Commonwealth v. Harry Zenon.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-40

COMMONWEALTH

vs.

HARRY ZENON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in Superior Court, the defendant was

convicted of two counts of rape of a child, in violation of

G. L. c. 265, § 23, and one count of indecent assault and

battery on a child under fourteen years old, in violation of

G. L. c. 265, § 13B. He was acquitted of three counts of rape

of a child aggravated by age difference, in violation of G. L.

c. 265, § 23A. The defendant now appeals from his convictions,

arguing that the first complaint witness's testimony did not

support the victim's testimony and therefore resulted in a

substantial risk of a miscarriage of justice, the victim's

emotional outburst during cross-examination unfairly prejudiced

him, and the Commonwealth's evidence was insufficient to sustain

the convictions because the victim's testimony was allegedly

inconsistent. We affirm.
Background. 1 The victim testified at trial that she first

encountered the defendant, her great uncle, when she was

approximately nine years old while visiting her father, who was

living at the defendant's house in Worcester. The victim

testified that between 2007 and 2011, she (then between the ages

of ten and thirteen) was sexually assaulted and raped numerous

times by the defendant. She also testified that, after she

moved to Florida with her father in 2011, she intermittently

communicated with a friend who had also been part of the Haitian

community in Worcester. The victim ultimately disclosed the

sexual abuse to her friend, who testified at trial as the

Commonwealth's first complaint witness. The friend relayed that

the victim disclosed that she had been touched by her uncle in

an uncomfortable way, which made her sad, depressed, and scared.

The defendant testified that he did not spend much time

alone with the victim and denied that he raped or

inappropriately touched her. Two of the defendant's daughters

testified that he did not spend time alone with the victim, and

the mother of three of the defendant's children testified that

she was not aware of the victim's allegations against the

defendant.

1 We reserve certain facts for later discussion.

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Discussion. 1. First complaint testimony. The defendant

argues that the testimony of the victim's friend as a first

complaint witness resulted in a substantial risk of a

miscarriage of justice, requiring reversal. He argues that

inconsistencies between the testimony of the victim and her

friend undermined the reliability of the victim's testimony, the

gap in time between the sexual assaults and the victim's first

complaint was too long to be credible, and it is implausible

that a child victim subjected to such continuing abuse would

tell a friend with whom the victim communicated only

occasionally before someone in her own family.

The purpose of a first complaint witness is to "refute any

false inference that silence is evidence of a lack of

credibility on the part of rape complainants," and "to give the

jury as complete a picture as possible of how the accusation of

sexual assault first arose." Commonwealth v. King, 445 Mass.

217, 243, 247 (2005). First complaint testimony may be admitted

for the purpose of assisting the jury in "determining whether to

credit the complainant's testimony about the alleged sexual

assault[, but] may not be used to prove the truth of the

allegations." Id. at 219.

The defendant's argument here fails because our case law

"permit[s] some discrepancy between the testimony of the

complainant and the first complaint witness." Commonwealth v.

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Rivera, 83 Mass. App. Ct. 581, 586 (2013). In fact, some

inconsistency "is expected," and it "will often aid the jury in

determining whether the [first] complaint testimony ultimately

supports the complainant's story." King, 445 Mass. at 235.

Thus, while the defendant was entitled during closing argument

to bring any inconsistencies between the victim's and her

friend's testimony to the jury's attention and argue that, as a

result, the victim was not credible, the mere existence of such

inconsistency is not a basis for reversal.

Similarly, the timing of a victim's first complaint "will

not disqualify the evidence, but is a factor the jury may

consider in deciding whether the first complaint testimony

supports the complainant's credibility or reliability." King,

445 Mass. at 219. Furthermore, "there is no absolute rule of

law as to the time within which a sexual assault victim must

make her first complaint" and "cases involving child sexual

abuse constitute a factually distinct branch of the [first]

complaint doctrine that gives special consideration to the

natural fear, ignorance, and susceptibility to intimidation that

is unique to a young child's make-up." Commonwealth v. Smith,

59 Mass. App. Ct. 181, 184 (2003) (citation omitted). Here, the

victim reported the abuse to her friend a few years after the

final incident of sexual assault. This delay in disclosure was

not so long as to render the friend's testimony inadmissible

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because the victim was a child both at the time of the sexual

assaults and when she made the complaint to her friend.

Further, the defendant had been a "father figure" for the

victim, providing her with food and shelter, and the victim was

living in another State, removed from the defendant, when she

made her complaint. See Commonwealth v. McKinnon, 35 Mass. App.

Ct. 398, 399-404 (1993) (thirty-four month delay in child sexual

assault case determined to be reasonably prompt given

circumstances of disclosure). Again, the reliability of the

first complaint witness's testimony was a question for the jury

to consider. To that end, the judge instructed the jury that

"[t]he length of time between the alleged crime and the report

of the complainant to this witness is one factor you may

consider in evaluating the complainant's testimony. But you may

also consider that sexual assault complainants may delay

reporting the crime for a variety of reasons."

Finally, the defendant's argument relating to the victim

confiding in her friend as opposed to her family is also without

merit. It is not implausible that a victim who was sexually

assaulted by her great uncle, and who testified that other

members of her family had been abusive, would be hesitant to

disclose the crimes committed against her to that same family.

The jury could appropriately consider these circumstances

relating to the disclosure. See King, 445 Mass. at 245-246.

