Commonwealth v. Roby

• Decision Date: 04 June 2012
• Docket Number: SJC–11055.
• Parties: COMMONWEALTH v. Randy ROBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 398

969 N.E.2d 142

COMMONWEALTH

v.Randy ROBY.

SJC–11055.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 6, 2012.

Decided June 4, 2012.

Rebecca Rose for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

In 2001, an Essex County grand jury returned six indictments charging the defendant, Randy Roby, with rape of a child under the age of sixteen by force, G.L. c. 265, § 22A. At the defendant's first trial in November, 2003, the trial judge entered a required finding of not guilty on one of the indictments.¹ The jury returned guilty verdicts on the remaining indictments. However, in October, 2004, the judge allowed the defendant's motion for a new trial.

In December, 2008, the case proceeded to a new jury trial, before a different Superior Court judge, on the remaining five indictments. Although the indictments did not specify, the first three involved the child victim, Nancy, and the remaining two involved her half-sister, Toria.² At the close of the Commonwealth's evidence, the judge allowed the defendant's motion for required findings of not guilty on the charges of rape of a child by force as to Nancy, finding that there was insufficient evidence of the element of penetration, but submitted to the jury three charges of the lesser included offense of indecent assault and battery on a person under the age of fourteen, G.L. c. 265, § 13B. The judge also allowed the defendant's motion on the charges of rape of a child by force as to Toria, finding there was insufficient evidence of the element of force, but submitted to the jury two charges of the lesser included offense of statutory rape, G.L. c. 265, § 23. The jury convicted the defendant of all charges. The defendant appealed, arguing (1) that he was convicted of crimes for which he was not indicted in violation of his State and Federal constitutional rights; (2) error in the admission of first complaint testimony; (3) error by the judge's restriction of cross-examination of Toria and refusal to grant a mistrial; and (4) error in the admission of bad act evidence. We transferred the case here on our own motion. For the reasons that follow, we affirm the convictions.

1. Background. We summarize the relevant facts as the jury could have found them, reserving certain details for later discussion. In January, 2000, Nancy was six years of age and her half-sister, Toria, was ten years of age. The girls lived in Peabody with their mother, Paula,³ who was divorced and worked full time. Paula's mother, the girls' grandmother, Arlinda (called Linda), regularly cared for the girls at her house in Peabody. When Linda babysat the girls, the defendant, who was her live-in boy friend, often would be present.⁴

Nancy testified that her relationship with the defendant changed when he began “touching her.” During the period between January, 2000, and September, 2001, the defendant, in various rooms of the house, would reach his hand under Nancy's underwear, or pull down her pants and underwear, and touch the outside of her vagina with his fingers. This touching occurred once in the dining room, once in the exercise room, and more than ten times in the living room. When the touching occurred, others were often in the house, but not in the same room as Nancy and the defendant. In addition to the sexual touchings, the defendant once showed Nancy images of “half-naked” women on his computer and asked her if she could keep it a secret.

Toria testified that her relationship with the defendant changed around the same time period as her sister reported, starting when Toria was ten years of age. The defendant would have Toria sit on his lap to play computer games. On one occasion the defendant rubbed his hand on her leg and moved his hand higher up her leg while he was doing so. Another time, the defendant touched her vagina over her clothes. Several times the defendant put his hand inside Toria's pants, inserted his finger into her vagina and “move[d] it around.” This occurred about ten times in the dining room and once in Linda's bedroom. In the basement, dining room, and once in the outside shed, the defendant would stand Toria up, lift up her shirt, and suck on her nipples. Several times after touching Toria, the defendant instructed her not to tell her sister.

Once, in the basement, Toria was sitting on the defendant's lap at his workbench. The defendant started tickling Toria, then pushed up her shirt over her head. Linda walked in and saw them, started yelling, and told Toria to get off of the defendant. Linda then went back upstairs.⁵

Toria also testified that on more than one occasion, the defendant showed her computer images of naked or “semi-dressed” women. The defendant showed her images of women grabbing their breasts and women who were spreading their legs “wide open.” Neither girl observed the defendant touching the other girl in a sexual manner.

