Commonwealth v. Lopez (Lawyers Weekly No. 11-065-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1183 Appeals Court COMMONWEALTH vs. AUGUSTO LOPEZ. No. 15-P-1183. Middlesex. March 6, 2017. – May 24, 2017. Present: Carhart, Massing, & Lemire, JJ.[1] Rape. Child Abuse. Enticement of Minor. Evidence, First complaint, Relevancy and materiality, Credibility of witness. Witness, Credibility. Indictments found and returned in the Superior Court Department on May 17, 2012. The cases were tried before Kenneth W. Salinger, J. Jane Larmon White, Committee for Public Counsel Services, for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth. MASSING, J. The defendant was convicted of two counts of rape and abuse of a child under sixteen years of age, aggravated by an age difference of ten years or more, see G. L. c. 265, § 23A(b), two counts of rape of a child by force, G. L. c. 265, § 22A, and one count of enticement of a child, G. L. c. 265, § 26C. The charges arose from a single incident involving a twelve year old girl. The only evidence of the crime was the testimony of the child, who was fifteen years old at the time of trial. At issue is the judge’s decision to admit the testimony of the child’s “therapeutic mentor” that the child lacked the ability to engage in “imagination play.” We conclude that the testimony was improperly admitted to prove that the child was incapable of telling lies and that its use for this purpose was prejudicial, warranting a new trial. Background. a. The crime. When the child was twelve years old she lived next door to the defendant, whom she called “Pachoo.” The defendant lived with Chrissy, who was a friend of the child’s mother, and Chrissy’s three children, two of whom were younger than the child. The defendant was Chrissy’s boy friend and was fifty-five years old at the time. According to the child, one night she went next door to babysit for Chrissy’s two younger children while Chrissy went out to play bingo. The child had just finished using the upstairs bathroom when the defendant called her into Chrissy’s bedroom. The defendant pushed her onto the bed, took off her pants and underwear, got on top of her, and “sticked his dick in [her] vagina.” At some point he stopped, and the child put her underwear and pants back on. Then the defendant […]