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
24-P-689
COMMONWEALTH
vs.
ALVYS MARINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant was found
guilty on multiple counts: four counts of rape, photographing
an unsuspecting person in the nude, assault and battery on a
family or household member, and threats to commit a crime. On
appeal, the defendant contends that the trial judge erred in
admitting evidence of uncharged conduct by the defendant. We
affirm.
We summarize the evidence presented at trial as the jury
could have found it. See Commonwealth v. Hinds, 494 Mass. 681,
682 (2024). The defendant and the victim were married and had
two children together. In or around May 2013, the defendant put
his hand on the victim's thigh and started to rub her, but the victim pushed his hand away and told him that she never wanted
to be sexual with him again because of an affair he had with
another woman. The defendant then pulled down the victim's
pajama bottoms and vaginally raped her. After the rape, the
defendant told the victim that if she ever told anyone about the
rape he would chop her up with a knife and bury her and that she
would never see her kids again.
In 2017, the defendant yelled at the victim for leaving
dirty dishes in the sink and grabbed her by the neck. The
victim repeatedly asked the defendant to stop. He then anally
raped the victim.
The defendant again vaginally raped the victim on May 17,
2019, filming the sexual assault with his cellphone over her
protestations. A subsequent search of the defendant's cellphone
located two video recordings of female genitalia, dated May 17,
2019.
In 2020, the defendant repeatedly threatened the victim and
told her that she could only get a divorce on his terms, that
she could not get legal counsel, and that she could not tell
anyone about the abuse. In March of that year, the defendant
again yelled at the victim about the kitchen being messy, and he
repeatedly punched her. The defendant then vaginally raped the
victim again in May of that year. The victim testified that
2 over the course of their relationship, the defendant vaginally
raped her "somewhere around 70 times."
After their divorce was finalized in February 2021, the
victim planned to relocate to Florida. She went there to start
looking for a new home, and in late June 2021, the defendant
brought the children to Florida to begin acclimating them to
their new home. They all stayed in a hotel together. At that
time, the defendant learned that the victim might be
romantically involved with someone else. While at the hotel
pool, the defendant struck the victim on her collarbone and
upper chest area with his palms, and hotel security approached
the defendant. The defendant instructed the victim to go back
to the hotel room with the children, which they did. When the
defendant returned to the hotel room a few minutes later, he
punched the victim in the nose.
For the next fourteen hours, the defendant held the victim
and the children captive in the hotel room, the car, at
McDonald's, and at Walgreens. He struck the victim multiple
times; he threatened to rape her, to kill and dismember her if
she did not cooperate with the rape, and to kill her if she ever
told anyone. He also told the children that if they told anyone
about what happened that day, he would hide them with their
grandmother and cut the victim with his knife.
3 The victim was able to send a text message to 911 asking
for help, and in response, Orlando police officers came to the
hotel room and arrested the defendant. The defendant was
charged with multiple offenses in Florida, all of which
ultimately were dismissed.
Discussion. On appeal, the defendant argues that the
judge's rulings regarding the admission of evidence regarding
uncharged conduct, including that the defendant had raped the
victim around seventy times and the events that occurred in
Florida, were overly prejudicial and improperly admitted. 1
"[E]vidence of prior or subsequent bad acts may not be offered
to prove bad character or criminal propensity" (quotation and
citation omitted). Commonwealth v. Lally, 473 Mass. 693, 712
(2016). "However, such evidence is admissible when offered for
another purpose . . . , so long as its probative value for that
purpose is not outweighed by its prejudicial effect" (citation
omitted). Commonwealth v. Welch, 487 Mass. 425, 442-443 (2021).
See Mass. G. Evid. § 404(b)(2) (2026). Permissible purposes
include to demonstrate the hostile nature of the relationship
1 The Commonwealth argues that the defendant's claims were not properly preserved, that he has thus waived his argument regarding prejudice, and that this court should only review the admission of the evidence for a substantial risk of a miscarriage of justice. See Commonwealth v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024). We need not address this issue because we find that the admission of the evidence was proper.
4 between the victim and the defendant, see Commonwealth v.
Butler, 445 Mass. 568, 575 (2005), the defendant's pattern of
conduct, see Commonwealth v. Robertson, 88 Mass. App. Ct. 52,
55-56 (2015), and to rebut the defendant's theory of the case,
see Commonwealth v. Richardson, 423 Mass. 180, 187-188 (1996).
