NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-212
COMMONWEALTH
vs.
HAKIM H., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant juvenile was adjudicated delinquent on a
complaint charging rape, in violation of G. L. c. 265, § 22 (b),
and indecent assault and battery on a person fourteen years old
or older, in violation of G. L. c. 265, § 13H. On appeal, the
juvenile claims that the adjudication of delinquency should be
reversed because of errors surrounding the admission of evidence
concerning an examination of the victim conducted by a Sexual
Assault Nurse Examiner (SANE). We affirm.
Background. The victim underwent a SANE examination a few
hours after reporting that the juvenile had raped her. The
nurse who examined the victim testified about her findings and
the forms she completed. Because the Commonwealth had
previously agreed to the juvenile's motion in limine not to
permit the nurse to give the impression that SANE nurses are "only brought in when there was a sexual assault," the
prosecutor and the nurse were careful to describe the medical
examination as a "forensic medical examination" rather than a
"sexual assault" examination, and to refer to the victim as the
"patient."
Forms that the nurse completed during the examination were
admitted in evidence. The words "sexual assault," "assault,"
and "sexual crime" were redacted from the titles of all the
forms; however, the parties failed to redact the words "assault"
and "assailant" in several places.
Sections of SANE forms 2A and 2B ask the examiner to check
boxes, based on the patient's report or the examiner's physical
findings, under the category "weapon/force used." On both forms
the nurse checked the box for "hold down/body weight." Form 2B
included a space for additional description, where the nurse
wrote "woke to person on top." Regarding this section of the
form, the prosecutor asked the nurse, "What, if anything, did
[the victim] describe?" The nurse answered, "[She] described
being held down."
Discussion. 1. Failure to redact. The juvenile claims
that it was reversible error to admit the SANE forms in evidence
without redacting the words "assault" and "assailant." See
Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). The
Commonwealth agrees. The parties disagree, however, as to
2 whether the juvenile objected and, accordingly, the standard of
review.
The juvenile's counsel objected when the Commonwealth
requested that the SANE forms be marked as an exhibit. It is
not clear what the objection was. It appears that counsel
objected to only one portion of the exhibit, and that the
objection had to do with content that was unrelated to medical
treatment.1 "Because the [juvenile's] objections at trial went
to the substance of the victim's . . . statements [on the
forms], and the error here stemmed not from admission of those
statements, but rather from the failure to redact the language
of [the form] itself, we review for substantial risk of
miscarriage of justice." Dargon, 457 Mass. at 397.
We discern no such risk, because we are confident that in
the context of the entire trial, the failure to redact did not
materially influence the verdict. See id. at 397-398. See
Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). The case
turned on whether the victim consented to the juvenile's
indecent touching and penetrating her. She testified that she
woke from a heavy sleep and felt the juvenile's penis in her
vagina. He testified that the victim was awake and willing when
1 Indeed, in his brief the juvenile states that he "objected to the forms coming in that do not go to treatment but to evidence collection."
3 he inserted his finger in her vagina and licked her vagina and
between her buttocks, and that she did not object until he
touched the tip of his penis to her "general butt area." In his
statements to his friends, however, he said he thought he had
"raped" the victim (although he claimed at trial that he "didn't
have a value of what that word actually meant in that time" and
that "[t]he word meant nothing at the time"). His oral and
written statements to the police suggested that the victim was
asleep and unresponsive. In closing argument, the prosecutor
focused on the testimony of the victim, of the victim's and
juvenile's friends, and on the juvenile's admissions. The
prosecutor mentioned the SANE report only once, in reference to
the tearing and bleeding of the victim's hymen. See Dargon, 457
Mass. at 398 (in closing argument prosecutor referenced only
admissible portions of SANE forms). We are confident that the
preprinted references to "assault" and "assailant" on the forms
had little, if any, influence on the jury's assessment of the
victim's lack of consent.
2. Descriptions of victim being held down. The checkmarks
on the forms for "hold down/body weight" and the victim's
description that she "woke to person on top" were properly
admitted under the medical records exception to the hearsay
rule. See G. L. c. 233, § 79; Mass. G. Evid. § 803(6)(B)
(2023). "The statute has long been construed to permit the
4 admission of a record that relates directly and primarily to the
treatment and medical history of the patient, 'even though
incidentally the facts recorded may have some bearing on the
question of liability.'" Commonwealth v. Torres, 479 Mass. 641,
653 (2018), quoting Commonwealth v. Dube, 413 Mass. 570, 573
(1992). The exception extends to "physical observations from
which inculpatory inferences flow" (quotation and citation
omitted). Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).
