Commonwealth v. Gregory F. Landry.

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

21-P-291

COMMONWEALTH

vs.

GREGORY F. LANDRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in Superior Court, a jury convicted the

defendant of one count of rape of a child, aggravated by more

than a ten year age difference, G. L. c. 265, § 23A (b), and one

count of indecent assault and battery on a person fourteen years

or older, G. L. c. 265, § 13H.1 On appeal, the defendant argues

that: (1) the judge erred by admitting numerous Instagram

direct messages under the first complaint doctrine; (2) there

was insufficient evidence to sustain his conviction of indecent

assault and battery; and (3) the judge erred in denying the

1 The jury also found the defendant guilty of one count of rape
of a child; the trial judge dismissed this conviction as merged
with the aggravated rape of a child. Prior to the jury's
deliberation, the judge dismissed indictments alleging assault
and battery and assault with intent to rape a child under
sixteen years. The judge also allowed the defendant's motion
for a directed verdict on one charge of open and gross lewdness.
defendant's motion to suppress statements he made to law

enforcement. We affirm.

Background. We summarize the facts the jury could have

found. The defendant was a close friend of the victim's mother.

The victim (who was fourteen years old) considered the defendant

(who was forty-four years old) family, referring to him as

"Uncle Greg."

On the night in question, the plan was for the victim to

help the defendant with his children that evening, sleep over in

the attic, and babysit the children the next day while the

defendant was at work. After the defendant's children went to

bed, the victim donned a bathing suit and went to the backyard,

where she chatted with the defendant and a woman visiting with

her two children. The visitors left and the victim got into the

inflatable hot tub. The defendant was alternating between

sitting in the hot tub and standing nearby to drink beer and

smoke. He eventually turned on the hot tub's jets.

The turbulence of the jets caused the victim to slip under

the surface; she began to choke on water and was unable to get

herself back up. The defendant put his hands underneath the

victim's armpits, picked her up, and put her over the side of

the hot tub. He jokingly told her, "Don't make me give you

mouth-to-mouth." As the victim continued to cough, her vision

began to darken, and she fell unconscious.

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The victim woke sometime later to the feeling of pressure

on her shoulders and an "intense throbbing" pain. She realized

that her bathing suit top was off and her bottoms were half way

down. She was positioned on top of the defendant's lap, his

hands pushing her body down by the shoulders, the defendant's

swim trunks were gone, and the defendant's penis was inside her

vagina.

The victim pushed the defendant off and shouted at him to

get away from her. He released her and moved away, apologizing.

The victim dressed hastily and jumped out of the hot tub,

running inside the house and up to the attic. There, she

changed out of her swim clothes and texted her mother "a bunch

of crying emojis." Receiving no response, the victim began

instant messaging her close school friend via Instagram's direct

message feature.

The victim sent her first message to her friend, eighteen

sad face emojis, at 11:10 P.M. The victim then wrote that "[a]

lot" was wrong and she "want[ed] to die"; she declined her

friend's offer to call because she was concerned that "[h]e"

would hear their conversation. Her friend sent messages

comforting her and coaxing her to tell him what happened. Their

written conversation lasted through the night, including a lull

during which the victim continued to send messages to her friend

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while he was sleeping. The conversation culminated in the

victim disclosing, at approximately 8:52 A.M., "I got raped."

The victim remained in the attic throughout the night,

except for a brief trip downstairs to check on her younger

sister, who was sleeping outside the defendant's room. The

defendant repeatedly approached the bottom of the attic stairs

and called up to the victim, telling her he was sorry and that

he loved her. The defendant also sent remorseful text messages

expressing his love for the victim and hatred for himself; the

victim responded with an accusation of rape, which he did not

deny.2

2 The defendant and the victim exchanged the following text
messages starting at 5:37 A.M. the morning after the assault,
which were read into evidence and some of which the defendant
had deleted.

