MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant in 1993 of indecent assault and battery on a child under the age of fourteen.
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In June 2019 the defendant filed a motion to vacate his conviction, raising a number of related arguments founded on the factual premise that he was a juvenile at the time of the offense. The defendant further argued that trial counsel was ineffective for failing to file an appeal. A Superior Court judge, who was not the trial judge, denied the motion without an evidentiary hearing, and the defendant appeals. We affirm.
At trial the victim testified that the defendant, who is her uncle, sexually assaulted her “[a]lmost every single day” from when she was about six years old until she was ten years old. The defendant testified on his own behalf and admitted that he had kissed the victim and had touched her bare chest and vaginal area. He claimed, however, that he was only fifteen years old when this occurred and that “it probably only happened once.”
The defendant now argues that his conviction should be vacated on jurisdictional grounds because the evidence, particularly his own testimony, “strongly suggests that the defendant was convicted for conduct that occurred when he was a minor.” We disagree. At the time of trial, the Superior Court had jurisdiction over defendants who were seventeen years of age or older when they committed the charged offense. See Watts v. Commonwealth, 468 Mass. 49, 59-60 (2014). The indictment here charged the defendant with committing indecent assault and battery on a child on “divers dates and at divers times from on or about [May 1, 1984], to on or about [May 31, 1987].” The defendant was born on February 3, 1967, which means he had attained the age of seventeen by May 1, 1984. Jurisdiction in the Superior Court was therefore proper. Even though there was evidence that the defendant committed additional assaults when he was a juvenile, that is not relevant to the jurisdictional issue because the indictment was limited to conduct that occurred after he turned seventeen years old.
Relatedly, we reject the defendants suggestion that there was a fatal variance between the dates of offense specified in the indictment and the evidence at trial. The victims testimony that the abuse continued until she was ten years old was proof of the crime as charged; given the victims birth date of May 4, 1977, this put the date of offense within the time period stated in the indictment. That the defendant chose to testify and admit to assaults he committed as a juvenile did not create a variance, let alone a material one. Cf. Commonwealth v. Ramos, 47 Mass. App. Ct. 792, 797 (1999) (victims testimony sufficient to prove that rapes occurred after the defendant turned seventeen years old).
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The defendant next argues that the trial judge erred in denying his request to instruct the jury that “if they find he committed this offense when he was [fifteen], hes not guilty.” “The judge, however, was not required to instruct the jury in the terms urged by the defendant, so long as he covered adequately the substance of the requested instructions.” Commonwealth v. Lowe, 391 Mass. 97, 109, cert. denied, 469 U.S. 840 (1984). The trial judge did so here by instructing as follows: “The indictments ․ use the phrase that on divers[ ] dates the Commonwealth alleges that certain things took place, and the Commonwealth must prove beyond a reasonable doubt that the offense charged within the indictment occurred within that time, and within that time period the defendant committed at least one act constituting all of the elements of the crime as charged.” This effectively told the jury that they could not convict the defendant unless he was at least seventeen years old when he committed the offense.
In a similar vein, the defendant argues that the trial judge erred by prohibiting defense counsel from arguing in closing that the defendant was not guilty if the jury found he was only fifteen years old when he committed the offense. It is apparent from the extended sidebar discussion between the trial judge and the attorneys that the defendants request for permission to raise this argument was tied to his request for the jury instruction; indeed, the trial judge and defense counsel agreed that the argument was not proper, and could confuse the jury, if the trial judge did not give the requested instruction. Thus, once the trial judge rejected the instruction, he was also within his discretion to restrict the argument, while at the same time allowing defense counsel to “argu[e] age on the issue of [the victims] credibility.” See Commonwealth v. Montecalvo, 367 Mass. 46, 56 (1975). Furthermore, the defendant has not shown that he was prejudiced by the restriction where, as discussed above, the trial judges instruction necessarily required the jury to find that the defendant was at least seventeen years old at the time of the offense. We presume that the jury followed the instruction. See Commonwealth v. Silva, 482 Mass. 275, 290 (2019).
Finally, we reject the defendants claim that defense counsel was ineffective for failing to file an appeal. The motion judge did not credit the defendants affidavit -- in which the defendant implied that he had instructed counsel to file an appeal -- observing that the defendant failed to explain his twenty-six-year delay in pursuing his claim. The motion judge further observed, quoting Commonwealth v. Petetabella, 459 Mass. 177, 182 (2011), that it was unlikely that counsel would have disregarded an instruction to appeal, given that he “was diligent in every aspect of his representation of the defendant at trial.” The defendant has not shown that the motion judge abused his discretion in discrediting the affidavit. See Commonwealth v. Dubois, 451 Mass. 20, 29 (2008). Nor has the defendant shown why “postconviction attack on the judgment through” his current motion to vacate does “not fully accord[ ] with due process as a remedy for [his] frustrated right of appeal.” Commonwealth v. Cowie, 404 Mass. 119, 122-123 (1989).
Order denying motion to vacate conviction affirmed.
FOOTNOTES
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. The jury acquitted the defendant of rape of a child.
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. Because there was no variance, it is immaterial whether the indictment charged a continuing offense, as the defendant claims. In any event we see no merit to the claim. “Merely because an indictment alleges that the defendants criminal activity took place within a period between two dates does not mean that the crime charged is a continuing offense. A continuing offense is an indivisible, unlawful general practice that exists throughout the time span alleged.” Commonwealth v. Megna, 59 Mass. App. Ct. 511, 513 (2003). Here, the defendant was charged with the “discrete” crime of indecent assault and battery on a child. Id. at 514.