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
25-P-786
COMMONWEALTH
vs.
ARTHUR MUDDE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
aggravated rape as a joint venturer with his codefendant, Duc
Minh La.1 On appeal, he claims that he received ineffective
assistance of counsel, the prosecutor made misstatements of the
evidence in her closing argument, and that several witnesses
gave improper cumulative first complaint testimony. We affirm.
1. Ineffective assistance of counsel. The defendant
claims for the first time on appeal that he was deprived of
effective assistance of counsel where his trial counsel did not
present an expert witness to explain alternative possibilities
1The defendant was acquitted of a second count of aggravated rape. as to how the defendant's deoxyribonucleic acid (DNA) could have
been found on the victim's genital area. We disagree.
Claims of ineffective assistance of counsel are disfavored
if they are raised for the first time on direct appeal.
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The
exception to this is "when the factual basis of the claim
appears indisputably on the trial record." Commonwealth v. Keon
K., 70 Mass. App. Ct. 568, 573–574 (2007). We are not convinced
that this case falls within the exception.
It is not clear from the record how expert testimony would
have rebutted the evidence against the defendant. Indeed,
because the defendant did not raise this claim in a motion for
new trial, we have no affidavits or testimony from trial counsel
whether his acts or omissions were part of his trial strategy,
nor do we have an affidavit outlining what the testimony of a
putative expert would have been, and we do not have findings
from the trial judge as to the likely impact of this omission.
See Commonwealth v. Alicea, 464 Mass. 837, 850-851 (2013)
(ineffective assistance claim based on failure to call expert
"generally doomed" if not supported by expert's affidavit
disclosing content of potential testimony); Commonwealth v.
Adamides, 37 Mass. App. Ct. 339, 344 (1994) (when counsel fails
to call certain witnesses at trial, record alone provides
2 "insufficient factual basis for appellate review"). Because the
defendant's claim of ineffective assistance of counsel on direct
appeal fails to appear indisputably on the record, we decline to
resolve it.2
2. The prosecutor's closing argument. The defendant also
claims that the prosecutor made three material misstatements of
the evidence in her closing argument which requires a new trial.
We disagree.
The first claimed misstatement is that the prosecutor
improperly attributed the selection of the Casamigos tequila to
the defendant. As the defendant did not object to the
prosecutor's remark at trial, we review to determine if there
was error, and if so, whether it created a substantial risk of a
miscarriage of justice. See Commonwealth v. Desiderio, 491
Mass. 809, 815 (2023). There was no error.
2 In any event, we conclude that the omitted expert testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim). The jury convicted the defendant on a joint venture theory, suggesting that the presence of the defendant's own DNA on the victim's genitals was immaterial to that conviction. In addition, the defendant's counsel presented his DNA transfer theory through cross-examination of the Commonwealth's DNA experts, and argued it in his closing argument. Because "the jury were provided with essentially expert testimony on the subjects on which the defendant claims he needed expert opinion," Alicea, 464 Mass. at 851, there was no risk that justice miscarried.
3 The defendant claims that it was the female guests at the
nightclub who requested the Casamigos tequila. That much is
true. Nightclub personnel informed Kearvyn Arne, the
defendant's friend, that, given the number of people at the
table, Arne would have to purchase another bottle of alcohol.
Arne sent a text message to the defendant to ask what type of
alcohol he should purchase, because "the girls" wanted Casamigos
tequila while some of the defendant's friends preferred Hennessy
cognac. The defendant responded to Arne that, if he wanted "us
to hit," i.e., to have sex with the women, that Arne should
purchase the Casamigos because it was "more strong."
Accordingly, the defendant was involved in the selection of the
tequila, and the text messages revealed the reason why. There
was no misstatement.
The defendant next claims, also for the first time on
appeal, the prosecutor's argument improperly connected the
condoms in the defendant's bathroom to the rape. We disagree.
At trial, the victim testified that before the defendant
raped her, he "fidget[ed] with his hands and like sort of
open[ed] something up. [She could] tell he was taking out a
condom." The victim added that he was fidgeting with his hands
near his genital area. From this evidence, it was a reasonable
inference that the condom found in the defendant's bathroom
4 trash receptacle was connected to the rape. See Commonwealth v.
