Massachusetts Criminal Lawyer BlogOn Thursday, January 7, 2016 a Salem District Court jury found KU, a former Salem State University freshman, not guilty of Indecent Assault & Battery and Assault & Battery after deliberating for only 18 minutes. The case went back to May of 2014. KU (then a 19 year old male student) and NN (then a 19 year old female student) were both freshman at Salem State. They lived in the same dormitory. On Thursday, May 1, 2014 they went to a concert on the campus and then headed back to the dorm. NN invited KU to her room. He accepted the invite. Once in the room NN put on her television and got out a bottle of vodka and made a drink for herself and for KU. The two sat on NN’s bed and talked and watched TV. They were together in the room for several hours. After that her version of what happened and his version of what happened were very different. In a statement NN gave to the campus police she told the police that KU tried to kiss her and she told him she was not interested. She then told the police that KU said he wanted to f–k her and then he pushed her down on the bed and tried removing her bra and pants (without success). NN told the police that KU grabbed and slapped her buttocks and groped her breasts. The campus police called in KU. He told the police that yes he was in the room and yes he tried to kiss her but that was all that happened. He denied holding her down (the basis of the assault & battery charge) and he denied groping her breasts and touching her buttocks (the basis of the indecent assault & battery charge). The police charged KU with the two offenses.
Articles Posted in Indecent Assault & Battery
INDECENT ASSAULT AND BATTERY ON A CHILD – NOT GUILTY
On March 25, 2015, following a two day jury trial in Roxbury Municipal Court, HN, a 70 year old immigrant to the United States was found NOT guilty of three sex offenses in Roxbury Municipal Court. Attorney Robert Lewin represented HN and tried the case to a Suffolk County Jury. After the two day trial it took the jury only 40 minutes to find HN NOT guilty of Indecent Assault & Battery on a child under 14, NOT guilty of Lewd, Wanton and Lascivious Acts, and NOT guilty of Enticement of a Child Under 16 for a Sexual Act.
The case began almost one year ago on May 14, 2014. HN, then age 69, was retired and lived in the Dorchester section of Boston with his wife and one high school age son. They lived on the first floor of a two family house. HN’s landlord, the landlord’s wife, and their three children lived on the second floor. For the two years prior HN drove his son and the landlord’s youngest daughter (then age 13) to school every morning and he brought them home from school every day. On May 14, 2014 HN drove to the school to pick up his son and his landlord’s 13 year old daughter (Jane, a pseudonym). Jane got into the car. Jane testified that she got into the front seat and put the radio on and they were waiting for HN’s son to arrive so they could drive home. Jane testified that HN began to touch himself and began to masturbate; Jane further testified that HN reached across the front seat and began to rub Jane’s thigh. Jane testified that she the got out of the car. The next day Jane reported this to her best friend. In turn the police were notified and HN was charged with Indecent Assault & Battery on a child under 14 (the rubbing of Jane’s thigh), Lewd, Wanton and Lascivious act (masturbating in the car in the presence of a child) and Child Enticement (having Jane remain in the car while he performed a sex act). HN absolutely denied the allegations. HN sought out a lawyer and was referred to Attorney Robert Lewin in North Andover. After meeting with Attorney Lewin HN retained Attorney Lewin. Attorney Lewin began his case preparation and he could see cracks in Jane’s account of what happened. It took eight months to fully prepare the defense; every defense witness met with Attorney Lewin several times and was fully prepared to testify. Attorney Lewin brought the Defense witnesses into the courtroom prior to the trial and showed the witnesses where they would sit when they testified and how to direct their testimony toward the jury. Attorney Lewin thoroughly studied the “SANE” interview of Jane. (A “SANE” interview is an interview of the complainant that is conducted by a sexual abuse nurse examiner; the interview is recorded – video and audio – and the defense is given a copy of the interview.) On March 24, 2015 all the parties appeared in Court. Attorney Lewin had written out his opening and closing statements to the jury and had written out his cross examination of every government witness. No detail was left for chance. As the trial proceeded Attorney Lewin could see the looks on the faces of the jurors. Jane’s credibility as a witness was eroding with every question on cross examination. At the close of the Commonwealth’s case the Judge directed a finding of not guilty on the Child Enticement charge. On March 25, 2015 at 2:05 PM the jury went out to deliberate. At 2:45 PM the jury came in with NOT guilty verdicts on the remaining two charges. HN and his family were greatly relieved. Had he been found guilty he would have had to register as a sex offender for the next 20 years and he would have been subject to GPS tracking with a bracelet and he was looking at JAIL. HN, his wife and son gave Attorney Lewin a big group hug when they got outside the Courthouse. HN went home a FREE MAN. Attorney Lewin went home to his Sicilian wife who made him a big pasta dinner! It was a good day.