See, e.g., Commonwealth v. McGann, 484 Mass. 312, 319-320 (2020)
(statement "repeatedly beat him about the head/face and bit him
several times in arms and also came after him with steak knife"
in victim's medical records properly admitted). The fact that
SANE records have the "dual purpose" of medical treatment and
criminal investigation does not make them inadmissible. See
Dargon, 457 Mass. at 393, 395-396.
The defendant argues, for the first time on appeal, that
these notations of the forms are nonetheless inadmissible under
a free-standing notion of "reliability" that he derives from
Bouchie v. Murray, 376 Mass. 524, 528 (1978) ("the medical
records exception statute makes admissible only those portions
of records relating to treatment and medical history which
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-212
COMMONWEALTH
vs.
HAKIM H., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant juvenile was adjudicated delinquent on a
complaint charging rape, in violation of G. L. c. 265, § 22 (b),
and indecent assault and battery on a person fourteen years old
or older, in violation of G. L. c. 265, § 13H. On appeal, the
juvenile claims that the adjudication of delinquency should be
reversed because of errors surrounding the admission of evidence
concerning an examination of the victim conducted by a Sexual
Assault Nurse Examiner (SANE). We affirm.
Background. The victim underwent a SANE examination a few
hours after reporting that the juvenile had raped her. The
nurse who examined the victim testified about her findings and
the forms she completed. Because the Commonwealth had
previously agreed to the juvenile's motion in limine not to
permit the nurse to give the impression that SANE nurses are "only brought in when there was a sexual assault," the
prosecutor and the nurse were careful to describe the medical
examination as a "forensic medical examination" rather than a
"sexual assault" examination, and to refer to the victim as the
"patient."
Forms that the nurse completed during the examination were
admitted in evidence. The words "sexual assault," "assault,"
and "sexual crime" were redacted from the titles of all the
forms; however, the parties failed to redact the words "assault"
and "assailant" in several places.
Sections of SANE forms 2A and 2B ask the examiner to check
boxes, based on the patient's report or the examiner's physical
findings, under the category "weapon/force used." On both forms
the nurse checked the box for "hold down/body weight." Form 2B
included a space for additional description, where the nurse
wrote "woke to person on top." Regarding this section of the
form, the prosecutor asked the nurse, "What, if anything, did
[the victim] describe?" The nurse answered, "[She] described
being held down."
Discussion. 1. Failure to redact. The juvenile claims
that it was reversible error to admit the SANE forms in evidence
without redacting the words "assault" and "assailant." See
Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). The
Commonwealth agrees. The parties disagree, however, as to
2 whether the juvenile objected and, accordingly, the standard of
review.
The juvenile's counsel objected when the Commonwealth
requested that the SANE forms be marked as an exhibit. It is
not clear what the objection was. It appears that counsel
objected to only one portion of the exhibit, and that the
objection had to do with content that was unrelated to medical
treatment.1 "Because the [juvenile's] objections at trial went
to the substance of the victim's . . . statements [on the
forms], and the error here stemmed not from admission of those
statements, but rather from the failure to redact the language
of [the form] itself, we review for substantial risk of
miscarriage of justice." Dargon, 457 Mass. at 397.
We discern no such risk, because we are confident that in
the context of the entire trial, the failure to redact did not
materially influence the verdict. See id. at 397-398. See
Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). The case
turned on whether the victim consented to the juvenile's
indecent touching and penetrating her. She testified that she
woke from a heavy sleep and felt the juvenile's penis in her
vagina. He testified that the victim was awake and willing when
1 Indeed, in his brief the juvenile states that he "objected to the forms coming in that do not go to treatment but to evidence collection."
3 he inserted his finger in her vagina and licked her vagina and
between her buttocks, and that she did not object until he
touched the tip of his penis to her "general butt area." In his
statements to his friends, however, he said he thought he had
"raped" the victim (although he claimed at trial that he "didn't
have a value of what that word actually meant in that time" and
that "[t]he word meant nothing at the time"). His oral and
written statements to the police suggested that the victim was
asleep and unresponsive. In closing argument, the prosecutor
focused on the testimony of the victim, of the victim's and
juvenile's friends, and on the juvenile's admissions. The
prosecutor mentioned the SANE report only once, in reference to
the tearing and bleeding of the victim's hymen. See Dargon, 457
Mass. at 398 (in closing argument prosecutor referenced only
admissible portions of SANE forms). We are confident that the
preprinted references to "assault" and "assailant" on the forms
had little, if any, influence on the jury's assessment of the
victim's lack of consent.
