Commonwealth v. Robertson (Lawyers Weekly No. 11-115-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1084 Appeals Court COMMONWEALTH vs. KENVILLE ROBERTSON. No. 12-P-1084. Norfolk. March 4, 2015. – August 14, 2015. Present: Trainor, Wolohojian, & Carhart, JJ. Rape. Evidence, Prior misconduct, Pattern of conduct. Practice, Criminal, New trial, Assistance of counsel. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Indictments found and returned in the Superior Court Department on March 17, 2010. A motion in limine was heard by Mitchell H. Kaplan, J.; the cases were tried before Robert C. Cosgrove, J., and a motion for a new trial was heard by him. Bernard Grossberg for the defendant. Marguerite T. Grant, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from his convictions of three counts of rape of a child with force, three counts of aggravated rape of a child, three counts of indecent assault and battery on a child under fourteen, and assault with intent to rape a child, arguing that (1) the motion judge erred in allowing the Commonwealth’s motion in limine to present prior bad act evidence, (2) the trial judge erred in allowing prior bad act evidence as evidence at the trial and in his instructions to the jury in this regard, and (3) the trial judge erred in denying his motion for new trial. We affirm. Background. The jury were presented with the following evidence at trial. The defendant is the biological father of the younger brother of the victim, N.M. Although the defendant did not live with N.M., he had a key to her house and visited often. N.M. called the defendant, “Dad,” and he provided for her financially.[1] In 2004, when N.M. was eight years old, the defendant began sexually abusing her.[2] The abuse occurred while N.M. and the defendant slept in the same bed, along with N.M.’s mother and brother. N.M. testified that on numerous occasions the defendant performed oral sex on her, engaged in vaginal intercourse, forced her to touch his penis, and touched her breasts, vagina, and buttocks. The defendant warned N.M. that if she reported the abuse “the police would get involved,” and N.M. believed that meant she would be taken away from her family. The abuse continued until N.M. was thirteen years old. The defendant’s biological daughter, J.R., also testified at trial.[3] She stated that from around […]