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-247
COMMONWEALTH
vs.
LAWRENCE TRAHAN, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of
aggravated rape of a child, G. L. c. 265, § 23A (a), and
indecent assault and battery on a child, G. L. c. 265, § 13B. 1
The defendant contends that the evidence was insufficient as to
the aggravated rape charge and that the prosecutor's closing
argument was improper. We affirm.
Background. With respect to our analysis of the
defendant's argument regarding the sufficiency of the evidence,
we summarize the evidence in the light most favorable to the
Commonwealth, reserving some facts for the discussion of
1 He was acquitted of a second count of aggravated rape of a child. specific issues. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). At the time of the touching and rape, the
victim was eight or nine years old. The defendant was dating
the victim's mother and living with them both. The victim, who
was thirteen years old at the time of trial, testified that the
defendant touched her naked breasts with his hands and placed
his penis inside her anus. When touching her breasts, the
defendant would tell the victim, "[D]on't say anything and be
quiet." On another occasion, after being vaginally raped, the
defendant told the victim, "[D]on't tell anyone." 2
The defendant testified and denied the allegations of rape
and indecent assault and battery. His defense was that the
victim lacked credibility and falsified the allegations because
she wanted to live with her father who had a nicer home and more
resources than her mother and the defendant. Defense counsel
extensively cross-examined the victim about her prior
inconsistent statements and how she received gifts from her aunt
to talk about the defendant.
Discussion. 1. Sufficiency of the evidence. The
defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and again at the close of all
the evidence. Both motions were denied.
2 The defendant was not charged with the alleged vaginal rape.
2 We review the denial of a motion for a required finding of
not guilty "to determine 'whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.'" Commonwealth v. Tavares, 484 Mass.
650, 655 (2020), quoting Commonwealth v. Cole, 473 Mass. 317,
334 (2015). Where conflicting inferences are possible, it is
for the fact finder to determine where the truth lies because
the weight and credibility of the evidence is wholly within the
province of the fact finder. See Commonwealth v. Platt, 440
Mass. 396, 401 (2003). See also Commonwealth v. Holiday, 349
Mass. 126, 129 (1965) ("It is elementary that the acceptance or
rejection of oral testimony, in whole or part, is within the
exclusive province of the jury").
The defendant argues that the evidence was insufficient
because the victim was "easily influenced by the adults around
her" and much of her testimony was "highly contradictory."
Specifically, the defendant asserts that the victim's trial
testimony "significantly contradicted the statement she gave to
an investigator," and that the sexual assault nurse examiner
found "no evidence of old injuries or any injuries to [the
victim's] anus area." Additionally, on the eve of trial, the
victim disclosed a vaginal rape that she had not previously
reported. In sum, the defendant asserts that the victim
3 "concocted" the allegations so she could receive "money and
prizes" from her aunt and so she could go live with her father
instead of her mother and the defendant.
There is no merit to the defendant's argument that the
evidence was insufficient because the victim's testimony was
"highly contradictory." Despite inconsistencies in the victim's
testimony, the jury could reasonably have believed her account
of the assaults. 3 Moreover, "the jury were free to believe the
[victim]." Commonwealth v. Franceschi, 94 Mass. App. Ct. 602,
606 (2018). "The inconsistencies in the [victim's]
testimony . . . go to [her] credibility and do not affect the
sufficiency of the evidence." Commonwealth v. Ruci, 409 Mass.
94, 97 (1991). See also Commonwealth v. Santos, 100 Mass. App.
Ct. 1, 3 (2021) ("Notwithstanding the defendant's argument to
the contrary, the victim's testimony, as credited by the jury
and evidenced by their verdicts, suffices to support the
defendant's convictions"); Commonwealth v. Melchionno, 29 Mass.
App. Ct. 939, 940 (1990) (despite fact that "some of the
evidence could be characterized as equivocal or contradictory,"
3 We emphasize that a "victim's testimony alone, believed . . . by the jury, [can] suffice[] to support the defendant's convictions." Commonwealth v. Santos, 100 Mass. App. 1, 6 (2021). See also Commonwealth v. Gonsalves, 23 Mass. App. Ct. 184, 185 (1986) ("The victim's account of [rape] was sufficient to overcome the defendant's motion for a required finding of not guilty of rape").
4 victim's testimony along with other evidence was "sufficient to
take the case to the jury").
