NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

18-P-456 Appeals Court

COMMONWEALTH vs. JEFFREY DOBBINS.

No. 18-P-456.

Hampden. September 16, 2019. - November 25, 2019.

Present: Kinder, Sacks, & Shin, JJ.

Indecent Assault and Battery. Rape. Assault with Intent to 

Rape. Statute, Construction. Evidence, Age, Opinion,

Exculpatory, Relevancy and materiality. Practice, 

Criminal, New trial, Assistance of counsel. Constitutional 

Law, Assistance of counsel.

Indictments found and returned in the Superior Court 

Department on May 1, 2012. 

The cases were tried before John S. Ferrara, J., and a 

motion for a new trial, filed on February 10, 2015, was heard by 

him.

Michael P. Gerace for the defendant.

Cynthia Cullen Payne, Assistant District Attorney, for the 

Commonwealth.

SHIN, J. After a jury trial in Superior Court, the 

defendant was convicted of rape of a child with force, assault 

of a child with intent to rape, and two charges of indecent 

assault and battery on a person fourteen years of age or older
2

(G. L. c. 265, § 13H). We consolidated the defendant's direct 

appeal with his appeal from the order denying his motion for a 

new trial. In the consolidated appeal, the defendant argues 

that his convictions of indecent assault and battery should be 

reversed because the evidence was insufficient to establish that 

the victim was fourteen years of age or older at the time of the 

assaults, that the judge abused his discretion by allowing a lay 

witness to testify that the victim has a learning disability,

and that a new trial is warranted because defense counsel was

constitutionally ineffective. We conclude that proof that the 

victim "has attained age fourteen" is not required to sustain a 

conviction of indecent assault and battery under G. L. c. 265, 

§ 13H, so any failure of proof in that regard is not a basis to 

reverse the defendant's convictions. Discerning no merit to the 

defendant's remaining arguments, we affirm.

Background. The jury could have found the following facts. 

The victim was sixteen years old at the time of trial. She had 

been living with her grandmother, her legal guardian, since she 

was young but visited her mother at her apartment approximately 

once or twice per month. The mother has five other children, 

two of whom lived with her; the other three lived with their 

father. When the victim stayed overnight at the mother's 

apartment, she usually slept on the sofa in the downstairs

living room or on the floor of the mother's upstairs bedroom. 
3

The defendant and the mother were dating, and he stayed 

overnight at the apartment on a regular basis. 

The defendant sexually assaulted the victim multiple times

when she was "[t]hirteen, fourteen" years old.1 On several

nights when the victim was sleeping in the living room, the 

defendant would approach the victim, ask her to "suck his dick,"

and then force her mouth open with his hands and insert his 

penis. The victim estimated that this happened twenty to 

twenty-five times. 

The defendant also assaulted the victim in the mother's 

bedroom. After the mother fell asleep, the defendant would 

reach down to where the victim lay on the floor and touch her

breasts and vaginal area over her pajamas. The victim testified 

that this happened "[a] few times." 

Discussion. 1. Indecent assault and battery convictions. 

General Laws c. 265, § 13H, provides in relevant part that 

"[w]hoever commits an indecent assault and battery on a person 

who has attained age fourteen shall be punished." Citing the 

statute and Instruction 6.500 of the Criminal Model Jury 

Instructions for Use in the District Court (2009) (in effect at 

 

1 The victim turned fourteen on May 25, 2011. She believed 

that the assaults began in 2010, but was uncertain and could not 

give a definitive time frame. 
4

the time of trial),2 the defendant contends that the Commonwealth 

was obliged to prove as an element of § 13H that the victim had 

"attained age fourteen" when the assaults occurred. We conclude 

to the contrary that § 13H does not require such proof.

"Our primary duty in interpreting a statute is 'to 

effectuate the intent of the Legislature in enacting it.'" 

Commonwealth v. Brown, 479 Mass. 600, 606 (2018), quoting

Sheehan v. Weaver, 467 Mass. 734, 737 (2014). Thus, "[w]e will 

not adopt a literal construction of a statute if the 

consequences of such construction are absurd or unreasonable." 

