MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the defendant, Aaron Christopher, was convicted of indecent assault and battery. On appeal, he contends that the judge erred by: (1) admitting in evidence the content of a text message sent by the defendant to the victim; (2) eliciting improper “vouching” testimony; and (3) excluding evidence of a prior sexual relationship between the victim and the defendant. We affirm.
Background. On November 10, 2014, around 1 a.m., the victim, who was in her early twenties, went to her apartment in Revere after socializing at some restaurants in Boston. She lived with two roommates at the time, including the defendant, who was the primary leaseholder of the apartment. The defendant is twenty-one years older than the victim. Although the victim had consumed some drinks, the alcohol did not impact her memory of the events that transpired.
Upon entering the apartment, the victim encountered the defendant, who asked if she “wanted to smoke” marijuana.
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She declined at first, but then agreed to smoke “maybe just one.” She went to the defendants bedroom to wait. The defendant entered the bedroom, approached the victim, and “started to lean over to [her].” He moved toward her until she was on her back and his torso was on top of her. He lifted her shirt up, “lifted up [her] bra” and exposed her breasts, “ran his hands over [her] breast,” kissed her, and “started like kissing and doing things with his tongue on [her] breast.” When the touching started, the victim said, “Not now. Maybe later. I really dont want to.”
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She started crying and said, “No, please.” While the defendant kissed her body, the victim asked him to stop “[e]very once in a while. Then [she] just kind of froze.” The defendant also ran his hands underneath her belly and started to unbutton her pants. At this point, the defendants weight was no longer on her body and the victim was able to move away from him and leave the room.
From her own bedroom, the victim “got [her] cellphone” and called a friend, her mother, and 911. Police officers arrived two to three minutes later. The victim spoke with Sergeant Patricia Carey who saw that the victim was shaking, crying, and very upset. During their conversation, Sergeant Carey noticed the victims clothing. The victim “pulled up her top” such that Sergeant Carey saw that “her bra had been pushed up so that her right breast was exposed.” Sergeant Carey also noticed that the top button of the victims jeans “was undone.” Sergeant Carey did not believe that the victim was intoxicated.
As part of the investigation, one of the police officers took the victims cell phone. She “got it back the next night,” and saw a message from the defendant that said, “Im so sorry, but youre just so hot.” The defense centered on credibility. The defendant testified, inter alia, that the victim feigned being drunk; that the victim “pulled [him] down on top of her”; that she kissed him and he kissed her back; and that she never said “no” or objected while he lifted her shirt and bra and kissed her breast. He further testified that when he reached down to unbutton her jeans, she “grabbed his wrists” to stop him, and at that point he stopped.
Discussion. During trial, the prosecutor asked the victim whether, upon receiving “[her] phone back” from the police, she saw “any messages from the defendant?” The victim replied that she had. The Commonwealth asked, “what did that message say?” The defendant objected based on hearsay. The Commonwealth then laid a foundation establishing that when the victim and the defendant lived together, they communicated with one another via cell phone and texts; that she knew and recognized the defendants number; that she had saved the defendants number on her cell phone; and that upon receiving her cell phone from the police, she saw that she had received a text message from the “phone number that [she] associated with the defendant.” The Commonwealth then asked again about the content of the text message and the victim responded, without objection from the defendant, “[i]t said, ‘Im so sorry, but youre just so hot.’ ”
The defendant now argues that the judge erred in allowing the victim to testify to the content of his text message because the Commonwealth did not timely disclose that evidence, the text message was not sufficiently authenticated, and the Commonwealth violated the best evidence rule. The claim is unavailing for several reasons.
First, the defendant objected solely on the ground of hearsay.
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He did not object on the basis of a late disclosure violation under Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), insufficient authentication, or violation of the best evidence rule. Accordingly, our review is limited to whether there was error, and if so, whether such error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here there was no error. The Commonwealth disclosed the evidence of the “apology text” to the defendant immediately after it became aware of its existence and before trial.
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The Commonwealth also laid a foundation, with confirming circumstances sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant sent the text. See Commonwealth v. Castro, 99 Mass. App. Ct. 502, 510 (2021); Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019). See also Commonwealth v. Purdy, 459 Mass. 442, 450 (2011); Mass. G. Evid. § 901(b)(11) (2022). We likewise discern no violation of the best evidence rule. See generally Mass. G. Evid. § 1007 (2022). In short, the introduction of the content of the text message was not error and, even assuming otherwise, did not create a substantial risk of a miscarriage of justice.
Next, the defendant contends that the judge erred in eliciting Sergeant Careys view that the victim did not appear to be acting or faking her emotional state when they spoke after the sexual assault. Here again, the defendant did not object to this testimony and thus we review to see whether any alleged error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. Even assuming that the judge should not have elicited Sergeant Careys testimony in this regard, we discern no substantial risk of a miscarriage of justice. In this jury-waived trial, the judge had every opportunity to observe the witnesses’ testimony and make credibility determinations.
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The brief alleged error was neither of the nature nor scope of that which has constituted reversible error in other cases. See, e.g., Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985); Commonwealth v. Collett, 17 Mass. App. Ct. 913, 914 (1983); Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402 (1983).
Finally, the defendant argues that the judge erred in precluding evidence that he and the victim had consensually hugged and kissed on a prior occasion. We disagree. The judge heard the defendants proffers, conducted an appropriate in camera hearing, and concluded that any marginal relevance of the alleged prior encounter was outweighed by the prejudicial effect. The judge followed G. L. c. 233, § 21B, and our case law interpreting that statute. This was a classic discretionary call, made after full consideration of the parties’ arguments through the proper procedural protocols. We discern no abuse of discretion and no evidentiary or constitutional violations in the judges ruling. See generally Commonwealth v. Shaw, 29 Mass. App. Ct. 39, 42-44 (1990). Compare Commonwealth v. Polk, 462 Mass. 23, 38-39 (2012).
Judgment affirmed.
FOOTNOTES
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. The victim and the defendant had smoked marijuana together on a prior occasion.
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. The victim explained that she told the defendant “[m]aybe later” because she “didnt want to make him mad.” She had no intention of later consenting to sexual contact.
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. The content of the text constituted an admission by the defendant and therefore was not hearsay. See Mass. G. Evid. § 801(d)(2) (2022). Also, for the reasons stated herein, the authentication contention on appeal is unavailing. Accordingly, the judge did not err in overruling the hearsay objection.
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. The defendant neglects to note that shortly before trial, he sought to admit into evidence the content of texts between himself and the victim, ostensibly to show prior “flirting” between the two. The defendant provided the Commonwealth with screenshots of the texts two days prior to trial. At that time, the Commonwealth presented them to the victim, who, for the first time, made them aware of the apology text. The Commonwealth promptly memorialized the victims account of the apology text and notified the defendant. Having raised the issue of text communications before trial, it could hardly have surprised the defendant -- in the context of rule 14 -- when the Commonwealth likewise sought to introduce at trial the content of a further text message between the two.
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. The defendant testified at trial.