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Commonwealth v. Foster F.

Appeals Court of Massachusetts, Barnstable

December 10, 2014

Commonwealth
v.
Foster F., a juvenile

Argued October 9, 2014.

Complaint received and sworn to in the Barnstable County/Town of Plymouth Division of the Juvenile Court Department on March 20, 2012.

The case was tried before Mary O'Sullivan Smith.

Adjudication of delinquency reversed. Verdict set aside.

Rebecca Rose for the juvenile.

Suzanne D. McDonough, Assistant District Attorney, for the Commonwealth.

Present: Berry, Hanlon, & Carhart, JJ.

OPINION

[20 N.E.3d 969] Carhart, J.

The juvenile appeals from an adjudication of delinquency by reason of indecent assault and battery, arguing that

Page 735

the judge erroneously allowed in evidence Facebook[1] communications and the entire transcript of the victim's Sexual Abuse Intervention Network (SAIN) interview. The juvenile also argues that the prosecutor's improper closing argument warrants reversal. We reverse.

Background.

The jury heard the following testimony. On January 28, 2012, the [20 N.E.3d 970] juvenile met the victim and her friends Gwen and Nancy[2] at a park in downtown Plymouth. They met to play a " dating game," wherein the juvenile would spend some time with each of the three girls and then decide which girl he wanted to date. While each of the girls had been communicating with the juvenile through Facebook, they had not met him in person until they all went ice skating some two weeks earlier. The victim's and the juvenile's Facebook communications included explicit sexual exchanges.

On January 28, the juvenile spent time alone talking with Gwen and, later, Nancy. The victim testified that, when it was her turn to be alone with the juvenile, she and the juvenile went behind a monument and began kissing on a bench. At some point, the victim started to walk away, but the juvenile convinced her not to leave. She returned, they sat on a different bench, and the juvenile began " dry humping" her. The victim tried to push him away, and started walking away again. As the two were walking toward the monument, the juvenile pushed the victim against the monument and started sucking on her ear. He then sat the victim down and pinned her legs. Despite the victim's orders to stop, the juvenile placed his hand inside her pants and inserted several fingers into her vagina. Eventually, the other girls arrived and the juvenile stopped. Gwen testified as the first complaint witness and stated that the victim told her the juvenile had " forcibly fingered [the victim] against her will."

Before trial, the judge held a hearing on the admissibility of the Facebook communications with the juvenile. There was no testimony at the hearing, but the Commonwealth represented that a police report and testimony from witnesses would provide sufficient evidence at trial that the juvenile authored the communications attributed to him. The judge ...


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