Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Gilman

Appeals Court of Massachusetts, Worcester

July 21, 2016

COMMONWEALTH
v.
DAVID GILMAN

          Heard: May 6, 2016.

         Indictments found and returned in the Superior Court Department on April 23, 2010.

         The cases were tried before Peter B. Krupp, J.

          Diana Cowhey McDermott for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth.

          Present: Cohen, Green, & Neyman, JJ.

          GREEN, J.

         A Superior Court jury convicted the defendant, a middle school music teacher, of rape and three counts of indecent assault and battery on a child under fourteen, aggravated in the first instance by age difference and in all instances by reason of the defendant's status as a mandated reporter. On appeal, he claims error in the admission of a number of "chat" messages he exchanged with the victim (a twelve year old student of his at the time of the assaults) on the social networking Web site Facebook. He also claims that he was deprived of his constitutional right to effective representation by counsel when his counsel promised the jury that the defendant would testify at trial, but then broke that promise when the defendant did not testify after the Commonwealth rested. We discern no cause to disturb the convictions, and affirm.[1]

         Background.

         We summarize the facts the jury could have found, viewed in a light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the fall of 2008, the victim was a sixth grader at Leicester Middle School; the defendant was her music teacher. At the end of her sixth grade year, the victim went on a school-sponsored camping field trip. The defendant was a chaperone on that field trip, and he and the victim spent a lot of time together while on the trip. At the end of the trip, the defendant put his cellular telephone (cell phone) number and his name into the victim's cell phone contact list, and they exchanged text messages frequently thereafter. Over the course of the following summer, which included another school-sponsored trip to the Six Flags New England amusement park in which the defendant and the victim participated, their correspondence continued, and they eventually became "friends" on Facebook. The defendant and the victim began a continuing Facebook "chat" conversation around October of 2009, when the victim was a seventh grader and the defendant was her music teacher and drama club director.

         When the defendant or the victim wanted to "chat" with each other on Facebook, they would alert the other by sending a text message. The victim knew that her Facebook conversation was with the defendant because they discussed things that they had done in person, and things that were known only to them. The defendant and the victim chatted "a lot of time at night, " on topics ranging from the drama club, their time together on the previous summer's school trips, and their developing affection for each other.[2]

         During the course of the Facebook conversations, the defendant and the victim frequently professed their love for each other. On October 25, 2009, they talked about kissing each other:

Defendant: "When I kiss u it will mean everything 2 me."
Victim: (She replied with a smiley face).
Defendant: "Kiss me back please?"
Victim: "Yes."
Defendant: "I will luv u 4ever!!! Will u kiss me back bcuz u luv me or just bcuz."
Victim: "Because I love u."
Defendant: "My girl."

         On October 30, 2009, the victim attended a school dance with two of her friends. Halfway through the dance, the victim received a text message from the defendant asking her to meet him in the hallway. The victim went into the hallway, where she met the defendant and followed him into the music room. In the music room, they moved to an area where the victim could not see the hallway. The defendant then touched the victim's hips, and proceeded to kiss her on the mouth; his lips and tongue touched her lips and tongue. The defendant and the victim stayed in the music room for about five to ten minutes, and the victim then returned to the gymnasium. Later that evening, the defendant and the victim chatted about their kiss on Facebook.

         During this time period, the defendant frequently reminded the victim to delete or clear her messages, and became concerned when the victim told him that one of her friends saw messages from him. When the victim tried to reassure the defendant he stated, "Damn, . . . I love you so much, and I will lose my job, my life, and I will go to jail." Despite acknowledging that "[w]e already broke the law, " the defendant continued to engage the victim in sexual conversation, and eventually talked about what he wanted to do to her sexually.[3]

         At some point after Thanksgiving, the defendant and the victim made a plan to meet alone in the band room at the school. After her last class, the victim went into the band room as planned. Once in the band room, the victim went immediately to the defendant. He did not say anything to her, but grabbed her hips with his hands and kissed her on her mouth with his lips and tongue. The defendant also touched the victim's breast with his hand. The defendant and the victim continued to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.