Here, the jury chose to believe the victim's testimony and
we decline to second guess the jury's determination. See
Commonwealth v. Lake, 410 Mass. 47, 51 (1991). 4
2. Closing argument. The defendant asserts that the
prosecutor impermissibly urged the jury to do their duty by
convicting the defendant when he said,
"When considering all the evidence, looking at what [the victim] told you, how she told you about what happened, look within yourselves, think about those charges and think about all the elements of those charges and how she talked about those charges, and I know that you will reach a just verdict. You will consider all of the evidence. You will not take this lightly because this is something that you've sworn to do. And I know that you will reach a just result."
Because the defendant did not object at trial, we review to
determine whether any error created a substantial risk of a
miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass.
App. Ct. 603, 607 (2013).
4 The defendant alternatively asserts that the Commonwealth's case "significantly eroded" after the defendant presented his case. This argument too lacks merit.
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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-247
COMMONWEALTH
vs.
LAWRENCE TRAHAN, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of
aggravated rape of a child, G. L. c. 265, § 23A (a), and
indecent assault and battery on a child, G. L. c. 265, § 13B. 1
The defendant contends that the evidence was insufficient as to
the aggravated rape charge and that the prosecutor's closing
argument was improper. We affirm.
Background. With respect to our analysis of the
defendant's argument regarding the sufficiency of the evidence,
we summarize the evidence in the light most favorable to the
Commonwealth, reserving some facts for the discussion of
1 He was acquitted of a second count of aggravated rape of a child. specific issues. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). At the time of the touching and rape, the
victim was eight or nine years old. The defendant was dating
the victim's mother and living with them both. The victim, who
was thirteen years old at the time of trial, testified that the
defendant touched her naked breasts with his hands and placed
his penis inside her anus. When touching her breasts, the
defendant would tell the victim, "[D]on't say anything and be
quiet." On another occasion, after being vaginally raped, the
defendant told the victim, "[D]on't tell anyone." 2
The defendant testified and denied the allegations of rape
and indecent assault and battery. His defense was that the
victim lacked credibility and falsified the allegations because
she wanted to live with her father who had a nicer home and more
resources than her mother and the defendant. Defense counsel
extensively cross-examined the victim about her prior
inconsistent statements and how she received gifts from her aunt
to talk about the defendant.
Discussion. 1. Sufficiency of the evidence. The
defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and again at the close of all
the evidence. Both motions were denied.
2 The defendant was not charged with the alleged vaginal rape.
2 We review the denial of a motion for a required finding of
not guilty "to determine 'whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.'" Commonwealth v. Tavares, 484 Mass.
650, 655 (2020), quoting Commonwealth v. Cole, 473 Mass. 317,
334 (2015). Where conflicting inferences are possible, it is
for the fact finder to determine where the truth lies because
the weight and credibility of the evidence is wholly within the
province of the fact finder. See Commonwealth v. Platt, 440
Mass. 396, 401 (2003). See also Commonwealth v. Holiday, 349
Mass. 126, 129 (1965) ("It is elementary that the acceptance or
rejection of oral testimony, in whole or part, is within the
exclusive province of the jury").
The defendant argues that the evidence was insufficient
because the victim was "easily influenced by the adults around
her" and much of her testimony was "highly contradictory."
Specifically, the defendant asserts that the victim's trial
testimony "significantly contradicted the statement she gave to
an investigator," and that the sexual assault nurse examiner
found "no evidence of old injuries or any injuries to [the
victim's] anus area." Additionally, on the eve of trial, the
victim disclosed a vaginal rape that she had not previously
reported. In sum, the defendant asserts that the victim
3 "concocted" the allegations so she could receive "money and
prizes" from her aunt and so she could go live with her father
instead of her mother and the defendant.
There is no merit to the defendant's argument that the
evidence was insufficient because the victim's testimony was
"highly contradictory." Despite inconsistencies in the victim's
testimony, the jury could reasonably have believed her account
of the assaults. 3 Moreover, "the jury were free to believe the
[victim]." Commonwealth v. Franceschi, 94 Mass. App. Ct. 602,
606 (2018). "The inconsistencies in the [victim's]
testimony . . . go to [her] credibility and do not affect the
sufficiency of the evidence." Commonwealth v. Ruci, 409 Mass.
94, 97 (1991). See also Commonwealth v. Santos, 100 Mass. App.
Ct. 1, 3 (2021) ("Notwithstanding the defendant's argument to
the contrary, the victim's testimony, as credited by the jury
and evidenced by their verdicts, suffices to support the
defendant's convictions"); Commonwealth v. Melchionno, 29 Mass.
