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Commonwealth v. Moniz

Appeals Court of Massachusetts, Middlesex

June 17, 2015

Commonwealth
v.
Robert Moniz

Argued February 12, 2015

 Indictments found and returned in the Superior Court Department on September 2, 2004.

The case was heard by Elizabeth M. Fahey, J., and a motion for a new trial, filed on January 14, 2014, was considered by her.

James A. Reidy for the defendant.

Jamie Charles, Assistant District Attorney ( Kevin L. Ryle, Assistant District Attorney, with him) for the Commonwealth.

Present: Cohen, Green, & Massing, JJ.

OPINION

Massing, J.

The defendant, convicted of eight counts of sex offenses committed against his adopted son when the boy was between the ages of fourteen and eighteen years old, appeals from the three convictions based on his conduct after the victim turned sixteen, one for rape in violation of G. L. c. 265, § 22( b ), and two for assault with intent to rape in violation of G. L. c. 265, § 24,

Page 533

claiming insufficiency of the evidence.[1] He also appeals from the denial of his motion for a new trial alleging that trial counsel was ineffective for failing to move to suppress the defendant's postindictment admissions to a person he asserts was acting in a law enforcement capacity. We affirm.

Background

The victim was born in August, 1978. The defendant met the victim after he entered into a romantic relationship with the victim's mother. In 1988, the victim's family began living with the defendant in Enfield, New Hampshire. In April, 1989, the defendant married the victim's mother and adopted the victim.

The first sexual incident occurred when the defendant arranged to sleep alone with the victim in a cabin the defendant had built in the middle of the woods, approximately two hundred yards from the house in Enfield. The defendant touched the victim's genitals over his clothing for a couple of minutes before they went to bed. The victim asked the defendant what he was doing, and the defendant told him, " [T]his is what all good friends do." The defendant would " do the same thing" at the print shop that the defendant and the victim's mother owned, where the victim sometimes worked.

The defendant took the victim into the cabin once or twice a week, mostly on the weekends, and more frequently during the summertime. Over time, the defendant began touching the victim's genitals under his clothing. The defendant would arrange to stay home alone with the victim while the victim's mother went out shopping for two to three hours at a time. He performed fellatio on the victim numerous times, asked the victim to reciprocate, and told the victim that the victim was gay. The victim refused the defendant's requests for fellatio but was afraid he could not otherwise protect himself from the defendant.

The victim asked the defendant at least once in New Hampshire, " [W]hy he was doing that, why didn't he just love my mother and leave me alone?" The defendant convinced him that nobody would believe him if he reported their sexual encounters, and that it was better for his family if he would submit to the defendant's sexual demands. As a result, ...


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