The determination whether to admit such evidence is
"committed to the sound discretion of the trial judge," which a
reviewing court will not disturb absent "palpable error"
(citation omitted). Commonwealth v. McCowen, 458 Mass. 461, 478
(2010). Admitting the victim's general statement that she had
been raped dozens of times by the defendant and the testimony
concerning the events that occurred in Florida was not error.
The evidence was admissible to show the hostile nature of the
relationship and the defendant's pattern of threatening the
victim to prevent her telling anyone about the incidents. See
Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015).
Furthermore, the defense theory at trial was that the victim's
accusations were motivated by anger at the defendant and a
desire to gain advantage in civil cases. At trial, the
defendant attacked the victim's credibility based on her delay
in reporting many of the assaults; evidence describing the
atmosphere of fear and abuse which the defendant had cast over
his relationship with the victim thus had amplified probative
value in explaining that delay to the jury. See Richardson, 423
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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
24-P-689
COMMONWEALTH
vs.
ALVYS MARINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant was found
guilty on multiple counts: four counts of rape, photographing
an unsuspecting person in the nude, assault and battery on a
family or household member, and threats to commit a crime. On
appeal, the defendant contends that the trial judge erred in
admitting evidence of uncharged conduct by the defendant. We
affirm.
We summarize the evidence presented at trial as the jury
could have found it. See Commonwealth v. Hinds, 494 Mass. 681,
682 (2024). The defendant and the victim were married and had
two children together. In or around May 2013, the defendant put
his hand on the victim's thigh and started to rub her, but the victim pushed his hand away and told him that she never wanted
to be sexual with him again because of an affair he had with
another woman. The defendant then pulled down the victim's
pajama bottoms and vaginally raped her. After the rape, the
defendant told the victim that if she ever told anyone about the
rape he would chop her up with a knife and bury her and that she
would never see her kids again.
In 2017, the defendant yelled at the victim for leaving
dirty dishes in the sink and grabbed her by the neck. The
victim repeatedly asked the defendant to stop. He then anally
raped the victim.
The defendant again vaginally raped the victim on May 17,
2019, filming the sexual assault with his cellphone over her
protestations. A subsequent search of the defendant's cellphone
located two video recordings of female genitalia, dated May 17,
2019.
In 2020, the defendant repeatedly threatened the victim and
told her that she could only get a divorce on his terms, that
she could not get legal counsel, and that she could not tell
anyone about the abuse. In March of that year, the defendant
again yelled at the victim about the kitchen being messy, and he
repeatedly punched her. The defendant then vaginally raped the
victim again in May of that year. The victim testified that
2 over the course of their relationship, the defendant vaginally
raped her "somewhere around 70 times."
After their divorce was finalized in February 2021, the
victim planned to relocate to Florida. She went there to start
looking for a new home, and in late June 2021, the defendant
brought the children to Florida to begin acclimating them to
their new home. They all stayed in a hotel together. At that
time, the defendant learned that the victim might be
romantically involved with someone else. While at the hotel
pool, the defendant struck the victim on her collarbone and
upper chest area with his palms, and hotel security approached
the defendant. The defendant instructed the victim to go back
to the hotel room with the children, which they did. When the
defendant returned to the hotel room a few minutes later, he
punched the victim in the nose.
For the next fourteen hours, the defendant held the victim
and the children captive in the hotel room, the car, at
McDonald's, and at Walgreens. He struck the victim multiple
times; he threatened to rape her, to kill and dismember her if
she did not cooperate with the rape, and to kill her if she ever
told anyone. He also told the children that if they told anyone
about what happened that day, he would hide them with their
grandmother and cut the victim with his knife.
3 The victim was able to send a text message to 911 asking
for help, and in response, Orlando police officers came to the
hotel room and arrested the defendant. The defendant was
charged with multiple offenses in Florida, all of which
ultimately were dismissed.
Discussion. On appeal, the defendant argues that the
judge's rulings regarding the admission of evidence regarding
uncharged conduct, including that the defendant had raped the
victim around seventy times and the events that occurred in
Florida, were overly prejudicial and improperly admitted. 1
"[E]vidence of prior or subsequent bad acts may not be offered
to prove bad character or criminal propensity" (quotation and
citation omitted). Commonwealth v. Lally, 473 Mass. 693, 712
(2016). "However, such evidence is admissible when offered for
another purpose . . . , so long as its probative value for that
purpose is not outweighed by its prejudicial effect" (citation
omitted). Commonwealth v. Welch, 487 Mass. 425, 442-443 (2021).
