Com. v. Balkind

March 31, 2011

Commonwealth v. Balkind

Docket No. 10-P-286

Appeals Court of Massachusetts

Unpublished; Rule 1:28 decision

Sex offender, assault and battery, witness testimony

The defendant was convicted after a bench trial of one count of indecent assault and battery on a child under the age of fourteen and one count of indecent assault and battery on a child under the age of fourteen by a previously convicted offender.


Facts: The victim’s brother observed the defendant touching the victim’s inner thigh and confronted the defendant. Shortly after this incident, the defendant moved to Florida.

Issue 1: Was the evidence provided sufficient to support a finding of indecent assault and battery?

Yes. The evidence demonstated that the defendant touched the victim’s vagina in a way that made the victim uncomfortable. The victim’s mother and brother provided corroborating testimony. The victim’s inconsistency regarding where she was touched was not so extensive as to render the evidence insufficient. 

Issue 2: Did the judge improperly admit into evidence temporally irrelevant uncharged misconduct? 

No. The uncharged misconduct occurred about one year before the charged conduct, but was similar in nature and took place in the defendant’s house while the victim was visiting. As there is no bright-line test for determining temporal remoteness and as a greater time difference is allowed in “a continuing course of related events” there was no abuse of discretion in admitting evidence of prior misconduct. 

Issue 3: Did the judge improperly consider a conclusory description of the defendant’s face?

No. The judge sustained defense counsel objection to the testimony that the defendant had “the most guilty look” on his face when the victim’s brother observed the incident. The witness then described the facial expression in more objective terms. The judge is assumed to have disregarded the conclusory statement and to have corroborated the victim’s testimony only with the admissible witness testimony. 

Issue 4: Was testimony of the defendant’s move to Florida improperly considered as evidence of consciousness of guilt? 

No. It is within the judge’s discretion to admit such evidence as long as the flight was not too remote in time from the alleged incidents. Here, a witness’s testimony maintained that the defendant fled after the witness confronted him about the incident. It was within the judge’s discretion to credit this testimony and discredit conflicting testimony provided by the defendant’s wife. 

Issue 5: Did the judge err by allowing the first complaint witness to describe subsequent accusations by the victim? 

No. The first complaint witness’s testimony did not violate the first complaint doctrine because it merely described the chain of contact and did not repeat the victim’s allegations. 


-Prepared by RAA