After Paula learned from the girls that the defendant had shown them computer images of undressed and partially undressed women, she went to Linda's house and had Linda enter his password on his computer. Paula found recently viewed Web sites, which were “triple-x sites.” She “clicked on” one Web site that revealed images of naked women and advertised other Web sites to visit for illicit sex. Linda did not remember this, but did recall one instance where she found the defendant at his computer watching a young (but adult) woman “stripping.”

After Paula learned about the defendant's having inappropriately touched the girls, she asked her mother to have the defendant telephone her. When they spoke about this, four days later, the defendant said that he wanted to be the one who showed her girls how to “be with a man.”

The defendant was the sole defense witness. He denied all the allegations. He claimed that he did not purposefully visit Web sites with images of naked women, but rather received such images because of then inadequate “spam” filtering. He acknowledged the incident in the basement with Toria that Linda observed, but maintained that Toria took off her shirt on her own initiative and then asked him to rub her back, which he did. He admitted to having borrowed money from Linda. He denied telling Paula over the telephone that he wanted to be the one to show the girls how to be with a man.

The theory of the defense was that none of the sexual touchings had ever occurred. The defendant's trial counsel suggested that they could not have occurred without having been observed because of the open floor plan of the house. He also argued that Paula had always resented him and had fabricated the events. Further, he claimed that the accusations were false because the girls did not disclose the abuse to a disinterested party for a long time.

2. Discussion. a. Amendment of the indictments. As relevant here, the indictments involving Toria alleged two offenses (rape of a child under the age of sixteen by force) that took place on “divers dates between January 1, 2000 and September 30, 2001” in Peabody, but otherwise did not specify where in Peabody. The grand jury heard testimony that the defendant had digitally penetrated Toria “at least three times,” including once in the dining room of Linda's house, once in the defendant's automobile, and once in Danvers, but the trial judge entered a finding of not guilty on that indictment, see note 1, supra, and accompanying text. At the second trial, however, Toria testified that the defendant digitally penetrated her in the dining room about ten times and once in her grandmother's bedroom. After modifying the indictment to reflect two charges of statutory rape, the judge instructed the jury that a guilty verdict on each indictment required they unanimously find at least one occasion of the offense on Toria in the dining room and one occasion in Linda's bedroom. Following the final charge, the defendant renewed his motion for a required finding of not guilty on the latter indictment, arguing that he had not been indicted for an offense that took place in Linda's bedroom. The judge denied the motion. The defendant argues this was error and that he was convicted of a crime for which he was not charged (i.e., statutory rape in Linda's bedroom) in violation of the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. ⁶

“Under Mass. R.Crim. P. 4(d), 378 Mass. 849 (1979), a judge has discretion to allow an amendment of an indictmentif the amendment is one of form, not substance, and if the amendment will ‘not result in prejudice.’ ” Commonwealth v. Miranda, 441 Mass. 783, 787, 809 N.E.2d 487 (2004), quoting Commonwealth v. Knight, 437 Mass. 487, 491–492, 773 N.E.2d 390 (2002). “Article 12 ... adds the requirement that the amendment not ‘materially change[ ] the work of the grand jury.’ ” Commonwealth v. Miranda, supra, quoting Commonwealth v. Knight, supra at 492, 773 N.E.2d 390. Here, we assume without deciding that with his instructions to the jury, the judge effectively amended the last indictment (as specified in the grand jury evidence, see Commonwealth v. American News Co., 333 Mass. 74, 77, 127 N.E.2d 661 [1955] ) by changing the location of the offense from the defendant's automobile to Linda's bedroom. We conclude that this so-called variance in location was not material and was one of form only. “The time and place of the commission of the crime need not be alleged [in the indictment] unless it is an essential element thereof.” G.L. c. 277, § 20. See Commonwealth v. Megna, 59 Mass.App.Ct. 511, 514–515, 797 N.E.2d 1 (2003). The location of the offense is not an element of either statutory or forcible rape. See Commonwealth v. King, 445 Mass. 217, 222 n. 3, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006)( King ) (elements of rape...