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-144
COMMONWEALTH
vs.
AARON GUERRERO CANTU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a jury
trial, of assault and battery on a family or household member
(ABFHM), G. L. c. 265, § 13M (a), assault and battery with a
dangerous weapon (ABDW), G. L. c. 265, § 15A (b), and violation
of a c. 209A abuse prevention order, G. L. c. 209A, § 7. He
raises two issues on appeal. First, he contends that the judge
abused her discretion by joining the charges, which were the
subject of two separate complaints, for trial. Second, he
argues that factual misstatements and impermissible rhetoric in
the prosecutor's closing argument resulted in a substantial risk
of a miscarriage of justice. We affirm.
Background. We recount the facts as the jury could have
found them, reserving certain details for later discussion. See
Commonwealth v. Santana, 101 Mass. App. Ct. 690, 691 (2022). In October 2021, the victim suspected that her husband, the
defendant, was engaged in an extramarital affair. On February
7, 2022, the defendant and the victim, who shared a home, got
into a heated altercation about the matter. The defendant left
the house and drove to a Home Depot parking lot. The victim
followed in a separate car. When the victim arrived at the
parking lot, the argument continued, with the defendant
remaining in his car while the victim stood outside it. At some
point, the victim reached her arm through the driver's side
window so that the defendant would not close it. The defendant
then closed the window on her arm twice, leaving two marks on
her arm. As the argument continued, the defendant got out of
his car and tried to force the victim into his car. The
defendant pulled and pushed the victim and threw her to the
ground. The victim was afraid of the defendant, but she did not
leave because she wanted answers.
Eventually, the victim got into the passenger's seat of the
defendant's car. The couple drove away, but the argument
continued. On the way home, the defendant stopped the car, and
the victim got out. Once again, the defendant tried to force
the victim back into the car, and he tried to take her cell
phone away from her. The defendant pushed the victim, who hit
her head against a wooden post. When the victim yelled at a
passing driver for help, the defendant drove away. The victim
2 then walked home, which took about an hour and a half. The
victim did not report this incident to the police immediately,
but she took photos of her injuries the next day.
On March 7, 2022, the victim went to the police station to
report the February 7 incident. On March 8, 2022, the defendant
was charged in a complaint with four counts of ABFHM, two counts
of ABDW, and one count of threatening to commit a crime. After
pleading not guilty, the defendant was released pending trial.
On March 18, 2022, following a hearing at which the
defendant was present, the victim was granted a c. 209A
restraining order. On March 23, 2022, the victim went to
retrieve items from a car she owned with the defendant. The
defendant arrived and, rather than remove himself from the zone
around the victim, he videotaped the victim and laughed at her.
She reported the incident to the police, who arrested the
defendant. On March 28, 2022, the defendant was charged in a
new complaint with two counts of violating the c. 209A
restraining order.
At the Commonwealth's request, the trial judge joined the
two complaints for trial. The defendant was ultimately found
guilty of one count of ABFHM, one count of ABDW, and one count
of violating the 209A Order. This appeal followed.
Discussion. The defendant argues that the trial judge
abused her discretion when she allowed the complaints to be
3 joined for trial over the defendant's objection. More
specifically, he argues that the charges in the two complaints
were unrelated both because they arose from separate incidents
that took place about six and one-half weeks apart and because
the nature of the crimes was different (assault charges compared
to c. 209A violations). In addition, the defendant argues that
joinder of the complaints resulted in the jury hearing evidence
from one case that would otherwise have been inadmissible in the
other. He argues that, had the complaints been tried
separately, the jury would not have heard evidence that a
c. 209A order issued after the incident in the Home Depot
parking lot, and that admission of that evidence gave the
appearance that a judge had credited the victim's allegations
concerning that incident.1
A judge's discretionary determination to join complaints
"will be reversed only if there has been a clear abuse of
discretion." Commonwealth v. Allison, 434 Mass. 670, 679
(2001), citing Mass. R. Crim. P. 9 (a) (3), (d) (2), 378 Mass.
859 (1979). An abuse of discretion occurs if "the judge made a
clear error of judgment in weighing the factors relevant to the
decision such that the decision falls outside the range of
reasonable alternatives" (quotation and citations omitted).
1 The trial judge correctly identified this as a potential concern.
4 L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "To show
an abuse of discretion the defendant must demonstrate that
joinder resulted in prejudice or that his substantive rights
have been adversely affected." Allison, supra, citing
Commonwealth v. Sylvester, 388 Mass. 749 (1983).
Rule 9 of the Massachusetts Rules of Criminal Procedure
provides that a "[t]rial judge shall join [two or more related]
charges for trial unless [the judge] determines that joinder is
not in the best interests of justice." Mass. R. Crim. P. 9 (a)
(3). Offenses are related "if they are based on the same
criminal conduct or episode or arise out of a course of criminal
conduct or series of criminal episodes connected together or
constituting parts of a single scheme or plan." Mass. R. Crim.