2. Descriptions of victim being held down. The checkmarks
on the forms for "hold down/body weight" and the victim's
description that she "woke to person on top" were properly
admitted under the medical records exception to the hearsay
rule. See G. L. c. 233, § 79; Mass. G. Evid. § 803(6)(B)
(2023). "The statute has long been construed to permit the
4 admission of a record that relates directly and primarily to the
treatment and medical history of the patient, 'even though
incidentally the facts recorded may have some bearing on the
question of liability.'" Commonwealth v. Torres, 479 Mass. 641,
653 (2018), quoting Commonwealth v. Dube, 413 Mass. 570, 573
(1992). The exception extends to "physical observations from
which inculpatory inferences flow" (quotation and citation
omitted). Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).
See, e.g., Commonwealth v. McGann, 484 Mass. 312, 319-320 (2020)
(statement "repeatedly beat him about the head/face and bit him
several times in arms and also came after him with steak knife"
in victim's medical records properly admitted). The fact that
SANE records have the "dual purpose" of medical treatment and
criminal investigation does not make them inadmissible. See
Dargon, 457 Mass. at 393, 395-396.
The defendant argues, for the first time on appeal, that
these notations of the forms are nonetheless inadmissible under
a free-standing notion of "reliability" that he derives from
Bouchie v. Murray, 376 Mass. 524, 528 (1978) ("the medical
records exception statute makes admissible only those portions
of records relating to treatment and medical history which
possess the characteristics justifying the presumption of
reliability"). While the medical records exception does not
"render[] admissible all the contents of hospital records," id.,
5 as the court explained in Dargon, 457 Mass. at 396, a patient's
own statements to a nurse consulted for treatment and recorded
in treatment records are considered presumptively reliable. The
juvenile has not rebutted that presumption. While the "hold
down/body weight" box might be an imperfect classification for
the victim's statements, the more precise notation "woke to
person on top" is perfectly consistent with the victim's trial
testimony. There was no error in admitting these notations on
the SANE forms.
The nurse's testimony that the victim "described being held
down," however, is problematic. To the extent the nurse was
characterizing the exhibit in evidence, the support for this
testimony is weak, and to the extent the nurse was relating a
statement of the victim that was not recorded on the exhibit, a
hearsay objection might have been warranted. But the juvenile's
counsel did not object, whereas counsel did object moments later
-- and her objection was sustained -- when the nurse was asked
whether the victim described penetration of her vagina.
Assuming without deciding that the testimony that the victim
"described being held down" was admitted in error, we do not
discern a substantial risk of a miscarriage of justice. The
testimony was fleeting, the prosecutor did not refer to it in
closing, and the lack of an objection was an indication that it
6 was not particularly prejudicial. See Commonwealth v. Vallejo,
455 Mass. 72, 81-82 (2009).
3. Dargon instruction. "When a SANE kit is introduced as
an exhibit or when testimony is offered concerning the SANE
examination process," and an explanatory instruction is
requested, a judge "should explain to the jury that SANE
examinations occur when there is an allegation or complaint of
sexual assault; and the fact that the examination occurred, by
itself, does not constitute evidence or any indication that the
complaint is valid." Dargon, 457 Mass. at 398 n.13. The
juvenile specifically requested this instruction, but the
Commonwealth opposed it and the judge denied it. The
Commonwealth argued that because the nurse's testimony had been
presented in a sanitized form, using the term "medical forensic
examination" instead of "SANE," the jurors would be confused by
an instruction regarding a SANE examination. The juvenile
responded, sensibly, that the language of the instruction could
be altered accordingly. We see no prejudice to the Commonwealth
in providing the prophylactic instruction mandated by Dargon,
and it could easily have been tailored to fit the circumstances.
Because the instruction should have been given, we must
determine whether its omission was prejudicial. See
Commonwealth v. Tillis, 486 Mass. 497, 503 (2020). "An error is
not prejudicial only if the Commonwealth can show with fair
7 assurance . . . that the judgment was not substantially swayed
by it" (quotations and citations omitted). Commonwealth v.
Martin, 484 Mass. 634, 647 (2020). "We conclude, with fair
assurance, that the defendant suffered no prejudice from this
error." Id.
Although not a good reason to oppose the instruction, the
Commonwealth carefully elicited the nurse's testimony in a way
that avoided the impression "that every person who complains of
sexual assault has in fact been assaulted," Dargon, 457 Mass. at
398 n.13, which is the harm that the Dargon instruction is
designed to alleviate. Not only was the SANE testimony
presented in a sanitized form, the Commonwealth did not dwell on
it. As previously discussed, the case centered on the
credibility of the witnesses who were present before, during,
and after the crimes, and we are confident that any inference
the jury might have drawn from the fact that the victim
underwent a "forensic medical examination" -- or from any error
8 surrounding the testimonial and documentary evidence concerning
the examination -- did not substantially sway the verdicts.
Adjudications of delinquency affirmed.
By the Court (Milkey, Massing & Neyman, JJ.2),
Assistant Clerk
Entered: March 19, 2024.
2 The panelists are listed in order of seniority.