COMMONWEALTH v. HAKIM H., a Juvenile.

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-212

COMMONWEALTH

vs.

HAKIM H., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The appellant juvenile was adjudicated delinquent on a

complaint charging rape, in violation of G. L. c. 265, § 22 (b),

and indecent assault and battery on a person fourteen years old

or older, in violation of G. L. c. 265, § 13H. On appeal, the

juvenile claims that the adjudication of delinquency should be

reversed because of errors surrounding the admission of evidence

concerning an examination of the victim conducted by a Sexual

Assault Nurse Examiner (SANE). We affirm.

Background. The victim underwent a SANE examination a few

hours after reporting that the juvenile had raped her. The

nurse who examined the victim testified about her findings and

the forms she completed. Because the Commonwealth had

previously agreed to the juvenile's motion in limine not to

permit the nurse to give the impression that SANE nurses are
"only brought in when there was a sexual assault," the

prosecutor and the nurse were careful to describe the medical

examination as a "forensic medical examination" rather than a

"sexual assault" examination, and to refer to the victim as the

"patient."

Forms that the nurse completed during the examination were

admitted in evidence. The words "sexual assault," "assault,"

and "sexual crime" were redacted from the titles of all the

forms; however, the parties failed to redact the words "assault"

and "assailant" in several places.

Sections of SANE forms 2A and 2B ask the examiner to check

boxes, based on the patient's report or the examiner's physical

findings, under the category "weapon/force used." On both forms

the nurse checked the box for "hold down/body weight." Form 2B

included a space for additional description, where the nurse

wrote "woke to person on top." Regarding this section of the

form, the prosecutor asked the nurse, "What, if anything, did

[the victim] describe?" The nurse answered, "[She] described

being held down."

Discussion. 1. Failure to redact. The juvenile claims

that it was reversible error to admit the SANE forms in evidence

without redacting the words "assault" and "assailant." See

Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). The

Commonwealth agrees. The parties disagree, however, as to

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whether the juvenile objected and, accordingly, the standard of

review.

The juvenile's counsel objected when the Commonwealth

requested that the SANE forms be marked as an exhibit. It is

not clear what the objection was. It appears that counsel

objected to only one portion of the exhibit, and that the

objection had to do with content that was unrelated to medical

treatment.1 "Because the [juvenile's] objections at trial went

to the substance of the victim's . . . statements [on the

forms], and the error here stemmed not from admission of those

statements, but rather from the failure to redact the language

of [the form] itself, we review for substantial risk of

miscarriage of justice." Dargon, 457 Mass. at 397.

We discern no such risk, because we are confident that in

the context of the entire trial, the failure to redact did not

materially influence the verdict. See id. at 397-398. See

Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). The case

turned on whether the victim consented to the juvenile's

indecent touching and penetrating her. She testified that she

woke from a heavy sleep and felt the juvenile's penis in her

vagina. He testified that the victim was awake and willing when

1 Indeed, in his brief the juvenile states that he "objected to
the forms coming in that do not go to treatment but to evidence
collection."

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he inserted his finger in her vagina and licked her vagina and

between her buttocks, and that she did not object until he

touched the tip of his penis to her "general butt area." In his

statements to his friends, however, he said he thought he had

"raped" the victim (although he claimed at trial that he "didn't

have a value of what that word actually meant in that time" and

that "[t]he word meant nothing at the time"). His oral and

written statements to the police suggested that the victim was

asleep and unresponsive. In closing argument, the prosecutor

focused on the testimony of the victim, of the victim's and

juvenile's friends, and on the juvenile's admissions. The

prosecutor mentioned the SANE report only once, in reference to

the tearing and bleeding of the victim's hymen. See Dargon, 457

Mass. at 398 (in closing argument prosecutor referenced only

admissible portions of SANE forms). We are confident that the

preprinted references to "assault" and "assailant" on the forms

had little, if any, influence on the jury's assessment of the

victim's lack of consent.

2. Descriptions of victim being held down. The checkmarks

on the forms for "hold down/body weight" and the victim's

description that she "woke to person on top" were properly

admitted under the medical records exception to the hearsay

rule. See G. L. c. 233, § 79; Mass. G. Evid. § 803(6)(B)

(2023). "The statute has long been construed to permit the

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admission of a record that relates directly and primarily to the

treatment and medical history of the patient, 'even though

incidentally the facts recorded may have some bearing on the

question of liability.'" Commonwealth v. Torres, 479 Mass. 641,

653 (2018), quoting Commonwealth v. Dube, 413 Mass. 570, 573

(1992). The exception extends to "physical observations from

which inculpatory inferences flow" (quotation and citation

omitted). Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).