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Accordingly, we conclude that the first complaint testimony

provides no basis for reversal of the defendant's convictions.

To the extent the defendant contends that the testimony should

not have been admitted because it conflicts with the victim's

testimony, that objection goes to the weight, not the

admissibility of the testimony. To the extent the defendant

argues that inconsistencies between the two accounts rendered

the victim's testimony insufficiently credible to support

conviction, that is in essence a challenge to the sufficiency of

the evidence, an issue that we discuss below.

2. The victim's outburst at trial. While testifying at

trial, the victim engaged in what the judge described as an

"outburst" after being pressed by defense counsel to identify

specific dates on which the sexual assaults occurred. 2 Any

unfair prejudice resulting from this emotional testimony was

appropriately mitigated by the judge. See, e.g., Commonwealth

v. Martinez, 437 Mass. 84, 89-90 (2002). The judge halted

2 After defense counsel asked the victim to identify the first
date on which the defendant improperly touched her, the victim
responded that she could not "tell you any dates, because it
happened numerous times, back and forth, time and time and time
and time and time and time again, time again, time again, time
again, rape me, rape me, rape me, beat me, rape me, rape me over
and over. . . . Stop asking me about time when he raped me
numerous times, numerous times, numerous times. Sometimes
daily, sometimes often, so numerous times. I can't tell you a
specific date." At this point, the judge dismissed the jury so
that he could address the victim outside their presence.

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defense counsel's questioning, dismissed the jury from the court

room, and told the victim: "[Y]our outburst at the time is

something that we really can't have in a court. So I'm asking

you to do whatever it takes to remain as calm as you can." He

then proposed a curative instruction directing the jury to put

aside sympathy and other emotions and focus on the facts of the

case, and both defense counsel and the prosecutor agreed with

that approach. The judge so instructed the jury when they

reentered the court room. Given our presumption that juries

follow judge's instructions, see Commonwealth v. Helfant, 398

Mass. 214, 228-229 (1986), and the record here does not suggest

otherwise, we conclude that the victim's outburst did not

unfairly prejudice the defendant. The fact that the jury

acquitted the defendant of three counts of rape of a child

aggravated by age difference further shows that they were not

improperly swept away by bias or prejudice resulting from this

outburst.

3. Sufficiency of the evidence. The defendant argues

there was insufficient evidence to support his convictions

beyond a reasonable doubt. He bases this argument primarily on

alleged inconsistencies in the victim's testimony.

In reviewing a claim of insufficient evidence, we determine

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

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the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The

relevant question is whether the evidence would permit a jury to

find guilt, not whether the evidence requires such a finding."

Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

The elements of rape of a child under G. L. c. 265, § 23,

are "(1) sexual intercourse or unnatural sexual intercourse with

(2) a child under sixteen years of age." Commonwealth v.

Lawton, 82 Mass. App. Ct. 528, 533 (2012). Here, the victim

testified that the defendant "forced his penis into [her]

vagina" when she was ten years old. She also testified that the

defendant would insert his finger into her vagina and would go

"in and out . . . with his fingers" when she was between the age

of ten and thirteen. 3 Based on this evidence, we conclude that a

rational jury could have found the essential elements of the

crime of rape beyond a reasonable doubt. See Commonwealth v.

Santos, 100 Mass. App. Ct. 1, 3 (2021) (in sexual assault case,

3 The verdict slip for count five, the second count of rape of a
child, stated: "(Act: fingers into vagina) (bedroom – bed –
with other kids in bed)." Penetrating the victim's vagina
digitally is sufficient to convict on this rape charge. See
Commonwealth v. Gallant, 373 Mass. 577, 584 (1977) ("Similarly,
the definition of 'unnatural sexual intercourse' must be taken
to include oral and anal intercourse, including fellatio,
cunnilingus, and other intrusions of a part of a person's body
or other object into the genital or anal opening of another
person's body").

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victim's testimony was "sufficient, standing alone, to support a

finding beyond a reasonable doubt").

The elements of indecent assault and battery on a child

under the age of fourteen under G. L. c. 235, § 13B, are "(1)

the child was not yet fourteen years old at the time of the

offense, (2) the defendant intentionally touched the child

without legal justification or excuse, and (3) the touching was

indecent." Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562

(2018). "[T]he intentional, unjustified touching of private

areas such as the breasts, abdomen, buttocks, thighs, and pubic

area . . . constitutes an indecent assault and battery." Id.

Here, the victim testified that, while she was living with the

defendant when she was between the ages of nine and thirteen,

the defendant "was touching on [her] training bra" and "kept

touching [her] under [her] shirt and stuff." This evidence,

viewed in the light most favorable to the Commonwealth, was

sufficient to permit a rational jury to find all three elements

of indecent assault and battery beyond a reasonable doubt.

There is no merit to the defendant's argument that the

evidence was insufficient because the victim's testimony was

inconsistent. Alleged inconsistencies in a witness's testimony

"go to their credibility and do not affect the sufficiency of

the evidence." Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).

"Once sufficient evidence is presented to warrant submission of

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the charges to the jury, it is for the jury alone to determine

what weight will be accorded to the evidence" (citation

omitted). Id.

Judgments affirmed.

By the Court (Green, C.J.,
Vuono, Wolohojian,
Desmond & Toone, JJ. 4),

Assistant Clerk

Entered: March 4, 2024.

4 The panelists are listed in order of seniority.

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