Commonwealth v. Olmande
995 N.E.2d 797
Mass. App. Ct.2013Background
- Jenna, then 18, testified about repeated sexual assaults by the defendant from age 4 to 8–9.
- The defendant was Jenna’s grandmother’s boyfriend and lived with/around Jenna during childhood.
- Aunt notified Jenna’s mother that Jenna’s underwear looked like an adult’s, suggesting sexual activity.
- Teresa, Jenna’s friend, was the first complaint witness who corroborated Jenna’s disclosures.
- A gyn examination at age 13 showed no evidence; an expert noted lack of physical evidence likely after a year.
- Jenna’s aunt testified about the unusual underwear and discharge suggesting abuse, supporting corroboration
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Closing argument improper and prejudicial | Prosecutor urged jury to feel Jenna’s pain | No objection; arguments within bounds | No reversible error; safeguards mitigated impact |
| Sufficiency of evidence for rape of a child via digital penetration | Jenna testified touching clitoris; sufficient | Evidence insufficient for penetration | Sufficient evidence supports conviction |
| Lesser included offense instruction not sua sponte given | There was a basis for indecent assault partial conviction | No valid dispute on elements; no instruction required | No error; no substantial dispute of elements, thus no sua sponte instruction |
Key Cases Cited
- Commonwealth v. Kozec, 399 Mass. 514 (1987) (closing argument error framework; preservation considerations)
- Commonwealth v. Grinkley, 75 Mass. App. Ct. 798 (2009) (prosecutor’s attempt to place jurors in victim’s shoes improper)
- Commonwealth v. Ramos, 73 Mass. App. Ct. 824 (2009) (prosecutor cannot suggest credibility merely because witness testified)
- Commonwealth v. Shelley, 374 Mass. 466 (1978) (closing argument impact on verdict)
- Commonwealth v. Beaudry, 445 Mass. 577 (2005) (no substantial risk where no objection and curative instruction given)
- Commonwealth v. Leach, 73 Mass. App. Ct. 758 (2009) (context of improper remarks and minimal prejudice)
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (standard for reviewing sufficiency of evidence)