MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant, Steven Jaiman, was convicted of five counts of aggravated rape of a child, G. L. c. 265, § 23A; two counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and one count of posing a child in an act that depicts sexual conduct, G. L. c. 272, § 29A (b).
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The victims, Andi and Kali,
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were between eleven and twelve years old. The defendant appeals. We affirm.
Discussion. 1. Admissibility of evidence that Andi was sexually assaulted by a third party. Prior to this defendants trial, a jury convicted a relative of Andis mother (hereinafter, the third party) of sexually assaulting Andi.
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The defendant argues that the exclusion of the third partys sexual assault of Andi deprived the defendant of his right to mount a full defense and the error was not harmless beyond a reasonable doubt. We address each of the defendants arguments in turn.
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a. The victims’ knowledge of sex acts. The defendant first argues that the third partys sexual assault of Andi should have been admitted to provide an explanation for the victims’ knowledge of sex acts. We disagree. The protections of the rape shield statute, G. L. c. 233, § 21B, “apply to child victims as well as to adults.” Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987). “Unless the defendant is able to show how the specific details of a previous incident are relevant, he will not be allowed to question the victim about prior incidents” of sexual abuse of the victim.
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Id. An exception to the rape shield statute allows the admission of a childs previous victimization to rebut an inference that the childs “extraordinary knowledge” about sexual matters could only have been acquired through the defendants conduct. See id. at 814-815.
The record does not support the defendants claim that Andi told Kali about the third party sexually assaulting her before Kali disclosed the assault by the defendant. The defendant relies on mere speculation in suggesting that Andi and Kali, who are cousins, shared knowledge of their assaults with each other. See Commonwealth v. Hynes, 40 Mass. App. Ct. 927, 929 (1996), quoting Commonwealth v. Thevenin, 33 Mass. App. Ct. 588, 592 (1992) (defendants intended use of evidence must be “based on more than vague hope or mere speculation”). Further, the victims’ knowledge of oral and anal sex, including Andis testimony that the defendant told her to “move her head the way he wanted” and not to use her teeth, and Kalis testimony that the defendant told her she had “soft lips” and was “better than her aunt,” did not demonstrate “extraordinary knowledge,” especially when the victims were seventeen at the time of trial. See Commonwealth v. Rathburn, 26 Mass. App. Ct. 699, 707 (1988) (child victim must “display[ ] knowledge of sexual matters beyond ․ her years” before evidence of past sexual abuse is admitted). The defendant has failed to demonstrate that the trial judge abused his discretion.
b. Relevance to Kalis testimony. The defendant argues that the third partys sexual assault of Andi was relevant to Kalis testimony because it suggested a “model” for Kalis account of how the defendant had assaulted her. Again, there was no evidence that suggested Kali knew about the third partys assault of Andi before Kali reported that the defendant had assaulted her. See Hynes, 40 Mass. App. Ct. at 929, quoting Thevenin, 33 Mass. App. Ct. at 592. In any event, Kalis account of the defendant coercing her to perform oral sex before attempting to perform anal sex on her was not so distinctive that it suggested Kali was drawing on knowledge of Andis assault by the third party. There were no unique details of Andis assault that were similar to Kalis account of the defendants sexual assaults against her beyond the acts of rape themselves.
The defendant also suggests that the third partys sexual assault of Andi was relevant to his theory that Kali had a motive to fabricate the allegations against the defendant. See Commonwealth v. Joyce, 382 Mass. 222, 225, 231, n.10 (1981). A defendant is required to “make a plausible showing that the circumstances existed on which the alleged bias [or motive to fabricate] is based.” Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995). “[W]hether the evidence demonstrates bias ․ falls within the discretion of the trial judge.” Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993). At trial, the defendant was permitted to present testimony that Kali had a motive to fabricate her allegations because the defendant had threatened to tell her mother about a prior sexual experience between Kali and one of her cousins. The defendant has failed to establish how a third-party assault on Andi contributed to Kalis alleged motive to discredit the defendant. The defendant has failed to demonstrate that the trial judge abused his discretion.
