Opinion
19-P-1149
08-21-2020
COMMONWEALTH v. RALPH BECKER METELLUS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of one count of indecent assault and battery on a person over the age of fourteen, for sexually assaulting his teenage stepdaughter. The defendant was sentenced to two years in the house of correction, with nine months to serve, followed by a period of probation. The conditions of probation included the imposition of global position system (GPS) monitoring of the defendant, as mandated by G. L. c. 265, § 47. As to the conviction, the defendant argues that reversal is warranted because (1) the evidence was insufficient, and (2) the trial judge abused his discretion in admitting evidence of a subsequent, uncharged bad act. As to the sentence, the defendant argues that the GPS monitoring must be vacated and remanded so that a judge can revisit the condition in light of Commonwealth v. Feliz, 481 Mass. 689 (2019) -- which issued after the sentence was imposed. We affirm.
Background. In 2013, the victim's mother married the defendant. In 2016, the defendant moved into the Everett home where the victim and her mother lived. The indecent assault and battery occurred in October of 2016, when the victim was in her final year of high school.
At trial the victim testified that on the day in question, she was lying in her bed watching Netflix when the defendant entered her bedroom "to say hi." The victim was lying underneath a blanket, and wearing only a long sweater and underpants. After a brief exchange, the defendant approached the victim and tried to kiss her. The victim resisted, and said "no" and "stop." The defendant proceeded to remove the blanket and the victim's underwear, and then "bit the top of [her] vagina." After some continued struggle, the victim managed to free herself from the defendant and to leave the house. She did not contact the police at that time.
The victim also testified on direct examination to a subsequent interaction with the defendant, in January of 2017, at her mother's baby shower. This is the testimony that the defendant challenges on appeal as an improperly uncharged subsequent bad act. According to the victim, she was sitting apart from others at the shower when the defendant approached her, called her "beautiful," and removed her headband and glasses. After the victim asked repeatedly for her things back, the defendant "put [her] head band on," and then "pulled down [her] shirt" and "put [her] glasses on [her] shirt." The following month, in February of 2017, the victim reported the October assault to the police.
At the start of trial the prosecution filed a motion in limine to admit the bad act evidence through the victim's testimony, which the judge granted.
Both the defendant and the mother testified for the defense. The defendant denied the charges. The defense's theory was that the victim fabricated the charges, as she had an acrimonious relationship with her mother. The defense pointed out that the victim had left home in early February of 2017 after a particularly heated argument, days before reporting the defendant's assault to the police.
The jury convicted the defendant of one count of indecent assault and battery. As noted, the trial judge imposed GPS monitoring as one of the conditions of probation. The defendant appeals.
The trial judge granted the defendant's motion for a required finding of not guilty on the second count.
Discussion. 1. Sufficiency of the evidence. We first address the defendant's challenge to the sufficiency of the evidence. On appeal, the defendant argues only that the jury were presented with "competing intrafamily narratives," and that "credibility remained an open question." Credibility determinations, however, are for the jury. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978); Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 274 (2001). Here the victim testified directly to the defendant's sexual assault. The jury could reasonably have based its verdict on the victim's testimony. See Commonwealth v. Gonsalves, 23 Mass. App. Ct. 184, 185 (1986) (victim's testimony sufficient).
2. Subsequent bad acts evidence. The defendant next argues that the victim's testimony regarding his conduct at the January baby shower was improperly admitted. He contends that this testimony went only to his propensity to commit the charged crime, and was not relevant for any other purpose. Furthermore, he argues, this testimony was unduly prejudicial. We do not agree.
In general, "[e]vidence of a[n] . . . act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Mass. G. Evid. § 404(b)(1) (2019). Such evidence may, however, "be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. at § 404(b)(2). See Commonwealth v. Bryant, 482 Mass. 731, 734 (2019) (admissible purposes also include "common scheme" and "pattern of operation"). For sexual assault cases, in particular, our case law has recognized that evidence of other acts by the defendant directed at the victim can be admitted to show "the probable existence of the same passion or emotion at the time" of the offense. Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 475 (1998), quoting Commonwealth v. Johnson, 35 Mass. App. Ct. 211, 217 (1993). See Commonwealth v. King, 387 Mass. 464, 471-473 (1982). Even if relevant to one of these permissible purposes, however, the bad act evidence "is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk." Mass. G. Evid. § 404(b)(2). See Bryant, supra. We review the judge's decision to admit evidence for abuse of discretion. See Commonwealth v. Veiovis, 477 Mass. 472, 482 (2017).
These rules apply to evidence of both prior and subsequent bad acts. Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 566-567 (2015).