P. 9 (a) (1). "The defendant bears the burden of demonstrating
that the offenses were unrelated." Commonwealth v. Gaynor, 443
Mass. 245, 260 (2005), citing Commonwealth v. Wilson, 427 Mass.
336, 346 (1998).
Here, the two complaints were based on incidents that took
place only six and one-half weeks apart and involved the same
victim. Much of the evidence concerning the first episode would
have been admissible at a separate trial on the second complaint
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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-144
COMMONWEALTH
vs.
AARON GUERRERO CANTU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a jury
trial, of assault and battery on a family or household member
(ABFHM), G. L. c. 265, § 13M (a), assault and battery with a
dangerous weapon (ABDW), G. L. c. 265, § 15A (b), and violation
of a c. 209A abuse prevention order, G. L. c. 209A, § 7. He
raises two issues on appeal. First, he contends that the judge
abused her discretion by joining the charges, which were the
subject of two separate complaints, for trial. Second, he
argues that factual misstatements and impermissible rhetoric in
the prosecutor's closing argument resulted in a substantial risk
of a miscarriage of justice. We affirm.
Background. We recount the facts as the jury could have
found them, reserving certain details for later discussion. See
Commonwealth v. Santana, 101 Mass. App. Ct. 690, 691 (2022). In October 2021, the victim suspected that her husband, the
defendant, was engaged in an extramarital affair. On February
7, 2022, the defendant and the victim, who shared a home, got
into a heated altercation about the matter. The defendant left
the house and drove to a Home Depot parking lot. The victim
followed in a separate car. When the victim arrived at the
parking lot, the argument continued, with the defendant
remaining in his car while the victim stood outside it. At some
point, the victim reached her arm through the driver's side
window so that the defendant would not close it. The defendant
then closed the window on her arm twice, leaving two marks on
her arm. As the argument continued, the defendant got out of
his car and tried to force the victim into his car. The
defendant pulled and pushed the victim and threw her to the
ground. The victim was afraid of the defendant, but she did not
leave because she wanted answers.
Eventually, the victim got into the passenger's seat of the
defendant's car. The couple drove away, but the argument
continued. On the way home, the defendant stopped the car, and
the victim got out. Once again, the defendant tried to force
the victim back into the car, and he tried to take her cell
phone away from her. The defendant pushed the victim, who hit
her head against a wooden post. When the victim yelled at a
passing driver for help, the defendant drove away. The victim
2 then walked home, which took about an hour and a half. The
victim did not report this incident to the police immediately,
but she took photos of her injuries the next day.
On March 7, 2022, the victim went to the police station to
report the February 7 incident. On March 8, 2022, the defendant
was charged in a complaint with four counts of ABFHM, two counts
of ABDW, and one count of threatening to commit a crime. After
pleading not guilty, the defendant was released pending trial.
On March 18, 2022, following a hearing at which the
defendant was present, the victim was granted a c. 209A
restraining order. On March 23, 2022, the victim went to
retrieve items from a car she owned with the defendant. The
defendant arrived and, rather than remove himself from the zone
around the victim, he videotaped the victim and laughed at her.
She reported the incident to the police, who arrested the
defendant. On March 28, 2022, the defendant was charged in a
new complaint with two counts of violating the c. 209A
restraining order.
At the Commonwealth's request, the trial judge joined the
two complaints for trial. The defendant was ultimately found
guilty of one count of ABFHM, one count of ABDW, and one count
of violating the 209A Order. This appeal followed.
Discussion. The defendant argues that the trial judge
abused her discretion when she allowed the complaints to be
3 joined for trial over the defendant's objection. More
specifically, he argues that the charges in the two complaints
were unrelated both because they arose from separate incidents
that took place about six and one-half weeks apart and because
the nature of the crimes was different (assault charges compared
to c. 209A violations). In addition, the defendant argues that
joinder of the complaints resulted in the jury hearing evidence
from one case that would otherwise have been inadmissible in the
other. He argues that, had the complaints been tried
separately, the jury would not have heard evidence that a
c. 209A order issued after the incident in the Home Depot
parking lot, and that admission of that evidence gave the
appearance that a judge had credited the victim's allegations
concerning that incident.1
A judge's discretionary determination to join complaints
"will be reversed only if there has been a clear abuse of
discretion." Commonwealth v. Allison, 434 Mass. 670, 679
(2001), citing Mass. R. Crim. P. 9 (a) (3), (d) (2), 378 Mass.
859 (1979). An abuse of discretion occurs if "the judge made a
clear error of judgment in weighing the factors relevant to the
decision such that the decision falls outside the range of
reasonable alternatives" (quotation and citations omitted).
1 The trial judge correctly identified this as a potential concern.
4 L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "To show
an abuse of discretion the defendant must demonstrate that
joinder resulted in prejudice or that his substantive rights
have been adversely affected." Allison, supra, citing
Commonwealth v. Sylvester, 388 Mass. 749 (1983).