See, e.g., Commonwealth v. McGann, 484 Mass. 312, 319-320 (2020)

(statement "repeatedly beat him about the head/face and bit him

several times in arms and also came after him with steak knife"

in victim's medical records properly admitted). The fact that

SANE records have the "dual purpose" of medical treatment and

criminal investigation does not make them inadmissible. See

Dargon, 457 Mass. at 393, 395-396.

The defendant argues, for the first time on appeal, that

these notations of the forms are nonetheless inadmissible under

a free-standing notion of "reliability" that he derives from

Bouchie v. Murray, 376 Mass. 524, 528 (1978) ("the medical

records exception statute makes admissible only those portions

of records relating to treatment and medical history which

possess the characteristics justifying the presumption of

reliability"). While the medical records exception does not

"render[] admissible all the contents of hospital records," id.,

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as the court explained in Dargon, 457 Mass. at 396, a patient's

own statements to a nurse consulted for treatment and recorded

in treatment records are considered presumptively reliable. The

juvenile has not rebutted that presumption. While the "hold

down/body weight" box might be an imperfect classification for

the victim's statements, the more precise notation "woke to

person on top" is perfectly consistent with the victim's trial

testimony. There was no error in admitting these notations on

the SANE forms.

The nurse's testimony that the victim "described being held

down," however, is problematic. To the extent the nurse was

characterizing the exhibit in evidence, the support for this

testimony is weak, and to the extent the nurse was relating a

statement of the victim that was not recorded on the exhibit, a

hearsay objection might have been warranted. But the juvenile's

counsel did not object, whereas counsel did object moments later

-- and her objection was sustained -- when the nurse was asked

whether the victim described penetration of her vagina.

Assuming without deciding that the testimony that the victim

"described being held down" was admitted in error, we do not

discern a substantial risk of a miscarriage of justice. The

testimony was fleeting, the prosecutor did not refer to it in

closing, and the lack of an objection was an indication that it

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was not particularly prejudicial. See Commonwealth v. Vallejo,

455 Mass. 72, 81-82 (2009).

3. Dargon instruction. "When a SANE kit is introduced as

an exhibit or when testimony is offered concerning the SANE

examination process," and an explanatory instruction is

requested, a judge "should explain to the jury that SANE

examinations occur when there is an allegation or complaint of

sexual assault; and the fact that the examination occurred, by

itself, does not constitute evidence or any indication that the

complaint is valid." Dargon, 457 Mass. at 398 n.13. The

juvenile specifically requested this instruction, but the

Commonwealth opposed it and the judge denied it. The

Commonwealth argued that because the nurse's testimony had been

presented in a sanitized form, using the term "medical forensic

examination" instead of "SANE," the jurors would be confused by

an instruction regarding a SANE examination. The juvenile

responded, sensibly, that the language of the instruction could

be altered accordingly. We see no prejudice to the Commonwealth

in providing the prophylactic instruction mandated by Dargon,

and it could easily have been tailored to fit the circumstances.

Because the instruction should have been given, we must

determine whether its omission was prejudicial. See

Commonwealth v. Tillis, 486 Mass. 497, 503 (2020). "An error is

not prejudicial only if the Commonwealth can show with fair

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assurance . . . that the judgment was not substantially swayed

by it" (quotations and citations omitted). Commonwealth v.

Martin, 484 Mass. 634, 647 (2020). "We conclude, with fair

assurance, that the defendant suffered no prejudice from this

error." Id.

Although not a good reason to oppose the instruction, the

Commonwealth carefully elicited the nurse's testimony in a way

that avoided the impression "that every person who complains of

sexual assault has in fact been assaulted," Dargon, 457 Mass. at

398 n.13, which is the harm that the Dargon instruction is

designed to alleviate. Not only was the SANE testimony

presented in a sanitized form, the Commonwealth did not dwell on

it. As previously discussed, the case centered on the

credibility of the witnesses who were present before, during,

and after the crimes, and we are confident that any inference

the jury might have drawn from the fact that the victim

underwent a "forensic medical examination" -- or from any error

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surrounding the testimonial and documentary evidence concerning

the examination -- did not substantially sway the verdicts.

Adjudications of delinquency
affirmed.

By the Court (Milkey,
Massing & Neyman, JJ.2),

Assistant Clerk

Entered: March 19, 2024.

2 The panelists are listed in order of seniority.

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