Defendant: "Sorry, sorry, sorry, infinity."
Victim: "What you did was unforgivable."
Defendant: "[N]ever again, I promise. I love you [four
heart emojis] . . . forever."
Victim: "If you love me, you wouldn't have fucking
raped me."
Defendant: "No more hot tub with just us. I need a kick
in the jimmy."
Victim: "You're not making this any better. You're
making this worse by talking to me when I do
not wish to talk to you."
Defendant: "Okay. Sorry. Bye."

Several hours later, at approximately 9:20 A.M., the texting
resumed.

Defendant: "Please kill me. I feel awful."
Victim: "YOU DIDN'T FEEL THAT WAY WHEN I WAS ASLEEP."
Defendant: "Don't ever drink alcohol. Kill me."

4
Just after the text messaging between the victim and the

defendant started, at around 5:30 A.M., the defendant left for

work. The victim checked on the younger children, eventually

feeding them breakfast, and then spoke with her mother. At

around 8:30 or 9:00 A.M., before her mother got to the house,

the defendant returned. The victim was in the attic, and the

defendant attempted to hand her a "sword" and told her to stab

him with it. The victim declined and instead told the defendant

she was calling the police, which she did. The victim's mother

arrived at the home. Subsequently, several officers responded

to the defendant's address.3

Two officers went to the backyard, where the defendant was

standing. His two children were outside as well. One officer

approached the defendant, while the other stood back. The

officer asked the defendant if he knew why the police were

there. The defendant replied, "I may have inappropriately

touched her." The officer ceased asking questions and went to

confer with other officers.

Soon after this encounter, the defendant was handcuffed,

placed in the backseat of a police cruiser, and advised of his

Defendant: "I hate every minute now because you hate me."

3 The victim was eventually taken to the hospital. While there,
the clothing she was wearing and the clothing she changed into
after the incident were taken from her and examined. The
defendant's DNA was not detected on the victim's underwear.

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Miranda rights; the defendant stated that he understood his

rights. The arresting officer then asked the defendant what he

meant by his statement in the backyard and the defendant

explained that he may have inappropriately touched the victim's

breasts to keep her from drowning. He further stated that he

may have removed her bathing suit top, once again asserting that

he was trying to save her from drowning. He denied having

intercourse with the victim.

Discussion. 1. First complaint evidence. The defendant

contends that the motion and trial judges committed reversible

error by admitting Instagram messages sent hours before the

disclosure of sexual assault as first complaint evidence.4 He

argues that the statements exceeded the scope of the first

complaint doctrine and impermissibly prejudiced the defense.

We review the judge's decision to admit the messages as

first complaint evidence under an abuse of discretion standard.

Commonwealth v. Holguin, 101 Mass. App. Ct. 337, 340 (2022).

Because the defendant made a timely objection, we will determine

4 Prior to trial, the defendant moved in limine to limit the
scope of first complaint evidence to the single Instagram
message stating, "I got raped." The motion judge ruled that the
twenty-nine pages of messages preceding this disclosure were
part of the first complaint and, as such, admitted the entire
conversation from 11:10 P.M. to 8:52 A.M. The judge excluded
the fifteen pages of text that followed it. The defendant
raised the issue again during trial. The trial judge allowed
one additional redaction but otherwise agreed with and followed
that motion judge's ruling.

6
if there was error, and if so, whether it was prejudicial.

Commonwealth v. Aviles, 461 Mass. 60, 72 (2011). We conclude

that the judge acted within his discretion.

Pursuant to the first complaint doctrine, "the recipient of

a [victim's] first complaint of an alleged sexual assault may

testify about the fact of the first complaint and the

circumstances surrounding the making of that first complaint."

Commonwealth v. King, 445 Mass. 217, 218-219 (2005). A first

complaint witness may testify to "the details of the complaint

itself," including "the [victim's] statements of the facts of

the assault" (citation omitted). Id. at 244. The details of

the first complaint may also include "why the complaint was made

at that particular time." Id. at 245.

Here, the messages from the victim to her friend "were part

of a single, continuous first complaint."5 Holguin, 101 Mass.