Brown, supra, quoting Attorney Gen. v. School Comm. of Essex, 

387 Mass. 326, 336 (1982). Rather, we will "assume the 

Legislature intended to act reasonably." Commonwealth v. Muir,

84 Mass. App. Ct. 635, 640 (2013), quoting School Comm. of 

Essex, supra. 

The Legislature enacted § 13H through St. 1980, c. 459, 

entitled "An Act Providing Graduated Penalties and Victim 

Compensation for the Crime of Rape and Related Offenses." At 

 

2 The judge instructed the jury in accordance with § 3.5 of 

the Massachusetts Superior Court Criminal Practice Jury 

Instructions (2d ed. 2013) that the Commonwealth had to prove 

"that the alleged victim was at least [fourteen] years of age at 

the time of the alleged offense." While the Superior Court 

model instruction has not changed, the current version of the

District Court model instruction does not include age as an 

element of the offense. See Instruction 6.500 of the Criminal 

Model Jury Instructions for Use in the District Court (2018). 
5

the same time, the Legislature amended G. L. c. 265, § 13B --

which criminalizes indecent assault and battery on a child under 

the age of fourteen -- by, among other things, increasing the 

penalties applicable to that offense. Under § 13B an indecent 

assault and battery on a child under the age of fourteen is 

punishable by up to ten years in State prison. In contrast, 

under § 13H, an indecent assault and battery on a person 

fourteen years of age or older is punishable by up to five years 

in State prison.

Considering these statutory provisions together, we think 

it apparent that the language "on a person who has attained age 

fourteen" in § 13H was intended to differentiate that crime from 

the crime of indecent assault and battery on a child under age 

fourteen. It was not intended to create an element that the 

Commonwealth must prove beyond a reasonable doubt. Were we to 

conclude otherwise, it would mean that a defendant in a case 

such as this would avoid prosecution altogether solely because 

of the victim's inability to recall with certainty whether she 

was under or over the age of fourteen at the time of the 

offense.3 We are confident that the Legislature did not intend

to create such an anomaly.

 

3 Age is an element of the offense of indecent assault and 

battery on a child under the age of fourteen. See Commonwealth

v. Traynor, 40 Mass. App. Ct. 527, 528 (1996). 
6

We addressed a similar question of statutory construction 

in Muir, 84 Mass. App. Ct. at 639-641. At issue there was 

subsection 1 of G. L. c. 90, § 24 (2) (a1/2), which punishes 

whoever, while operating a motor vehicle on a public way, leaves 

the scene of an accident "after knowingly colliding with or 

otherwise causing injury to any person not resulting in the 

death of any person." We concluded that "not resulting in the 

death of any person" is not an element of subsection 1, but 

instead was intended to differentiate subsection 1 from 

subsection 2, which makes it a felony to leave the scene of an 

accident involving death with the intent of avoiding prosecution 

or evading apprehension. Muir, supra at 640. A contrary 

reading, we reasoned, would lead to the unreasonable result that 

it would be a criminal offense to leave the scene of an accident 

causing injury (but not death) regardless of the purpose for 

leaving, but lawful to leave the scene of an accident causing 

death if the purpose for leaving was not to avoid prosecution or 

evade apprehension. See id. at 640-641. See also Commonwealth

v. Lockwood, 95 Mass. App. Ct. 189, 197 & n.7 (2019) ("no person 

lawfully therein being put in fear" not element of G. L. c. 266, 

§ 18, but rather "a means by which to distinguish § 18 from the 

more serious crime" of G. L. c. 266, § 17, which does require 

proof of person "being put in fear").
7

Likewise here, we decline to ascribe to the Legislature an 

intent that would lead to an unreasonable result. We thus 

conclude that the Commonwealth was not required to prove that 

the victim was age fourteen or older to sustain the convictions

of indecent assault and battery under § 13H. The jury 

instruction, which erroneously added to the Commonwealth's 

burden of proof, does not change our conclusion. "A jury 

instruction that 'add[s] elements to the government's burden of 

proof beyond those required by statute . . . may not become the 

law of the case' if it is 'patently incorrect.'" Commonwealth

v. Buttimer, 482 Mass. 754, 766 n.17 (2019), quoting United 

States v. Zanghi, 189 F.3d 71, 79 (1999), cert. denied, 528 U.S. 