Francis, 450 Mass. 132, 142 (2007). After all, "inferences that
support a conviction 'need only be reasonable and possible;
[they] need not be necessary or inescapable.'" Commonwealth v.
Sabin, 104 Mass. App. Ct. 303, 305 (2024), quoting Commonwealth
v. Howe, 103 Mass. App. Ct. 354, 357 (2023). The inference the
prosecutor drew was proper.
Despite this, the defendant maintains that the argument was
nonetheless improper because an earring found in the trash with
the condoms did not belong to the victim. But this argument is
a non sequitur fallacy. It does not logically follow that
because one item in the trash was not connected to the rape, the
other items in the trash could not be connected to the rape.
There were a number of people at the "after party" in the
defendant's apartment, and the earing could easily have been
discarded by one of them or by someone on a different occasion.
There was no error, and thus, no risk that justice miscarried.
The defendant further claims the prosecutor unfairly argued
that the defendant removed the victim's underwear. The
defendant specifically objected to the prosecutor arguing that
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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
25-P-786
COMMONWEALTH
vs.
ARTHUR MUDDE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
aggravated rape as a joint venturer with his codefendant, Duc
Minh La.1 On appeal, he claims that he received ineffective
assistance of counsel, the prosecutor made misstatements of the
evidence in her closing argument, and that several witnesses
gave improper cumulative first complaint testimony. We affirm.
1. Ineffective assistance of counsel. The defendant
claims for the first time on appeal that he was deprived of
effective assistance of counsel where his trial counsel did not
present an expert witness to explain alternative possibilities
1The defendant was acquitted of a second count of aggravated rape. as to how the defendant's deoxyribonucleic acid (DNA) could have
been found on the victim's genital area. We disagree.
Claims of ineffective assistance of counsel are disfavored
if they are raised for the first time on direct appeal.
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The
exception to this is "when the factual basis of the claim
appears indisputably on the trial record." Commonwealth v. Keon
K., 70 Mass. App. Ct. 568, 573–574 (2007). We are not convinced
that this case falls within the exception.
It is not clear from the record how expert testimony would
have rebutted the evidence against the defendant. Indeed,
because the defendant did not raise this claim in a motion for
new trial, we have no affidavits or testimony from trial counsel
whether his acts or omissions were part of his trial strategy,
nor do we have an affidavit outlining what the testimony of a
putative expert would have been, and we do not have findings
from the trial judge as to the likely impact of this omission.
See Commonwealth v. Alicea, 464 Mass. 837, 850-851 (2013)
(ineffective assistance claim based on failure to call expert
"generally doomed" if not supported by expert's affidavit
disclosing content of potential testimony); Commonwealth v.
Adamides, 37 Mass. App. Ct. 339, 344 (1994) (when counsel fails
to call certain witnesses at trial, record alone provides
2 "insufficient factual basis for appellate review"). Because the
defendant's claim of ineffective assistance of counsel on direct
appeal fails to appear indisputably on the record, we decline to
resolve it.2
2. The prosecutor's closing argument. The defendant also
claims that the prosecutor made three material misstatements of
the evidence in her closing argument which requires a new trial.
We disagree.
The first claimed misstatement is that the prosecutor
improperly attributed the selection of the Casamigos tequila to
the defendant. As the defendant did not object to the
prosecutor's remark at trial, we review to determine if there
was error, and if so, whether it created a substantial risk of a
miscarriage of justice. See Commonwealth v. Desiderio, 491
Mass. 809, 815 (2023). There was no error.
2 In any event, we conclude that the omitted expert testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim). The jury convicted the defendant on a joint venture theory, suggesting that the presence of the defendant's own DNA on the victim's genitals was immaterial to that conviction. In addition, the defendant's counsel presented his DNA transfer theory through cross-examination of the Commonwealth's DNA experts, and argued it in his closing argument. Because "the jury were provided with essentially expert testimony on the subjects on which the defendant claims he needed expert opinion," Alicea, 464 Mass. at 851, there was no risk that justice miscarried.
