Heard: March 13, 2017.
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.
consolidation, the cases were tried before Gilbert J. Nadeau,
Mannion Banwarth for the defendant.
L. Johnston, Assistant District Attorney, for the
Present: Green, Wolohojian, & Sullivan, JJ.
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.
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.
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. 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.
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.