1097 (2000). Instead, we must look to "the elements of the 

charged crime," not "the erroneously heightened command in the 

jury instruction" in assessing the sufficiency of the evidence. 

Buttimer, supra, quoting Musacchio v. United States, 136 S. Ct. 

709, 715 (2016).4

2. Testimony about victim's learning disability. The 

defendant next argues that the judge abused his discretion by 

allowing the grandmother to testify, over the defendant's 

 

4 Although we held in Commonwealth v. Pinero, 49 Mass. App. 

Ct. 397, 399 (2000), that an erroneous jury instruction became 

the law of the case, the issue arose there in a different 

context -- namely, where the instruction created a risk of 

duplicative convictions.
8

objection, that the victim had "an individual educational plan, 

focusing on her learning specifically because she has a learning 

disability." In particular, the defendant argues that the

grandmother's testimony constituted improper lay opinion and 

that the fact of the victim's learning disability was 

exculpatory evidence that the Commonwealth should have disclosed 

before trial. We disagree on both counts.

The testimony was not improper lay opinion. As established 

at trial, the grandmother was involved with the victim since her 

birth, was the victim's legal guardian, and was "very involved 

in her education." That the victim had an individualized 

education plan because she has a learning disability was not an 

opinion based on "scientific, technical, or other specialized 

knowledge" necessitating an expert. Mass. G. Evid. § 701(c)

(2019). Rather, the judge was within his discretion to admit 

the testimony as a statement of observed fact. See Commonwealth

v. Bonds, 445 Mass. 821, 830 n.14 (2006) ("The mother, who 

obviously had intimate and lengthy experience caring for [the 

victim], was well situated to explain to the jury how [she] was 

affected by her disease"); Parker v. Boston & Hingham Steamboat 

Co., 109 Mass. 449, 451 (1872) ("The witness had the means of 

observing the plaintiff from time to time, and her testimony was 

as to facts within her observation and not a mere expression of 

opinion reached by a process of reasoning and deduction").
9

Nor was the fact of the victim's learning disability 

exculpatory evidence that the Commonwealth had to disclose. The 

defendant contends that, had he known of the evidence, he could 

have potentially called an expert to testify that the victim's 

learning disability was unrelated to her difficulties recalling 

time frames, which he says would have diminished the 

grandmother's and the victim's credibility. But neither the 

grandmother nor the victim gave testimony linking the victim's 

learning disability to her difficulties recalling time frames.5 

The defendant has thus failed to show that the evidence was 

exculpatory. See Commonwealth v. Healy, 438 Mass. 672, 679 

(2003) ("To prevail on a claim that the prosecution failed to 

disclose exculpatory evidence, a defendant must first prove that 

the evidence was, in fact, exculpatory").

Furthermore, the defendant suffered no prejudice from the 

admission of the testimony. The grandmother made only fleeting 

mention of the victim's learning disability, and the prosecutor 

made no reference to it in her closing argument. The record 

does not support the defendant's claim that the prosecutor made 

use of the testimony to elicit sympathy for the victim. 

 

5 The defendant agrees that it was proper for the 

grandmother to testify regarding the victim's difficulties with

time frames and concomitant need to record events in a calendar. 
10

3. Ineffective assistance of counsel. In his motion for a 

new trial, the defendant argued that trial counsel was 

ineffective for failing to investigate the victim's sister as a 

potential witness and for failing to call the victim's mother to 

testify. After four days of evidentiary hearings, the same 

judge who presided at trial denied the defendant's motion in a 

thorough written decision. We review the judge's decision only 

"to determine whether there has been a significant error of law 

or other abuse of discretion" (citation omitted). Commonwealth

v. Weichell, 446 Mass. 785, 799 (2006). We "extend[] special 

deference to the action of a motion judge who [as here] was also 

the trial judge." Commonwealth v. Rosario, 460 Mass. 181, 195 

(2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307

(1986).