3 The defendant claims that it was the female guests at the
nightclub who requested the Casamigos tequila. That much is
true. Nightclub personnel informed Kearvyn Arne, the
defendant's friend, that, given the number of people at the
table, Arne would have to purchase another bottle of alcohol.
Arne sent a text message to the defendant to ask what type of
alcohol he should purchase, because "the girls" wanted Casamigos
tequila while some of the defendant's friends preferred Hennessy
cognac. The defendant responded to Arne that, if he wanted "us
to hit," i.e., to have sex with the women, that Arne should
purchase the Casamigos because it was "more strong."
Accordingly, the defendant was involved in the selection of the
tequila, and the text messages revealed the reason why. There
was no misstatement.
The defendant next claims, also for the first time on
appeal, the prosecutor's argument improperly connected the
condoms in the defendant's bathroom to the rape. We disagree.
At trial, the victim testified that before the defendant
raped her, he "fidget[ed] with his hands and like sort of
open[ed] something up. [She could] tell he was taking out a
condom." The victim added that he was fidgeting with his hands
near his genital area. From this evidence, it was a reasonable
inference that the condom found in the defendant's bathroom
4 trash receptacle was connected to the rape. See Commonwealth v.
Francis, 450 Mass. 132, 142 (2007). After all, "inferences that
support a conviction 'need only be reasonable and possible;
[they] need not be necessary or inescapable.'" Commonwealth v.
Sabin, 104 Mass. App. Ct. 303, 305 (2024), quoting Commonwealth
v. Howe, 103 Mass. App. Ct. 354, 357 (2023). The inference the
prosecutor drew was proper.
Despite this, the defendant maintains that the argument was
nonetheless improper because an earring found in the trash with
the condoms did not belong to the victim. But this argument is
a non sequitur fallacy. It does not logically follow that
because one item in the trash was not connected to the rape, the
other items in the trash could not be connected to the rape.
There were a number of people at the "after party" in the
defendant's apartment, and the earing could easily have been
discarded by one of them or by someone on a different occasion.
There was no error, and thus, no risk that justice miscarried.
The defendant further claims the prosecutor unfairly argued
that the defendant removed the victim's underwear. The
defendant specifically objected to the prosecutor arguing that
"[t]he defendant helped [the victim] out of her clothes and
against her will." The defendant maintained that this implied
5 that he "ripped off her dress."3 On appeal, the defendant takes
a slightly different tack, claiming there was no evidentiary
support for the victim's claim that the defendant removed her
underwear because no underwear was ever recovered and she
arrived at the hospital not wearing any.
However, despite acknowledging the victim's testimony that
the defendant removed her underwear, the defendant nevertheless
claims that this was insufficient to provide an evidentiary
basis because it was not corroborated. As a result, he claims
the argument was inflammatory and an improper appeal to the
jury's sympathy. We disagree.
As a starting point, we note that in sexual assault cases,
the victim's testimony is "sufficient, standing alone, to
support a finding [of guilt] beyond a reasonable doubt."
Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).
If a victim's testimony alone is sufficient to support a finding
of guilt, it necessarily is sufficient to support a subsidiary
finding of fact upon which the prosecutor was entitled to rely
in her closing argument. More importantly, a prosecutor is
entitled to marshal the facts in evidence and any fair
inferences drawn from those facts, and to argue "forcefully for
3 Since the defendant timely objected, we review for prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
6 the defendant's conviction" (citation omitted). Commonwealth v.
Rutherford, 476 Mass. 639, 643 (2017). That is what was done
here. There was no error.4
3. Witness testimony. Finally, the defendant claims that
the testimony of witnesses who attended the party at the
defendant's apartment, including the victim, provided non-
probative and improper additional corroborative complaint
testimony. We disagree.5
"If independently admissible evidence, 'other than that
specifically and properly designated as first complaint
testimony, serves no purpose other than to repeat the fact of a
complaint and thereby corroborate the complainant's accusations,
it is inadmissible.'" Commonwealth v. Dargon, 457 Mass. 387,
399-400 (2010), quoting Commonwealth v. Arana, 453 Mass. 214,
229 (2009). "However, if that evidence does serve a purpose
4 This conclusion is buttressed by the judge's thoughtful and thorough instructions to the jury to rely on their own recollection of the evidence, and that closing arguments are not evidence. The judge also provided the jury with written copies of his instructions.