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c. Third-party culprit defense. The evidence admitted at trial included a photograph of Kali with an adult penis in her mouth. For the first time on appeal, the defendant argues that the third partys sexual assault of Andi should have been admitted to offer a third-party culprit for the photograph of the penis in Kalis mouth. This argument is waived. See Bettencourt, 447 Mass. at 633. In any event, the argument fails.
Because the admissibility of third-party culprit evidence is an issue of “constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently.” Commonwealth v. Moore, 480 Mass. 799, 807 (2018), quoting Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004). “[I]t is well established that a defendant should have the right to show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the crime” (quotation and citation omitted). Commonwealth v. Keizer, 377 Mass. 264, 267 (1979). “The evidence should not be too remote in time or too weak in probative quality, and it should be closely related to the facts of the case against the defendant.” Commonwealth v. Graziano, 368 Mass. 325, 329-330 (1975). “The trial judges decision on whether to admit such evidence shall not be set aside unless justice requires a different result” (quotation and citation omitted). Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 508-509 (1998). This is not such a case.
There is no evidence here that Kali ever made any allegations against the third party or even knew him. Moreover, the evidence indicated that the photos were taken on the defendants cellular telephone on a date he was using it. Without any evidence suggesting that the third party, and not the defendant, assaulted Kali, the admission of the third partys assault of Andi was too remote to be admitted as third-party culprit evidence involving Kali.
d. Prejudice. The defendant argues that he was unfairly prejudiced by the exclusion of the third-party assault evidence because his anticipated use of that evidence to rebut Kalis allegations was the only reason he consented to a joint trial. We disagree. The defendant could have, but did not, file a motion to sever after the trial judge excluded evidence of the third partys sexual assault of Andi. In addition, there was evidence of a common scheme here. The defendant, who had an uncle-like relationship with both victims, raped both victims in the same home by awakening them in the night and moving them to a different location to do so. Finally, the defendant has failed to demonstrate he was prejudiced by the joinder where it was clear from the not guilty verdicts on two serious charges that the jury had carefully considered the evidence with respect to each crime charged.
2. Expert testimony. We review the admission of expert testimony for abuse of discretion. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004).
a. Dr. Stephanie Block. The defendant argues that the trial judge should not have admitted the expert testimony of Dr. Stephanie Block about the timing of disclosure of sexual abuse complaints by children and the functioning of human memory. The defendant maintains that Dr. Blocks testimony constituted impermissible vouching for Andi and Kali.
“A trial judge has broad discretion with respect to the admission of expert testimony.” Commonwealth v. Dockham, 405 Mass. 618, 628 (1989). “Expert testimony is required when the testimony concerns matters beyond the common knowledge of the jurors and will aid jurors in reaching a decision.” Commonwealth v. Berendson, 73 Mass. App. Ct. 395, 399-400 (2008), citing Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). See Commonwealth v. Hinds, 487 Mass. 212, 220-222 (2021) (discussing application of Daubert-Lanigan 9 test to “soft” sciences, which “base their findings largely on nonrepeatable observations”). See generally Mass. G. Evid. § 702 (2021).
We are unpersuaded by the defendants contention that Dr. Blocks testimony went beyond what Dockham and Commonwealth v. Montanino, 409 Mass. 500, 504 (1991), allow.
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“Expert testimony that abused children often delay reporting the abuse, a familiar and permitted proposition at least since Dockham, informs the jury that the victims failure to disclose in a timely fashion does not necessarily exonerate the defendant without suggesting that the particular child witness in the case was or was not abused.” Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 375-376 (2003). Here, Dr. Blocks testimony explained the various ways children disclose sexual abuse, highlighting that delayed disclosure is common.