See Mass. G. Evid. § 404(b)(2) (2026). Permissible purposes
include to demonstrate the hostile nature of the relationship
1 The Commonwealth argues that the defendant's claims were not properly preserved, that he has thus waived his argument regarding prejudice, and that this court should only review the admission of the evidence for a substantial risk of a miscarriage of justice. See Commonwealth v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024). We need not address this issue because we find that the admission of the evidence was proper.
4 between the victim and the defendant, see Commonwealth v.
Butler, 445 Mass. 568, 575 (2005), the defendant's pattern of
conduct, see Commonwealth v. Robertson, 88 Mass. App. Ct. 52,
55-56 (2015), and to rebut the defendant's theory of the case,
see Commonwealth v. Richardson, 423 Mass. 180, 187-188 (1996).
The determination whether to admit such evidence is
"committed to the sound discretion of the trial judge," which a
reviewing court will not disturb absent "palpable error"
(citation omitted). Commonwealth v. McCowen, 458 Mass. 461, 478
(2010). Admitting the victim's general statement that she had
been raped dozens of times by the defendant and the testimony
concerning the events that occurred in Florida was not error.
The evidence was admissible to show the hostile nature of the
relationship and the defendant's pattern of threatening the
victim to prevent her telling anyone about the incidents. See
Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015).
Furthermore, the defense theory at trial was that the victim's
accusations were motivated by anger at the defendant and a
desire to gain advantage in civil cases. At trial, the
defendant attacked the victim's credibility based on her delay
in reporting many of the assaults; evidence describing the
atmosphere of fear and abuse which the defendant had cast over
his relationship with the victim thus had amplified probative
value in explaining that delay to the jury. See Richardson, 423
5 Mass. at 187-188 (permitting prior bad act evidence to
rehabilitate witness "by explaining why, after a long period of
silence, [the victim] complained of the defendant's conduct"
[citation omitted]). We also note that the Florida events,
which occurred approximately two years before the trial, were
not excessively remote in time. See Commonwealth v. Scullin, 44
Mass. App. Ct. 9, 15-16 (1997) (prior bad acts of similar
misconduct two and one-half years before charged assault not so
remote in time "as to render the evidence inadmissible").
We conclude, contrary to the defendant's assertion, that
the judge appropriately balanced the probative weight of the
evidence with the risk of unfair prejudice. Counsel discussed
the admissibility of the evidence with the judge multiple times
prior to its admission, and the record demonstrates that the
judge carefully considered the evidence, weighed the relevant
factors, and provided the jury with clear limiting instructions,
thus mitigating any risk of undue prejudice to the defendant. 2
See Commonwealth v. MacCormack, 491 Mass. 848, 865 (2023)
(admission of prior bad acts evidence "for limited purposes and
with a clear, contemporaneous limiting instruction" [citation
omitted] not abuse of discretion).
2 At the suggestion of defense counsel, the judge excluded some evidence, only allowing the victim to testify in general form as to the history of abuse.
6 Finally, even if admitting the evidence was an abuse of
discretion, it was not prejudicial. In addition to detailed
descriptions of the defendant's charged rapes, assault, and
threats, the jury heard compelling evidence of the defendant's
consciousness of guilt in the recording of a telephone call
between the defendant and the victim. On the call, the
defendant said that the victim had been "taking the benefit" of
marriage, including the money and comforts, and that he
therefore had "fucked [her] because [she was] still married to
[him]." When the victim said that what he had done was called
spousal rape, the defendant responded that he didn't care what
it was called and that the victim's only recourse would have
been to leave the marriage. Later in the call, the defendant
stated, "You fucking decided to be my wife, you took that vow,
that oath or whatever, you signed that contract. That includes
fucking sex . . . ."
The jury could have viewed the recording as tantamount to a
confession by the defendant. Thus, the bad act evidence "did
7 not influence the jury, or had but very slight effect" (citation
omitted). Commonwealth v. Chalue, 486 Mass. 847, 868-869
(2021).
Judgments affirmed.
By the Court (Meade, D'Angelo & Tan, JJ. 3),
Clerk
Entered: May 6, 2026.
3 The panelists are listed in order of seniority.