Commonwealth v. Oppenheim (Lawyers Weekly No. 11-119-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1673 Appeals Court COMMONWEALTH vs. DAVID OPPENHEIM.[1] No. 12-P-1673. Hampshire. May 9, 2014. – September 24, 2014. Present: Cohen, Sikora, & Agnes, JJ. Evidence, Admissions and confessions, Authentication, Credibility of witness, Cross-examination. Practice, Criminal, Admissions and confessions, Instructions to jury, Reasonable doubt. Jury and Jurors. Witness, Credibility, Cross-examination. Indictments found and returned in the Superior Court Department on July 13, 2010. The cases were tried before Mary-Lou Rup, J. David J. Nathanson (Dan A. Horowitz with him) for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant, David Oppenheim, of five counts of rape of a child. See G. L. c. 265, § 23. He appeals upon multiple grounds, but argues principally that the trial judge should have instructed the jury that, before they could consider a confession contained in an instant message (IM) conversation,[2] the Commonwealth needed to prove beyond a reasonable doubt that the defendant authored the confession. For the following reasons, we affirm. Background. 1. Commonwealth’s evidence. From the Commonwealth’s main witnesses, the jury heard the following evidence. We reserve certain details for discussion of the appellate issues. In 2002, the defendant and his wife founded a community theater enterprise entitled the Pioneer Arts Center of Easthampton (PACE or the center). As the center’s chief executive, the defendant directed musical theater and taught acting classes. The victim, Ann Ross,[3] testified at length. She first attended PACE activities in the fall of 2004 at the age of thirteen. She remained actively involved at the center over the next four years. She first performed volunteer and intern chores, then took acting lessons, and ultimately assumed significant roles in musical productions. In the fall of 2005, when she was fourteen years old, Ross accepted the defendant’s offer of private acting lessons. The classes usually took place in the defendant’s office or the theater. The defendant told Ross that, to improve her acting skill, she needed to experience physical sensations beyond the knowledge of her age group. He rubbed her arms and kissed her lips, face, and neck. He told her that she was “really talented,” that she was “going to go far[,] and that he was going to make sure that that happened.” He instructed her not to tell anybody about their lessons because […]