The judge made the following factual findings, which are 

not clearly erroneous, regarding the defendant's claim that 

counsel was ineffective for not investigating the victim's 

sister. After trial ended, the sister spoke to the defendant by 

telephone and told him that it was the victim's fault that he 

was in prison and that the grandmother had pressured the victim 

into making false allegations against him. The sister later 

signed an affidavit to the same effect after she was contacted 

by the defendant's appellate counsel. At the evidentiary 

hearing, however, the sister recanted, testifying that the 
11

victim never said that she had made up the allegations. 

Instead, according to the sister, the victim disclosed the 

sexual assaults to her, but when the sister urged the victim to 

tell the mother, the victim said she did not want to because it 

could "break up their home." 

Based on these facts, the judge was within his discretion 

to conclude that the defendant failed to demonstrate that trial 

counsel was ineffective for failure to investigate the sister. 

The sister's telephone call with the defendant, and her signing 

of the affidavit, occurred after trial. The defendant has not 

shown why an ordinary fallible attorney would have had reason to 

know -- any time before or during trial -- that the sister had

potentially exculpatory information. See Commonwealth v. Denis, 

442 Mass. 617, 629 (2004), quoting Strickland v. Washington, 466 

U.S. 668, 691 (1984) ("While counsel certainly has 'a duty to 

make reasonable investigations,' counsel is also afforded the 

opportunity to 'make a reasonable decision that makes particular 

investigations unnecessary'"). Furthermore, given the sister's 

later recantation, the judge was warranted in concluding that 

the defendant failed to show that he was deprived of a 

substantial ground of defense. See Commonwealth v. Saferian, 

366 Mass. 89, 96 (1974). The defendant speculates that the 

sister would have testified consistently with her affidavit. 

But as the judge found, the sister could have testified as she 
12

did at the evidentiary hearing, and had she done so, her 

testimony would have been "both inculpatory and exculpatory" as 

"[i]t consisted of a complaint recounting the abuse and then an 

immediate recantation when [the sister] suggested disclosure to 

[the mother]." 

With regard to the defendant's claim that trial counsel 

should have called the victim's mother to testify, the judge was 

within his discretion to conclude that counsel's decision was 

not manifestly unreasonable.6 At the evidentiary hearing, the 

mother testified that her other children sometimes visited at 

the same time as the victim and that some would sleep in the 

living room with her. Although the defendant contends that this 

evidence could have been used to impeach the victim's testimony, 

the mother also testified that the victim sometimes slept alone 

in the living room. Thus, as the judge found, the mother's 

"testimony would not have negated the possibility that the 

assaults occurred as described by the victim." The mother's 

testimony would also have corroborated other aspects of the 

victim's testimony, including that the victim sometimes slept in 

 

6 The judge credited trial counsel's testimony that he spoke 

with the mother numerous times before trial and conducted two 

lengthy interviews. The judge could thus infer that counsel 

made a strategic decision not to call the mother to testify. A 

strategic decision constitutes ineffective assistance only if it 

was "manifestly unreasonable" when made. Commonwealth v. 

Kolenovic, 478 Mass. 189, 193 (2017), quoting Commonwealth v. 

Degro, 432 Mass. 319, 332 (2000).
13

the mother's bedroom on the floor closest to the defendant's 

side of the bed. For these reasons it was not manifestly 

unreasonable for counsel to choose not to call the mother to 

testify, and for the same reasons, that choice did not deprive 

the defendant of a substantial ground of defense.7 

Judgments affirmed.

Order denying motion for new 

trial affirmed.

 

7 The defendant also suggests on appeal that trial counsel 

did not adequately investigate the mother, pointing to counsel's 

statement in his affidavit that he "was unaware that [the 

mother] would have provided facts about the sleeping 

arrangements of [the victim]." The defendant posits that, as a 

result, "other potential percipient witnesses" (e.g., the other 

children) were not investigated. But the defendant's motion for 

a new trial did not argue that counsel was ineffective for this 

reason, and so any such claim is waived. See Commonwealth v. 

Velez, 82 Mass. App. Ct. 12, 19 (2012). In any event, the 

defendant has failed to show that these other potential 

witnesses would have materially aided the defense, for instance 

by significantly narrowing the number of times the victim slept 

alone in the living room.