App. Ct. at 340. That the exchange of messages paused while the

victim's friend fell asleep does not preclude the admission of

the whole conversation as a first complaint. Where a disclosure

is made in stages over an extended period, it may nevertheless

constitute a single first complaint where it consists of a

"single, tightly intertwined . . . communication," with "no

5 The messages spanned twenty-nine screenshots because only seven
to ten messages were displayed per screen. When typed, the
conversation was eight pages.

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meaningful gap in time." Commonwealth v. Revells, 78 Mass. App.

Ct. 492, 496 (2010). Here, although the conversation occurred

over the course of approximately nine hours overnight wherein

the recipient slept for approximately five hours, the victim

wanted to and tried to remain in contact with her friend

throughout the evening, and the communications were made to the

same recipient and concerned the same crime. See Holguin, supra

at 340-341. Thus, notwithstanding the gap while the victim's

friend slept, their "successive communications" were "part of 'a

single, tightly intertwined . . . communication.'" Id. at 340,

quoting Revells, supra. Contrast Commonwealth v. Rivera, 83

Mass. App. Ct. 581, 585 n.4 (2013) (one week gap in time between

conversations rendered communications distinct). The message

that the victim had been raped was the natural continuation of

the conversation, rather than a "[r]epetition of the narrative."

Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).6 We

therefore discern no abuse of discretion in the judge's decision

6 In addition, the dozens of messages exchanged between the
victim and her friend provided vital context of the
circumstances under which the victim ultimately disclosed that
she was raped. Accordingly, the messages leading up to the
message, "I got raped," were properly introduced "to give the
jury as complete a picture as possible of how the accusation of
sexual assault first arose." King, 445 Mass. at 247. See
Revells, 78 Mass. App. Ct. at 495 (oral and written
communications properly introduced as single first complaint to
allow "a fuller assessment of the victim's veracity").

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to admit the messages preceding disclosure as first complaint

evidence.

2. Sufficiency of the evidence. "To prove indecent

assault and battery on a person age fourteen or older, the

Commonwealth is required to establish that the defendant

committed 'an intentional, unprivileged, and indecent touching

of the victim.'" Commonwealth v. Benedito, 95 Mass. App. Ct.

548, 549 (2019), quoting Commonwealth v. Kennedy, 478 Mass. 804,

810 (2018). At trial, the Commonwealth argued, and the jury

were instructed, that the basis of the indecent assault and

battery charge was the touching of the victim's breasts. The

defendant argues that there was insufficient evidence that he

touched the victim's breasts and therefore that the trial judge

erred in denying his motions for a required finding of not

guilty.7 We disagree.

When evaluating a claim of insufficiency of the evidence,

we consider "whether after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

7 The defendant moved for a required finding of not guilty on the
indecent assault and battery count both at the close of the
Commonwealth's case-in-chief and at the close of all evidence.
Both motions were denied. Since the Commonwealth's position as
to proof did not change with the presentation of the defendant's
case, the analysis of both motions is the same. Commonwealth v.
Kelley, 370 Mass. 147, 150 n.1 (1976).

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reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

"Questions of credibility are to be resolved in the

Commonwealth's favor, and circumstantial evidence is sufficient

to establish guilt beyond a reasonable doubt." Commonwealth v.

Miranda, 458 Mass. 100, 113 (2010).

Here, in the light most favorable to the Commonwealth, the

evidence was sufficient to demonstrate that the defendant

committed an indecent assault and battery by touching the

unconscious victim's breasts.8 The defendant admitted that he

removed the bathing suit top of an unconscious teenage girl and

the victim confirmed her top was removed when she was

unconscious. Further, the defendant told the victim, "Don't

make me give you mouth-to-mouth" before she passed out, and when

the victim regained consciousness, she was being raped by the

defendant. In addition, one of the police officers testified

that he observed an oval injury on the victim's shoulder

"consistent with a bite mark, red in color." There was a

8 The Commonwealth may have taken on more of a burden than
necessary by conceding it needed to prove that the defendant
touched the victim's breasts. This court has held that "in
certain circumstances, removing a person's clothes may
constitute indecent assault and battery." Commonwealth v. Cruz,
93 Mass. App. Ct. 136, 140 (2018). For example, in Commonwealth
v. Kopsala, 58 Mass. App. Ct. 387, 393 (2003), we upheld a
conviction of indecent assault and battery where the defendant
"pulled up the victim's shirt, exposing her breasts, unbuttoned
her jeans and pulled them off, and removed her panties."