App. Ct. 939, 940 (1990) (despite fact that "some of the
evidence could be characterized as equivocal or contradictory,"
3 We emphasize that a "victim's testimony alone, believed . . . by the jury, [can] suffice[] to support the defendant's convictions." Commonwealth v. Santos, 100 Mass. App. 1, 6 (2021). See also Commonwealth v. Gonsalves, 23 Mass. App. Ct. 184, 185 (1986) ("The victim's account of [rape] was sufficient to overcome the defendant's motion for a required finding of not guilty of rape").
4 victim's testimony along with other evidence was "sufficient to
take the case to the jury").
Here, the jury chose to believe the victim's testimony and
we decline to second guess the jury's determination. See
Commonwealth v. Lake, 410 Mass. 47, 51 (1991). 4
2. Closing argument. The defendant asserts that the
prosecutor impermissibly urged the jury to do their duty by
convicting the defendant when he said,
"When considering all the evidence, looking at what [the victim] told you, how she told you about what happened, look within yourselves, think about those charges and think about all the elements of those charges and how she talked about those charges, and I know that you will reach a just verdict. You will consider all of the evidence. You will not take this lightly because this is something that you've sworn to do. And I know that you will reach a just result."
Because the defendant did not object at trial, we review to
determine whether any error created a substantial risk of a
miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass.
App. Ct. 603, 607 (2013).
4 The defendant alternatively asserts that the Commonwealth's case "significantly eroded" after the defendant presented his case. This argument too lacks merit. "Deterioration only occurs where the Commonwealth's evidence of necessary elements is later shown to be incredible or conclusively incorrect" -- neither of which was shown in this case (quotation and citation omitted). Commonwealth v. Gomez, 450 Mass. 704, 710 (2008). Additionally, as here, where "the defendant's evidence at trial turned solely on the credibility of his witnesses," the Commonwealth's case cannot deteriorate. Platt, 440 Mass. at 404.
5 "It is improper for a prosecutor to equate a guilty verdict
with justice," Commonwealth v. Francis, 450 Mass. 132, 140
(2007), or to suggest that a jury has a "duty to convict" or to
imply that "proper performance of their function requires a
guilty verdict." Commonwealth v. Deloney, 59 Mass. App. Ct. 47,
53 (2003). See also Commonwealth v. Degro, 432 Mass. 319, 328-
329 (2000) (improper for prosecutor to ask jury "to do your job"
because it implicitly equated jury's job with duty to convict);
Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989) (improper for
prosecutor to urge jury "to convict the defendant in order to
end the victim's nightmares" because it "was the equivalent of
an exhortation that the jury had a duty to the victims to render
verdicts of guilty").
However, a "prosecutor's statement[s] regarding the jury's
duty to determine what happened, and to seek the truth, [are]
not improper." Commonwealth v. Carriere, 470 Mass. 1, 20
(2014). A prosecutor is permitted to remind jurors of their
duty "to consider all the evidence" and "return a just verdict,"
even while urging the jury to convict. Commonwealth v. Lyons,
426 Mass. 466, 471-472 (1998). For instance, in Lyons, supra,
the prosecutor ended his closing with, "I suggest to you there
is one just verdict in this case, ladies and gentlemen: that
the defendant is guilty as charged, that he is guilty of first
degree murder, and that should be and will be your just and true
6 verdict." Id. at 471 n.10. See also Carriere, supra at 19 (not
improper for prosecutor to close with, "Speak the truth.
Thirty-two years is a long time; and now it's time for you,
jurors, to speak the truth.").
The prosecutor's statements in the instant case were not
impermissible. Even if the prosecutor implicitly suggested that
the jury had a "duty," such a reference is proper when the
request is to render a "just" verdict." See Lyons, 426 Mass. at
471-472. Furthermore, the prosecutor permissibly reminded the
jury to "consider all of the evidence." See id. This was not
an attempt by the prosecutor to equate the jury's task with
returning a guilty verdict. We are satisfied that the
prosecutor's statements were simply an attempt to encourage the
jury to review all of the evidence and return a verdict in line
with the truth. See Carriere, 470 Mass. at 20.
In any event, the defendant did not object to the closing
argument at trial and the closing was followed by the judge's
instruction that opening and closing statements are not
evidence. See Carriere, 470 Mass. at 20 ("The absence of an
objection at trial may be viewed as some indication that the
tone [and] manner . . . of the now challenged aspects of the
prosecutor's argument were not unfairly prejudicial" [quotation
and citation omitted]). Accordingly, the prosecutor's statement
did not create a substantial risk of a miscarriage of justice.
7 Judgments affirmed.
By the Court (Blake, Ditkoff & D'Angelo, JJ. 5),
Clerk
Entered: November 4, 2024.
5 The panelists are listed in order of seniority.