Furthermore, with respect to expert testimony on the process of memory, the Supreme Judicial Court has held that, “[p]roperly limited, such expert testimony does not intrude on the jurys function of determining the credibility of witnesses.” Commonwealth v. Polk, 462 Mass. 23, 36 (2012). Dr. Blocks testimony did not intrude on the jurys role of determining credibility or impermissibly vouch for Andi or Kali. Accordingly, we discern no abuse of discretion in the judges ruling to admit Dr. Blocks testimony.
b. Dr. Alice Newton. The defendant argues that the judge should not have admitted the expert testimony of Dr. Alice Newton, a pediatrician with a specialization in child-abuse pediatrics, about the medical examination of children who complain of sexual assault and the deterioration or absence of medical evidence over time. The defendant maintains that Dr. Newtons testimony was irrelevant given that neither Andi nor Kali underwent a sexual assault medical examination after making their first complaints.
“[A] medical expert may be able to assist the jury by informing them that the absence of evidence of physical injury ‘does not necessarily lead to the medical conclusion that the child was not abused,’ ․ because ‘[t]he jury may be under the mistaken understanding that certain types of sexual abuse always or nearly always causes physical injury or scarring in the victim.’ ” Commonwealth v. Alvarez, 480 Mass. 299, 314 (2018), quoting Commonwealth v. Federico, 425 Mass. 844, 851 & n.13 (1997). We conclude that the judge did not abuse her discretion in admitting Dr. Newtons testimony because the testimony helped explain how the passage of time would dictate medical staffs decisions regarding evidence collection and why a lack of trauma would not be inconsistent with a claim of rape. Moreover, the testimony stayed within proper bounds. Dr. Newton stated that she had never treated nor met Andi or Kali Contrast Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 667-668 (2011) (experts testimony based on victims statements to her could be “construed as impliedly supporting the truthfulness” of victims sexual abuse allegation (citation omitted)); Commonwealth v. Colin C., 419 Mass. 54, 61 (1994) (improper vouching where expert testified that victim was sexually abused “based in large part on [the victims] statements to her”). Dr. Newton also did not comment on either victims credibility or compare the victims’ characteristics to the general characteristics of sexual abuse victims. See Federico, 425 Mass. at 849-852.
Judgments affirmed.
FOOTNOTES
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. The jury acquitted the defendant of one count of rape and one count of posing a child in an act that depicts sexual conduct.
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. We use pseudonyms to refer to both victims.
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. A jury convicted the third party of indecent assault and battery on a child under the age of fourteen and acquitted him of one count of rape of a child. The prosecutor entered a nolle prosequi on two additional indictments against the third party for rape of a child.
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. Kali first disclosed the sexual assaults by the defendant to her neighbor. Thereafter, Kalis mother learned about the sexual assaults and informed Andis mother, who in turn asked Andi whether “anybody had done anything or touched her.” Andi then disclosed that the defendant had sexually assaulted her.
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. The record does not establish whether the third-party assault occurred before the incidents at issue in this case but that assault did occur before the reports of the incidents in this case.
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. Relatedly, the defendant argues that the exclusion of the evidence that Andi was assaulted by a third party impaired his ability to cross-examine adverse witnesses, Andi and Kali, in violation of the Sixth Amendment to the United States Constitution. “The right to cross-examine is not absolute, but is subject to the judges broad discretion.” Commonwealth v. Lucien, 440 Mass. 658, 663 (2004). Here, there was no abuse of discretion in excluding another individuals conviction for an assault on a child where the defendant failed to meet the evidentiary requirements for admission. See Michigan v. Lucas, 500 U.S. 145, 151-152 (1991) (exclusion of evidence of victims past sexual conduct based on defendants failure to meet requirements of rape shield statute does not per se run afoul of the confrontation clause).
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. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
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. The defendant seeks to preserve an argument that the Supreme Judicial Court should overrule Dockham. “[W]e have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.” Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).