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thirty-year age gap between the victim and the defendant, and

the defendant was in a position of trust and authority with the

victim. Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566-

567 (2002) (in evaluating whether touching is indecent, our

cases have considered disparity in age and sophistication

between victim and defendant, among other things). Despite the

defendant's assertion that his touching of the victim's breasts

and removal of her top were accidental and necessary to save her

from drowning, the jury could have reasonably discredited this

assertion and inferred that the defendant removed the victim's

top for the purpose of indecently revealing and touching her

breasts.

3. Motion to suppress. The defendant asserts that the

motion judge erred in denying his motion to suppress statements

he made to police the morning after the assault. He argues

that, at the time he told police he "may have inappropriately

touched [the victim]," he was in the functional equivalent of

custody and thus entitled to Miranda protections.9 The defendant

further argues that statements he made after being arrested and

9 "Miranda warnings seek to protect an individual's 'fundamental'
right under the Fifth Amendment to the United States
Constitution that '[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.'" Commonwealth
v. Cawthron, 479 Mass. 612, 616 (2018), quoting Miranda v.
Arizona, 384 U.S. 436, 468 (1966).

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given Miranda warnings were inadmissible as fruit of the

poisonous tree.

In "reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of [their] ultimate findings and

conclusions of law.'" Commonwealth v. Clarke, 461 Mass. 336,

340 (2012), quoting Commonwealth v. Scott, 440 Mass. 642, 646

(2004). "Miranda warnings are only necessary where one is the

subject of 'custody and official interrogation.'" Commonwealth

v. Larkin, 429 Mass. 426, 432 (1999), quoting Illinois v.

Perkins, 496 U.S. 292, 297 (1990). It is the defendant's burden

to establish the necessary facts to prove custody. Larkin,

supra.

The evidence at the suppression hearing established that

the defendant was not in custody when he told police he may have

inappropriately touched the victim. See Commonwealth v. Groome,

435 Mass. 201, 211-212 (2001) (factors relevant to custody

include [1] place of interrogation; [2] whether officers

conveyed to defendant any belief or opinion that defendant is

suspect; [3] nature of interrogation; and [4] whether, at time

statement was made, defendant was free to end interview, as

evidenced by whether interview terminated with arrest). The

defendant made the statement while standing in his own backyard,

a "neutral site" with which he was familiar. Commonwealth v.

12
Lavendier, 79 Mass. App. Ct. 501, 504 (2011). Neither of the

officers present stated to the defendant that he was a suspect,

and the singular question asked was "investigatory rather than

accusatory." Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007).

The nature of the questioning was not aggressive, consisting

only of a brief, conversational exchange in which the defendant

was neither restrained nor threatened. See Commonwealth v.

Bryant, 390 Mass. 729, 737-738 (1984). Finally, although the

interaction culminated in the defendant's arrest, this was only

after the questioning officer conferred with his colleagues and

learned more of the defendant's role in the alleged crimes. At

the time the defendant made his statement, the officers had

given no indication by word or action that he was not free to

leave. See Commonwealth v. Medina, 485 Mass. 296, 304 (2020).

The defendant was not in custody when he spoke to police in his

backyard, and his fruit of the poisonous tree argument withers

accordingly. Thus, the motion judge did not err in denying the

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defendant's motion to suppress.

Judgments affirmed.

By the Court (Henry, Shin &
Hodgens, JJ.10),

Clerk

Entered: July 24, 2023.

10 The panelists are listed in order of seniority.

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