RAPE CHARGE STOPPED
On October 25, 2014 CM, an 18 year old boy from a town north of Boston, met JR, a 17 year old girl from another town north of Boston at a pre-Halloween party. The next day JR invited CM over to JR’s house. One thing lead to another very quickly and JR asked CM if he had a condom; when he said no, she produced a condom and the two of them had sex. For several days after that they texted one another but then JR got a boyfriend and CM became history. In late January 2014 JR’s boyfriend became history and JR and CM began texting one another again. They decided to hook up again. This time (on February 1, 2014) CM picked JR up and drove her to CM’s house where they went in and had sex again. This time CM was prepared and had a condom. After the sex, CM drove JR back to her house; they kissed one another and she exited his vehicle. The next day, February 2, 2014, the police show up at CM’s house and serve him with an Harassment Prevention Order from JR.On February 7, 2014 CM got a call from a Police Detective asking CM to come into the station. CM (without a lawyer) went to the Police Station where the police told him that he was being accused of rape and sexual assault of JR at CM’s house on February 1, 2014. CM freely admits having had sex with JR at his house on February 1, 2014 but is adamant that the sex was consensual. During the interview at the police station CM is never asked about and never mentions never mentions the October incident to the police.
CM and his parents contact Attorney Robert Lewin, in North Andover. Attorney Lewin tells them to come in immediately (that night) which they did. Attorney Lewin gets a complete statement of the facts from CM. CM’s family has a security video system installed on the exterior of their house and the video system captures on video all persons arriving at and leaving the house. CM’s parents bring the video recording from February 1, 2014 and it clearly shows CM and JR entering the house and then later leaving the house. JR appears perfectly normal. CM’s parents retain Attorney Lewin.
Attorney Lewin – that very same night – contacts the Police Department and faxes over a letter to the police that they are not to contact CM any further. In addition, Attorney Lewin faxed a letter over to the Middlesex County D.A.’s Office. More importantly Attorney Lewin layed out for the police and the DA CM’s innocence. The next day Attorney Lewin spoke directly with the lead detective in the case. It became immediate obvious to Attorney Lewin what happened in this case. JR never told her Mother and Grandmother (with whom she lived) that she had gone out with CM and that she was sexually active. JR’s Mother and Grandmother did not know about the sex in their own house back in October. The police did not know about the consensual sex in October. It was obvious that JR had never mentioned the sex in October to anyone. It became apparent to Attorney Lewin that when JR showed up at home after the February 1 hookup with CM that she had to have a story for her Mother and Grandmother; thus the rape accusation. The police were confounded when Attorney Lewin informed them of the sex back in October in JR’s own house. Here she was claiming to be raped in February and never mentioning to the police that CM had been at HER house and that she had provided him with a condom and that he and she had had consensual sex back in October. The DA’s Office requested a copy of the video which Attorney Lewin was only too happy to provide.
AGGRAVATED RAPE CHARGE DISMISSED
On January 8, 2013 PD, an 18 year old male, met CC on line. CC identified herself as a 17 year old female. The chatted online, they exchanged photos, they talked on the phone. One week later they agreed to meet and on January 15 PD drove to Lynn and picked her up and they drove around for a short time. They talked and both had a genuinely good time. PD brought her back home; there was no sex of any kind. They continued chatting and talking. CC told PD that she loved him. They agreed to get together again and on January 19, 2013 CC drove to Lynn again, picked up CC, and they went for a drive. She directed PD to a secluded parking lot. They kissed and talked; there was some fondling but then CC jumped out of the car. Eventually she got back in the car and PD drove her home. It turns out that CC was 14 years old and had sneaked out of the house unbeknownst to her mother. Several days later the police showed up at PD’s door and arrested him for Aggravated Rape, Rape of Child with Force, Indecent Assault and Battery on a Person 14 or older, Assault with a deadly weapon, and Threat to Commit a Crime. On January 22, 2013 PD was brought to Lynn District Court and arraigned and bail was set at $5,000.00. It took his family several days to raise the bail and PD was released. PD was bewildered as he had done nothing wrong. PD and his family contacted and retained Attorney Robert Lewin. Attorney Lewin took a very detailed statement of the facts from PD. His story had a ring of truth to it. The details were consistent with innocence. Attorney Lewin got the police reports and the girl’s statements and reviewed them in detail with PD. Again the details all pointed towards PD’s innocence. Attorney Lewin went up the chain of command in the DA’s Office and ultimately spoke with the head of the sexual abuse unit. Attorney Lewin sent a letter to the District Attorney asking the District Attorney to critically investigate the young girl’s statements. On February 28, 2013 (37 days after his arraignment) PD and Attorney Lewin appeared in Lynn District Court and the District Attorney filed a Nolle Prosequi to all the charges against PD. A Nolle Prosequi is a termination of the prosecution of a criminal case by the District Attorney. On February 28, 2013 PD walked out of Lynn District Court a free man. This happened in part because Attorney Lewin got on the case immediately, promptly prepared the case, and advocated zealously for the charges to be dropped.
