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Commonwealth v. Dale

Appeals Court of Massachusetts, Suffolk

August 25, 2014

Commonwealth
v.
Andre Dale

Argued February 7, 2014

Indictment found and returned in the Superior Court Department on November 17, 2009.

The case was tried before Patrick F. Brady, J.

David D. Nielson for the defendant.

Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth.

Present: Trainor, Katzmann, & Hanlon, JJ.

OPINION

[15 N.E.3d 234] Katzmann, J.

A Superior Court jury convicted the defendant of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B, as a lesser included offense of rape of

Page 188

a child under sixteen years of age, G. L. c. 265, § 23.[1] The principal issue in this appeal is the admissibility of first complaint testimony where the victim has no memory of the complaint. In light of the primary purpose of first complaint evidence, we determine that such testimony is admissible. The defendant also contests the admission of testimony of a subsequent complaint, of testimony pertaining to the victim's bodily functions, and of photographic evidence showing injuries to the victim and her brother. We affirm.

1. Background .

We summarize the facts as a jury could reasonably have found, reserving certain details for discussion with the specific issues raised. The series of incidents underlying the conviction began when the victim was seven or eight years old. The incidents occurred when the victim, S.B., and her older brother, M.B., lived with their great aunt, Tina Dale (Tina), and great uncle, Fred Dale (Fred).[2] The defendant is the victim's cousin, the son of Tina and Fred; the victim and her brother referred to him as " Uncle Eddie." During the period of the assaults, the defendant lived in the same house as the victim and had a room of his own. He only stayed in the house several nights a week.

The victim testified that, on multiple occasions over the course of several years, the defendant would sexually assault her in the Dales' residence. She testified that the first incident began when the defendant called her into his room after she was in bed. He told her that he was " checking for scars to see if everything was okay," and he pulled down her underwear and examined her visually. Because the victim had been subject to a beating that day from Tina, the victim understood the defendant to be checking to see whether the beating had caused any bruises.[3] After the victim returned to the room in which she was sleeping, the defendant called her back into his room, and he told her to lie down on a towel on the floor and to pull down [15 N.E.3d 235] her underwear. The defendant

Page 189

pulled up the victim's pajama gown, opened his robe, and pulled out his penis. Lying on top of the victim, he placed his penis against her vagina, and he " peed on her." [4] She testified that this pattern was repeated over the course of multiple assaults,[5] ending only when the defendant moved out of the house.[6] She testified that the incidents generally occurred in the defendant's room, which was across the hall from the room where she often slept during the time of the assaults. She also testified that a similar incident happened at least once in a different room of the house.

M.B. testified as the first complaint witness. He testified that S.B. had told him -- at the time the incidents were ongoing -- that the defendant had touched her and had " peed on her or something like that." M.B. did not understand the meaning of this brief account as he was seven or eight years old at the time. But M.B. told his sister, in response, " that doesn't sound right." He testified that his sister looked scared as she told him about the incident. M.B. did not report the abuse or repeat the conversation to others. S.B. testified that she did not remember telling M.B. about the assaults during the time that they were occurring. M.B. also testified to a time, a year or two after her report to him about the assault, when his sister had told him that her urine was bloody and had showed him ...


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