We do not perceive an abuse of discretion in admitting the testimony regarding the defendant's conduct at the baby shower. While the testimony was quite vague, the jury could infer that the actions showed that the defendant had a sexual interest in the victim, and an "inclination" to act on his interest against her wishes. See Holloway, 44 Mass. App. Ct. at 475. The victim testified that the defendant called her "beautiful" and touched her in an unwelcome and invasive manner. The victim told the defendant to stop, and he did not. This was not just propensity evidence, but evidence specific to the victim, proximate in time to the charged assault. In light of the aforementioned line of case law, we cannot say that the judge abused his discretion. See Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 679 (2001), S.C., 437 Mass. 620 (reversing on other grounds) (judge has "considerable discretion" to weigh probative value of bad acts).
The Commonwealth may have anticipated more fulsome testimony from the victim. When arguing in support of the motion in limine, the prosecutor stated that the defendant "grab[bed] the alleged victim's shirt and pull[ed] it out and was looking down her shirt." Such detail, however, did not materialize in the victim's testimony.
Nor do we agree with the defendant that the judge abused his discretion because any probative value of the bad act evidence was outweighed by the risk of unfair prejudice to the defendant. The defendant asserts that the evidence confused or misled the jury, noting that during deliberations the jury asked the judge whether they had to issue "two separate verdicts? One for October, one for January?" The judge responded that the only charge before the jury was based upon the alleged October assault. Notably, the defendant did not request any additional curative instruction. As the Supreme Judicial Court has stated in reviewing the admission of bad acts evidence, "the judge was not required on his own to instruct the jury as to the purpose for which the evidence was offered." Commonwealth v. Bradshaw, 385 Mass. 244, 270 (1982). Moreover, the Commonwealth did not rely heavily on the bad act evidence -- the victim's testimony regarding the subsequent bad act occupied little of her direct examination, and the prosecutor did not mention it in closing argument.
3. GPS monitoring issue. Finally, the defendant requests that we vacate the imposition of GPS monitoring as a condition of probation, based upon Feliz. The GPS monitoring here was ordered in accordance with G. L. c. 265, § 47, which requires GPS monitoring for defendants on probation who have been convicted of certain sex offenses, including the offense for which the defendant was convicted. Feliz held, based on art. 14 of the Massachusetts Declaration of Rights, that before imposing GPS monitoring under G. L. c. 265, § 47, a judge must make an "individualized determination of reasonableness." Feliz, 481 Mass. at 690-691. "In making this determination, courts must balance 'the Commonwealth's need to impose GPS monitoring against the privacy invasion occasioned by such monitoring.'" Commonwealth v. Johnson, 481 Mass. 710, 719 (2019), quoting Feliz, supra at 691. It appears from the sentencing transcripts that at the time of sentencing all parties assumed that GPS monitoring was statutorily required for the defendant, and the record does not indicate that the judge made an "individualized determination" as subsequently required by Feliz.
We note that the defendant's probation, and with it the GPS monitoring, is apparently due to end on September 18, 2020.
Unlike the defendant in Feliz, however, the defendant here did not object to the GPS monitoring condition. See Feliz, 481 Mass. at 691-693. Even assuming that Feliz applies retroactively to sentences imposed before Feliz was decided, we would not automatically grant the defendant relief where there was no contention of error before the sentencing judge. Rather, the defendant at least would have to show that the failure to make the Feliz individualized determination gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Phim, 462 Mass. 470, 478 (2012) (reviewing waived constitutional claim under substantial risk standard). See also Commonwealth v. Broom, 474 Mass. 486, 492-493 (2016) (reviewing waived art. 14 claim for substantial likelihood of miscarriage of justice).
Neither the parties, nor any cases that we have identified, address the issue of Feliz's retroactive application.
Under the circumstances here, we are not persuaded that there is such a substantial risk of a miscarriage of justice. Notably, defense counsel not only did not object to the condition -- he cited the GPS monitoring condition as a reason not to sentence the defendant to jail. This argument was arguably successful in part, as the judge imposed less jail time than the Commonwealth sought. Moreover, under the balancing test required by Feliz, the judge must consider a "constellation of factors," which may include whether there was a specific victim of the crime, and the defendant's proximity to the victim while on probation. Feliz, 481 Mass. at 701, 705-706. As the Commonwealth points out, here the defendant was residing in the neighboring town at the time of sentencing. Moreover, the record shows that the sentencing judge was concerned with the victim's safety, as the conditions of probation required the defendant to stay away from and to not contact the victim. Under those circumstances we do not have a "serious doubt whether the result . . . might have been different" with respect to the GPS monitoring condition. Phim, 462 Mass. 470, 478 (2012), quoting Commonwealth v. Russell, 439 Mass. 340, 345 (2003). We note that the Supreme Judicial Court reached a similar conclusion in Johnson, 481 Mass. at 718-719, where it upheld a GPS monitoring order that predated Feliz, based upon facts in the record that showed a "legitimate probationary purpose" for the monitoring.
Judgment affirmed.
By the Court (Neyman, Englander & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 21, 2020.