Heard: December 8, 2017.
found and returned in the Superior Court Department on May 1,
2012. The cases were tried before Robert N. Tochka, J.
F. Petersen for the defendant.
Cimini, Assistant District Attorney, for the Commonwealth.
Present: Sacks, Ditkoff, & Singh, JJ.
defendant, Richard Childs, appeals from his Superior Court
convictions on three indictments charging indecent assault
and battery, see G. L. c. 265, § 13H, and one indictment
charging indecent assault and battery on a child, see G. L.
c. 265, § 13B, arising out of his seven-year abusive
relationship with a friend's daughter. The charged acts,
which occurred in Middlesex County, happened at the beginning
and the end of that time period. We conclude that the judge
properly allowed the Commonwealth to present evidence that
the abuse continued during the period in which the family
lived outside Middlesex County to show the nature of the
relationship and the absence of mistake or accident. As we
also conclude that the prosecutor properly used the uncharged
conduct for these purposes during closing argument, we
The Commonwealth's case.
victim lived with her parents and her sister, who is two
years younger than the victim. The victim's father had a
serious problem with alcohol use, and the victim's mother
had a severe mental illness that resulted in her spending
most of her time in her room. The defendant was a close
family friend and had been a part of the victim's life
since her infancy.
to the victim's turning seven years old, the victim and
her family lived in Hudson in Middlesex County. When the
victim was five or six years old, she was in the attic with
the defendant, who was teaching her how to read. The
defendant began rubbing his penis with his own hand "on
the outside of his pants." The defendant then grabbed
the victim's hand and rubbed it against his penis, also
on the outside of his pants. He continued to read words to
her as he did this.
before the victim's seventh birthday, she and her family
moved to Springfield in Hampden County. In Springfield, the
defendant would come to the victim's house "mostly
every Sunday" during football season to drink alcohol
and to watch football games with the victim's father.
Whenever the victim's father would leave the room, the
defendant would continue his sexual advances towards the
victim. He would rub his penis over his pants, lick his lips,
and direct gestures indicating intercourse with his fingers
toward the victim. The victim "really didn't have
any reaction to it."
victim recounted two specific incidents to the jury from her
time outside Middlesex County. When she was seven or eight
years old, the defendant brought the victim and her sister
"glow in the dark" stickers for their shared
bedroom. After the girls affixed the stickers, the defendant
expressed his desire to "see . . . how the room
looked." This, of course, required turning off the
lights. Once the lights were out, the defendant took his
penis out of his pants and rubbed it against the victim's
face. The victim ran and hid behind a dresser.
the victim was eight or nine years old, the victim's
father asked the victim to accompany the defendant on a drive
to Ludlow (also outside Middlesex County) to fill the
defendant's gasoline tank. While driving, the defendant
rubbed his hands over the victim's abdomen and on her
lap, over her vagina. She told him to stop, and then he
rubbed her cheek.
victim recounted two other specific acts of molestation that
the judge excluded and were not heard by the
jury. One occurred when the victim was ten or
eleven years old. The victim and her sister were in a pool
and the defendant exposed his penis to them. The other
involved the defendant's putting his penis in the
victim's mouth and then licking her vagina. The time
frame and location for this latter incident was vague; the
Commonwealth stated that it occurred when the victim was six
years old (before she moved to Springfield), but also stated
that it occurred in 2006, when the victim would have been
eight or nine years old and living in
2011, shortly after the victim turned fourteen years old, her
family lost electricity to their house in Springfield and
decided to return to an empty apartment in Hudson that her
family still owned. The first evening, the victim returned
from a visit to her grandmother's apartment to find her
father passed out on a couch, with the defendant sitting next
to him watching television. After the victim and the
defendant talked for a while, she asked the defendant if she
and her sister could go to his apartment (which was nearby)
and use his computer. He agreed.
approximately one hour, the defendant returned to his
apartment while the victim and her sister were still there.
The defendant put his hand down the back of the victim's
shirt and began rubbing her back. The defendant then moved
his hand to the front and touched her breasts underneath her
bra. The victim was "just sitting there." The
defendant touched the victim's "stomach" under
her clothes. Again, the victim was "just sitting
there." The defendant placed a hand over her pants, over
her vagina area, and rubbed back and forth. Again, the victim
was "just sitting there." After "a
minute," the defendant stopped.
victim's sister then went into the hallway to make a
telephone call. The defendant took the victim's finger
and sucked on it for approximately thirty seconds, going
"back and forth against [her] finger." The victim
was "still sitting there ... in shock" and
"just let it happen." When the victim's sister
returned and saw this, the defendant stopped. After the
victim's sister reentered the room, the defendant rubbed
his waist against the victim's shoulder. The victim could
feel his erection through his pants. Again, the victim was
"still sitting there."
another evening in the next few days, the defendant
repeatedly put his hand on the victim's buttocks, over
her clothing. He said, "Excuse me," but the victim
was convinced that it was intentional.
Hudson police detective interviewed the defendant shortly
after the incidents. According to the detective, the
defendant stated that, after tending to the victim's
father, he had returned to his apartment. He wanted to see
what the girls were doing on his computer, so he placed his
hands on the chair or possibly on the girls' shoulders
and leaned forward to see. He said that "it could have
been a possibility" ...