Posts tagged "Olmande"

Commonwealth v. Olmande (Lawyers Weekly No. 11-110-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       12‑P‑1638                                       Appeals Court   COMMONWEALTH  vs.  FRITZ OLMANDE.     No. 12‑P‑1638. Suffolk.     April 5, 2013.  ‑  September 12, 2013. Present:  Vuono, Carhart, & Agnes, JJ.   Rape.  Indecent Assault and Battery.  Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense.       Indictments found and returned in the Superior Court Department on November 18, 2009.   The cases were tried before Frank M. Gaziano, J.     Adriana Contartese for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth.     CARHART, J.  After a Superior Court jury trial, the defendant was convicted of four counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen years.[1]  On appeal, he alleges that the prosecutor’s closing argument deprived him of a fair trial; the evidence was insufficient to support a conviction of one of the charges of rape of a child; and the judge erred by not instructing the jury, sua sponte, on the lesser included offense of indecent assault and battery in connection with that rape of a child charge.  We affirm. Background.  The victim in this case, whom we shall call Jenna, was eighteen years old at the time of trial.  The defendant was the boyfriend of Jenna’s grandmother, with whom Jenna spent much of her childhood.  At trial, Jenna testified that the defendant sexually assaulted her on numerous occasions and in various locations, from the time she was four years old until she was eight or nine years old. One of those locations was the home of Jenna’s aunt.  On one occasion while Jenna was visiting, her aunt noticed that Jenna’s underwear appeared inconsistent with what a child’s underwear of Jenna’s age should look like; rather, her aunt thought they appeared more consistent with the underwear of a sexually active adult.  When asked by her aunt if anyone was “messing with her,” Jenna stated, “No.” Jenna testified that she disclosed the sexual assaults to her best friend, Teresa, when Jenna was in sixth grade.  Although she could not recall the exact words she used to describe the assaults, Jenna testified that she was “feeling some type of weight at the time and . . . needed somebody to talk to.”  Jenna testified that she told Teresa the defendant “was having sex with […]

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Posted by Massachusetts Legal Resources - September 12, 2013 at 3:50 pm

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