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Commonwealth v. Lopez

Appeals Court of Massachusetts, Middlesex

May 24, 2017

COMMONWEALTH
v.
AUGUSTO LOPEZ.

          Heard: March 6, 2017.

         Indictments found and returned in the Superior Court Department on May 17, 2012.

         The cases were tried before Kenneth W. Salinger, J.

          Jane Larmon White, Committee for Public Counsel Services, for the defendant.

          Jessica Langsam, Assistant District Attorney, for the Commonwealth.

          Present: Carhart, Massing, & Lemire, JJ. [1]

          MASSING, J.

         The defendant was convicted of two counts of rape and abuse of a child under sixteen years of age, aggravated by an age difference of ten years or more, see G. L. c. 265, § 23A(b), two counts of rape of a child by force, G. L. c. 265, § 22A, and one count of enticement of a child, G. L. c. 265, § 26C. The charges arose from a single incident involving a twelve year old girl. The only evidence of the crime was the testimony of the child, who was fifteen years old at the time of trial. At issue is the judge's decision to admit the testimony of the child's "therapeutic mentor" that the child lacked the ability to engage in "imagination play." We conclude that the testimony was improperly admitted to prove that the child was incapable of telling lies and that its use for this purpose was prejudicial, warranting a new trial.

         Background.

         a. The crime.

         When the child was twelve years old she lived next door to the defendant, whom she called "Pachoo." The defendant lived with Chrissy, who was a friend of the child's mother, and Chrissy's three children, two of whom were younger than the child. The defendant was Chrissy's boy friend and was fifty-five years old at the time.

         According to the child, one night she went next door to babysit for Chrissy's two younger children while Chrissy went out to play bingo. The child had just finished using the upstairs bathroom when the defendant called her into Chrissy's bedroom. The defendant pushed her onto the bed, took off her pants and underwear, got on top of her, and "sticked his dick in [her] vagina." At some point he stopped, and the child put her underwear and pants back on. Then the defendant put his hand underneath her clothes and put his finger inside her vagina.

         After this, the two of them went downstairs to the parlor, sat on the couch, and watched television. The child testified that the defendant grabbed her hand and "tried to make [her] touch his dick, " but she did not actually touch him. The child did not remember where Chrissy's children were during these events. When Chrissy returned, the child went back home without saying anything to anyone.

         b. The child's ...


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