Rule 9 of the Massachusetts Rules of Criminal Procedure
provides that a "[t]rial judge shall join [two or more related]
charges for trial unless [the judge] determines that joinder is
not in the best interests of justice." Mass. R. Crim. P. 9 (a)
(3). Offenses are related "if they are based on the same
criminal conduct or episode or arise out of a course of criminal
conduct or series of criminal episodes connected together or
constituting parts of a single scheme or plan." Mass. R. Crim.
P. 9 (a) (1). "The defendant bears the burden of demonstrating
that the offenses were unrelated." Commonwealth v. Gaynor, 443
Mass. 245, 260 (2005), citing Commonwealth v. Wilson, 427 Mass.
336, 346 (1998).
Here, the two complaints were based on incidents that took
place only six and one-half weeks apart and involved the same
victim. Much of the evidence concerning the first episode would
have been admissible at a separate trial on the second complaint
because it bore on the relationship between the parties and the
defendant's state of mind. See Commonwealth v. Delaney, 425
Mass. 587, 594 (1997), cert. denied 522 U.S. 1058 (1998)
5 ("Indeed, if the charges were tried separately, much testimony
would be duplicated at each trial merely establishing the
relationship between the victim and the defendant"). See also
Commonwealth v. Hoppin, 387 Mass. 25, 32 (1982) ("joinder may
promote economy in the trial of criminal offenses, particularly
when the same witnesses will testify concerning more than one
offense").
As the defendant points out, evidence of the issuance of
the c. 209A order and its violation would not necessarily have
been admissible in a separate trial on the charges contained in
the first complaint. But even were we to assume that, on this
basis, the complaints should not have been joined for trial, the
defendant has not shown prejudice from the joinder because it
did not require him to forgo any theory of defense and he was
acquitted of five of the seven charges charged in the first
complaint. We are satisfied that the jury was not swayed by the
joinder of the complaints and "carefully considered the evidence
with regard to each crime charged." Commonwealth v. Cash, 101
Mass. App. Ct. 473, 479 (2022), quoting Delaney, 425 Mass. at
595.
The defendant for the first time on appeal argues that the
prosecutor made errors in her closing argument resulting in a
substantial risk of a miscarriage of justice. See Commonwealth
v. Sanders, 101 Mass. App. Ct. 503, 511 (2022) (unpreserved
6 errors in closing argument reviewed for substantial risk of
miscarriage of justice). An error during closing argument
creates a substantial risk of a miscarriage of justice "if we
have a serious doubt whether the result of the trial might have
been different had the error not been made." Commonwealth v.
Silvelo, 96 Mass. App. Ct. 85, 91 (2019), quoting Commonwealth
v. Dirgo, 474 Mass. 1012, 1016 (2016).
The defendant contends that the prosecutor's closing
contained several errors. He claims that the prosecutor
impermissibly undermined the credibility of the defendant by
using the phrase "half-truth" when describing the defendant's
testimony and impermissibly vouched for the victim when using
the phrase "full truth" to describe her testimony. See
Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). He argues
that the prosecutor impermissibly aligned herself with the jury
by repeatedly using the phrase "we know." See Commonwealth v.
Burts, 68 Mass. App. Ct. 684, 688 (2007). Furthermore, he
argues that the prosecutor misstated the evidence when she
claimed that the victim screamed for help when the car window
was rolled up on her arm, which the victim did not articulate in
her testimony. See Commonwealth v. Mack, 482 Mass. 311, 322
(2019).
The closing should not have been structured around the
prosecutor's analogy with something that occurred at a friend's
7 bachelorette party, and there were better ways to express that
the victim's version of events was more complete than the
defendant's than to use the construct of "full truth" and "half
truth." Moreover, the prosecutor should not have aligned
herself with the jury or indicated her own personal belief about
the victim's testimony by using the phrase "we know the full
truth" or "I'm sure that's the truth" or "we know the truth."
Nonetheless, viewing the offensive comments "in the context of
the entire argument, and in light of the judge's instructions to
the jury and the evidence at trial," they did not result in a
substantial risk of a miscarriage of justice. Allison, 434
Mass. at 687, quoting Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 231 (1992). The judge repeatedly instructed the jury
that arguments are not evidence, including during the final
charge. See Wilson, 427 Mass. at 351, quoting Commonwealth v.
Santiago, 425 Mass. 491, 500 (1997). In addition, the defendant
was acquitted of five of the seven charges in the first
complaint, as well as one of the two charges in the second
complaint, indicating that the jury were not carried away by the
prosecutor's rhetoric or her minor misstatement of the evidence.
See Commonwealth v. Howell, 49 Mass. App. Ct. 42, 48, quoting
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) ("the jury's
acquittal of the defendant on three indictments . . . persuades
8 us that the error did not 'materially influence[]' the guilty
verdicts").
Judgments affirmed.
By the Court (Wolohojian, Neyman & Shin, JJ.2),
Assistant Clerk
Entered: January 25, 2024.
2 The panelists are listed in order of seniority.