23
. He appeals upon multiple grounds, but argues principally that the trial judge should have instructed the jury that, before they could consider a confession contained in an instant message (IM) conversation,2 the Commonwealth needed to prove beyond a reasonable doubt that the defendant authored the confession. For the following reasons, we affirm.
Background. 1. Commonwealth's evidence. From the Commonwealth's main witnesses, the jury heard the following evidence. We reserve certain details for discussion of the appellate issues. In 2002, the defendant and his wife founded a community theater enterprise entitled the Pioneer Arts Center of Easthampton (PACE or the center). As the center's chief executive, the defendant directed musical theater and taught acting classes.
The victim, Ann Ross,3 testified at length. She first attended PACE activities in the fall of 2004 at the age of thirteen. She remained actively involved at the center over the next four years. She first performed volunteer and intern chores, then took acting lessons, and ultimately assumed significant roles in musical productions.
In the fall of 2005, when she was fourteen years old, Ross accepted the defendant's offer of private acting lessons. The classes usually took place in the defendant's office or the theater. The defendant told Ross that, to improve her acting skill, she needed to experience physical sensations beyond the knowledge of her age group. He rubbed her arms and kissed her lips, face, and neck. He told her that she was “really talented,” that she was “going to go far[,] and that he was going to make sure that that happened.”
He instructed her not to tell anybody about their
lessons because “society doesn't understand what I'm doing here.”
Ross testified that the sexual activity intensified over the next two years. The defendant touched Ross “everywhere,” including her vagina; performed oral sex on her; engaged her in anal and vaginal sex; and directed her to perform oral sex on him. Ross had no prior experience in these activities. They occurred usually at the defendant's office or home, or at the theater.
The Commonwealth's second principal witness was Ryan DiMartino.4 DiMartino had attended PACE's musical theater training during the summers of 2005, 2006, and 2007, at fourteen, fifteen, and sixteen years of age. During those years DiMartino was known as Emily and lived as a female. In the course of the summers, DiMartino met, and developed an undisclosed romantic attraction toward, Ross. During those periods DiMartino observed Ross and the defendant often alone in close working proximity.
During the school year of 2007–2008, at age sixteen, DiMartino performed volunteer work at PACE. On Wednesday afternoons and evenings DiMartino cleaned and prepared the theater for evening open microphone activities. The defendant would admit DiMartino to the locked theater. They began online chats in October. As of the end of 2007 and the beginning of 2008, the conversations between them became personal and then, according to DiMartino, “more flirtatious and sexual.”
During a Wednesday afternoon in early February of 2008, at the locked theater, the defendant kissed and caressed DiMartino. That conduct became a pattern during private Wednesday afternoon chores at the theater. The defendant proposed also that they engage in sexual relations.
On February 13, the defendant suggested to DiMartino that he (the defendant) open a new online account with a new online name to mask his identity against any suspicion of DiMartino's parents or others about their IM traffic. The defendant and DiMartino changed the defendant's IM identity to the name “Allie.”
On or about March 9, the defendant and DiMartino discussed, in person, DiMartino's attraction to Ross. The defendant urged
DiMartino to pursue it. DiMartino asked the defendant whether any sexual activity “was happening between [Ross and him].” The defendant responded that they could “talk about it another time” because he “wasn't sure if he trusted [DiMartino] enough to tell [him] everything.”
Late the following evening of March 10, the defendant opened an IM conversation with DiMartino about his (the defendant's) relationship with Ross. In the course of the extended IM conversation, the defendant related in physical detail a first seduction of Ross at about age fourteen in the sound booth of the PACE theater and the accomplishment of both vaginal and anal penetration of her on that occasion. The IM related that the defendant had maintained a pattern of sexual intercourse with Ross through the time of her relationship with one boyfriend and into the beginning of her relationship with a successor (college) boyfriend.
Subsequently, on a Wednesday afternoon at the PACE theater, the defendant told DiMartino again that he (the defendant) on multiple occasions had engaged in vaginal and anal sex with Ross in the office and in the light booth of the PACE theater complex.
Carissa Dagenais was the Commonwealth's third principal witness. From 2004 to late 2006, at ages fifteen to seventeen, she too performed volunteer work at PACE, and took an acting class from the defendant. She was familiar with Ross as another member of the acting class.
During her first year of college (2007–2008), Dagenais frequently stayed at the defendant's house because she was “having a hard time at home.” In the summer of 2008, she asked the defendant why she no longer saw Ross at PACE. He answered that Ross and he had once had a “full-on sexual relationship,” that she “had started seeing someone else,” and that they had not enjoyed their collaboration in their last musical production.
In June of 2010, after publication of the charges against the defendant, he asked Dagenais to appear as a character witness on his behalf. She at first agreed. In July of 2010, she decided to report her information about the defendant's relationship with Ross to the police. In a telephone conversation with the defendant, she informed him of that intention. He acknowledged the wrongfulness of his actions, but described the law and his potential punishment as unfair. He told her that her testimony would ruin his and his family's lives.
The Commonwealth offered the testimony of two other former
PACE students as pattern-of-conduct evidence. Laura Berkeley5 began an internship in the fall of 2003 at age seventeen. The defendant offered her private acting lessons and proposed the technique of accelerated “primitive” experiences for professional development. The tutorial resulted in sexual activity (fellatio, cunnilingus, and digital and vaginal intercourse) in the PACE office area, the green room, and the sound booth, and at the defendant's home. Her internship concluded in the spring of 2004.
Marit Bjerkadal participated at PACE during the period of 2003 into early 2005 at ages sixteen, seventeen, and eighteen. She performed volunteer chores to defray the cost of acting lessons for her younger sister and herself. She testified that, in the winter of 2005, the defendant approached her privately, massaged her shoulders, and proposed payment by sexual favors. She became frightened and left PACE shortly afterward.
2. Defendant's evidence. Through the testimony of the defendant's wife and multiple PACE attendees, the defense emphasized that the defendant and his wife had shared the management of PACE and often worked there from early morning to late evening. Their presence on site, together or separately, depended on the variable circumstances of productions, classes, maintenance, and appointments, and was generally unpredictable. The level of activity, the presence of volunteers on irregular schedules, and the accessibility of the theater to as many as fifteen persons with keys would preclude the degree of privacy and secrecy needed to carry out the patterns of conduct alleged by the Commonwealth. The defendant testified. He denied the accusations of sexual activity by all students.
Analysis. 1. Admissibility of March 10 IM confession. Before trial both the defendant and the Commonwealth submitted motions in limine addressing the admissibility of IM conversations between the defendant and DiMartino, particularly the March 10 narration of the first instance of the defendant's sexual intercourse with Ross. The judge conducted an evidentiary hearing at which DiMartino testified to the same information later offered at trial concerning the March 10 communication, including commencement of such messages in October of 2007, and the online name change and preliminary discussions of February 13 and March 9, respectively.
When the prosecutor asked DiMartino what evidence convinced him that the defendant had authored the March 10 IM, DiMartino answered that “the tone and language was [what] I was used to having with [the defendant], the way we would talk in the [PACE] cafe.” DiMartino added that the IM referred to prior in-person conversations between the two, including discussions about DiMartino's boyfriend, his mother's anger about his late-night presence at the defendant's house, and the defendant's sexual relationship with his wife.6
Defense counsel asked the judge to exclude the IM conversations in their entirety for lack of proof of their authenticity, especially because the Commonwealth had not conducted a forensic examination of DiMartino's computer. The judge concluded that sufficient evidence “allow[ed] a reasonable jury to find by a reasonable preponderance of the evidence that the defendant...
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