INDECENT ASSAULT & BATTERY-WOBURN DISTRICT COURT
JN, a deliveryman for a home delivery service, made routine and frequent deliveries to a disabled woman at her home. One day while making a delivery she asked him to do a favor which he did. He told her he felt he deserved something for the favor. She went to give him a kiss on the cheek. He then kissed her on the lips inserting his tongue into her mouth. She retreated to her bedroom; he followed her and then proceeded to fondle her breasts (over her clothes), he lifted her shirt exposing her breasts, and he fondled her crotch area. He offered to show her his genitals but she declined. He then left. She was terrified. The matter was reported to the police. JN went to the police and confessed. He was summonsed to court and charged with two counts of indecent assault and battery on a person age 14 or over and one count of accosting and annoying a person of the opposite sex. A conviction of indecent assault and battery would have required (1) that JN register (for 20 years) as a sex offender with the Massachusetts Sex Offender Registry Board and (2) that JN wear a GPS device for the term of probation (if probation was imposed). JN retained Attorney Robert Lewin. JN did not want to go to trial but wished to resolve the case with probation without sex offender registration and without GPS Monitoring. JN was sent to
INDECENT ASSAULT & BATTERY ON A CHILD: THE STATE AND THE DEFENSE BOTH BLINK
SN, a 60 year old man from Methuen, was arrested and charged with Indecent Assault & Battery on a Child Under 14. The child was his 12 year old niece who complained that he had sexually assaulted her when she was 7 or 8 years old. SN vehemently denied the charge. Indecent Assault and Battery on a Child Under 14 is a felony punishable by up to ten years in the State Prison. A conviction requires Sex Offender Registration for up to life and GPS Monitoring with an electronic bracelet. In pre-trial discovery Attorney Lewin was able to discover a police report wherein it was reported that the child had told her sister that she may have been dreaming. During her SAIN Interview the child denied ever saying to her sister that she may have been dreaming. The sister, who lived in New Hampshire, refused to be interviewed by the defense. Attorney Lewin filed proceedings in Lawrence District Court to force the sister to appear in Lawrence District Court for the trial. Papers were sent to Salem District Court in Salem, NH and a hearing was set for a judge in NH to order the sister to appear in Massachusetts for the trial. The sister then agreed to appear at the trial. On Januray 31, 2011 all the parties appeared in Lawrence District Court and the case was called for trial. Both sides answered ready for trial. The Assistant District Attorney approached Attorney Lewin and offered to reduce the charge to simple Assault and Battery. Simple Assault and Battery is a misdemeanor that does not involve sex offender registration and does not involve GPS Monitoring. The DA offered straight probation on a plea to simple assault and battery. As he was required to do, Attorney Lewin conveyed the offer of the DA to SN. SN, who for weeks had had visions of going to state prison and of having to register as a convicted sex offender and of wearing an ELMO (Electronic Monitoring Device), took the DA’s offer immediately. He tendered what is called an Alford Plea. An Alford Plea is when you plead guilty but do not admit to having committed the crime. The Court accepted the Alford Plea to simple assault and battery and placed SN on straight probation. SN walked out of the Courthouse and went home. The DA blinked first when she offered the reduced plea to Assault and Battery with a sentence of Probation. Some Defendants would have read the offer as a signal that the State’s case was falling apart and would have refused the offer and gone to trial. SN saw that, but decided not to take the risk of going to trial. He blinked and took the plea. These are not easy decisions. We always tell clients “Don’t plead guilty to a crime you did not commit.” Sometimes, however, clients feel compelled to plead when an offer is made that is too good to turn down. That appears to be what SN thought in this case. It is hard to say that he was wrong. A felony conviction – which was certainly possible – meant jail time, sex offender registration, and GPS monitoring. With the plea to a misdemeanor he locked in Probation with no registration and no GPS. What would you have done? Would you have blinked?