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Commonwealth v. Hamel

Appeals Court of Massachusetts, Bristol

April 13, 2017

COMMONWEALTH
v.
JUSTIN HAMEL.

          Heard: March 13, 2017.

         Complaints received and sworn to in the jury session of the Fall River Division of the District Court Department on November 21, 2011, and May 31, 2012.

         After consolidation, the cases were tried before Gilbert J. Nadeau, Jr., J.

          Laura Mannion Banwarth for the defendant.

          Tara L. Johnston, Assistant District Attorney, for the Commonwealth.

          Present: Green, Wolohojian, & Sullivan, JJ.

          GREEN, J.

         On appeal from his convictions on two counts of indecent assault and battery on a child under the age of fourteen, the defendant assigns error to the admission, over objection, of medical records describing diagnosis and treatment of the child for dermatitis on his penis, without expert testimony establishing a causal connection between the alleged assault and the described skin condition. The defendant also observes that the trial prosecutor's closing improperly suggested that the jury should consider the child to be credible, by reason of his willingness to testify in court to the alleged assault. See Commonwealth v. Beaudry, 445 Mass. 577, 586 (2005); Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 825-826 (2009). We agree that a new trial is warranted, and reverse the judgments.

         Background.

         In September, 2011, the child (then twelve years old) moved into a new house with his family. The defendant (then thirty-one years old) often stayed in the family home, and the child and defendant spent a lot of time together. The child and the defendant went to the beach, played video games, and watched television together. The child testified that he had a good relationship with the defendant, and liked him.

         One day, while the child and the defendant were sitting or lying on his bed watching television, the defendant grabbed the child's penis with his hand and moved his hand up and down until "wet stuff came out." The child testified that something similar happened with the defendant on ten to twenty other occasions during the time the defendant stayed with his family. The child also testified that the defendant kissed him on the lips between five and ten times. On one of those occasions, the child's step-mother saw the defendant kiss the child; thereafter, the child's step-mother and mother took him to speak to a woman at a child advocacy center, where the child reported the kiss but did not mention that the defendant had touched the child's penis.[1] At some later point, the child returned to the child advocacy center and reported to the same woman that the defendant had been touching his penis. When the woman asked the child why he had not reported that touching before, the child explained that he liked the defendant and didn't want to get him in trouble.

         One day in September of 2011, after the defendant had been staying with the child's family for more than two weeks, the child began to experience pain in his penis. The child's mother took him to the doctor, where an examination revealed that the skin of his penis was red and irritated. The doctor prescribed a cream, which resolved the condition. The child had never experienced a similar condition on his penis before September of 2011.

         Discussion.

         Medical ...


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