5 The defendant also takes issue with a portion of Theresa Barrera's first complaint testimony, who could not remember who called the police or what was said to the police. However, this was not subject to any objection, was brought out on cross- examination, and was collateral to the central issue at trial. The defendant merely mentions this portion of Barrera's testimony in his brief, and fails to claim, let alone explain, how he was prejudiced by this.
7 separate and apart from the first complaint doctrine, the judge
may admit it 'after careful balancing of the testimony's
probative and prejudicial value'" (citation omitted). Dargon,
supra at 400.
The victim properly testified to the circumstances of
sexual assault. Her testimony was clearly relevant and
probative to the defendant's trial on the indictments. It was
entirely proper for her to describe what happened, including
(without objection) that after the codefendant raped her, she
ran from the apartment, she was "freaking out" about what had
happened, and she was "yelling" to Theresa Barrera and Zuleyma
Calderon that the defendant and codefendant had "raped [her]."
See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010) (victim,
"as well as the first complaint witness, may testify to the
details of the complaint itself"). Moreover, "[e]vidence of a
victim's state of mind or behavior following a crime has long
been admissible if relevant to a contested issue in a case."
Commonwealth v. Aviles, 461 Mass. 60, 69 (2011), quoting Arana,
453 Mass. at 225. Given the victim's level of intoxication,
this evidence was admissible and relevant to her state of mind.
There was no error, and thus, no risk that justice miscarried.6
6 We further note that the defendant did not suffer any unfair prejudice by this testimony because he relied on discrepancies between it and the first complaint witness's
8 The defendant's remaining claim, that the testimony of
other witnesses provided improper additional corroborative
complaint evidence, is without merit. Zuleyma Calderon provided
relevant testimony regarding seeing the victim lying in the
defendant's bed, following the codefendant into the living room,
recording the scene on her cell phone, and showing the
codefendant's face in the video because she believed he had just
harmed the victim. Barrera and Calderon accompanied the victim
out of the apartment and put her in an Uber that took her home.
This testimony was relevant to how investigators identified the
codefendant, as well as how the victim left the apartment, and
it was not first complaint evidence.
The remaining witnesses, Kearvyn Arne, Hida Rahma, and
Julia Arnett, the Sexual Assault Nurse Examiner (SANE), are also
challenged by the defendant as having provided "backdoor first
complaint" testimony. However, the defendant's brief fails to
cite to the trial record to show which testimony was improper.
In this posture, the argument is waived. See Jeevanandam v.
Bharathan, 496 Mass. 103, 109 n.12 (2025); Mass. R. A. P.
16 (a) (9), as appearing in 481 Mass. 1628 (2019).
testimony as part of his defense. See McCoy, 456 Mass. at 850- 851.
9 Even if the claim was not waived, these witnesses did not
provide additional corroborative complaint testimony. Arne and
Rahma both testified as percipient witnesses to the events of
that evening. Arne testified to his interactions with the
defendant, planning the evening's events, and their text
messages from before and after the rape. All of this evidence
was relevant and probative of the defendant's guilt. Similarly,
Rahma testified to her night out with the victim at the
nightclub and meeting the defendant. This was relevant to
identifying him.
Relative to the SANE nurse, she testified to the collection
and analysis of the DNA evidence, as well as her physical
examination of the victim. This served the purpose of providing
necessary information related to the investigation of the
matter. The judge even instructed the jury that Arnett was not
offering an opinion on whether a sexual assault occurred. The
testimony of these witnesses was admissible for reasons other
10 than corroborating the victim's allegations, and there was no
abuse of discretion in admitting it in evidence.
Judgment affirmed.
By the Court (Meade, Hodgens & Allen, JJ.7),
Clerk
Entered: April 17, 2026.
7 The panelists are listed in order of seniority.