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-782
COMMONWEALTH
vs.
BARRY FARRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a Superior Court jury on two indictments for
rape of a child aggravated by age difference, G. L. c. 265,
§ 23A (a), and two indictments for indecent assault and battery
on a child, G. L. c. 265, § 13B, the defendant appeals. He
argues that a substantial risk of a miscarriage of justice arose
from the prosecutor's closing argument, contending that the
prosecutor impermissibly appealed to sympathy, misstated
evidence, referred to facts not in evidence, and shifted the
burden of proof to the defendant. We affirm.
Background. We summarize the facts the jury could have
found based on the evidence at trial. When the victim was about
eight years old, she, her siblings, and their mother moved into an apartment that the victim's grandmother shared with her
husband, the defendant. The victim slept on the living-room
floor with her mother and siblings. The victim's aunt lived in
an apartment on the same hallway, and often fed the victim and
her siblings.
At that time, the victim loved her mother and wanted her
affection. However, her mother was not around very much; she
went out to "party" and left the victim and her siblings with
the grandmother and the defendant. The victim did not have
contact with her father or grandfather, and so the defendant was
the only male she saw regularly. The defendant became "like
[her] father." He took the victim places and helped her with
homework.
While the victim was in the defendant's bedroom watching
television, he would have her give him back rubs. The touchings
progressed, and eventually the defendant raped the victim by
penetrating her genital opening with his tongue and her vagina
with his penis, and indecently touched her by putting his hand
on her vaginal area and making her put her hand on his penis.
The touchings continued almost every day for years.
On June 19, 2014, when the victim was nine years old, the
aunt came to get her for dinner. The aunt opened the
defendant's bedroom door and saw the victim adjusting her
2 clothes and the defendant adjusting his shorts. The aunt took
the victim to her apartment, where the aunt spoke to the
victim's mother. The victim was anxious and kept using the
bathroom.
The aunt and the mother took the victim to a hospital where
she underwent an examination by a sexual assault nurse examiner
(SANE). At that point the victim had not had any sex education,
and no one had told her about good or bad touching. She
referred to her genitals as "my privacy" and to the defendant's
genitals as his "boy thing." The victim had not yet had her
first menstrual period, and so the SANE examined her genitals
only externally, because internal examination would be painful.
The victim's external genitals were within normal limits. A
different SANE testified as an expert that sexual activity does
not always leave scars or injuries; injuries are found in only
about three to five percent of SANE examinations of children who
report having been sexually assaulted, even though some cases
without injuries involve video evidence of the child being
penetrated.
Subsequent testing on a swab taken from the victim's lower
abdomen was positive for semenogelin, a component of sperm, and
amylase, a component of saliva. Semenogelin and saliva can be
transferred only when wet. Testing revealed that the
3 defendant's DNA matched the DNA profile of the semenogelin and
saliva.1
After the SANE examination, the victim's mother brought her
back to the defendant's apartment. About a year later, the
victim was placed in the custody of the Department of Children
and Families. At first, she wanted to go back to the mother's
custody, but then she "came to terms with how awful of a person
[the mother] is." She and her siblings were adopted by other
families. As of trial, the victim did not want to see or speak
to her mother or grandmother.
The defense presented its case through cross-examination of
the Commonwealth's witnesses and testimony of the defendant and
his wife, the victim's grandmother. The defendant denied that
he ever touched the victim inappropriately, but admitted that
she sometimes gave him back rubs. In closing, defense counsel
argued that the victim was not credible because of
inconsistencies in her statements, the lack of evidence of
injury, and the dearth of forensic evidence. From testimony
that the victim and the defendant used the same towels, and from
a DNA analyst's testimony about possible transfer, defense
1 The expected frequency of occurrence of the DNA profile is approximately one in 1,335 males, thus excluding 99.92 percent of the male population.
4 counsel argued that the defendant's DNA on the victim's lower
abdomen could have been transferred there from a towel.
The jury convicted the defendant of two indictments for
rape of a child aggravated by age difference, by putting his
tongue and his penis into the victim's genital opening, and two
indictments for indecent assault and battery on a child, by
putting his hand on the victim's vaginal area and by the victim
putting her hand on his penis.2 The defendant appeals.
Discussion. The defendant argues that in closing argument
the prosecutor committed misconduct by appealing to jurors'
sympathies, misstating evidence, referring to facts not in
evidence, and shifting the burden of proof to the defendant.
The defendant did not object to those comments at trial, and so
we review the closing argument to "determine whether there was
an error and, if so, whether the error created a substantial
risk of a miscarriage of justice." Commonwealth v. Kozubal, 488
Mass. 575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).
1. Appeal to sympathy. The defendant argues that the
prosecutor impermissibly appealed to sympathy by arguing that
the victim was "easy prey" who was vulnerable because "the only
2 The jury acquitted the defendant of two indictments charging rape of a child by force, G. L. c. 265, § 22A, and two charging indecent assault and battery on a child, G. L. c. 265, § 13B.
5 person that she really thought cared about her and loved her was
the defendant," and his attention was "the only love she knew."
Having carefully reviewed the prosecutor's closing argument, we
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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-782
COMMONWEALTH
vs.
BARRY FARRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a Superior Court jury on two indictments for
rape of a child aggravated by age difference, G. L. c. 265,
§ 23A (a), and two indictments for indecent assault and battery
on a child, G. L. c. 265, § 13B, the defendant appeals. He
argues that a substantial risk of a miscarriage of justice arose
from the prosecutor's closing argument, contending that the
prosecutor impermissibly appealed to sympathy, misstated
evidence, referred to facts not in evidence, and shifted the
burden of proof to the defendant. We affirm.
Background. We summarize the facts the jury could have
found based on the evidence at trial. When the victim was about
eight years old, she, her siblings, and their mother moved into an apartment that the victim's grandmother shared with her
husband, the defendant. The victim slept on the living-room
floor with her mother and siblings. The victim's aunt lived in
an apartment on the same hallway, and often fed the victim and
her siblings.
At that time, the victim loved her mother and wanted her
affection. However, her mother was not around very much; she
went out to "party" and left the victim and her siblings with
the grandmother and the defendant. The victim did not have
contact with her father or grandfather, and so the defendant was
the only male she saw regularly. The defendant became "like
[her] father." He took the victim places and helped her with
homework.
While the victim was in the defendant's bedroom watching
television, he would have her give him back rubs. The touchings
progressed, and eventually the defendant raped the victim by
penetrating her genital opening with his tongue and her vagina
with his penis, and indecently touched her by putting his hand
on her vaginal area and making her put her hand on his penis.
The touchings continued almost every day for years.
On June 19, 2014, when the victim was nine years old, the
aunt came to get her for dinner. The aunt opened the
defendant's bedroom door and saw the victim adjusting her
2 clothes and the defendant adjusting his shorts. The aunt took
the victim to her apartment, where the aunt spoke to the
victim's mother. The victim was anxious and kept using the
bathroom.
The aunt and the mother took the victim to a hospital where
she underwent an examination by a sexual assault nurse examiner
(SANE). At that point the victim had not had any sex education,
and no one had told her about good or bad touching. She
referred to her genitals as "my privacy" and to the defendant's
genitals as his "boy thing." The victim had not yet had her
first menstrual period, and so the SANE examined her genitals
only externally, because internal examination would be painful.
The victim's external genitals were within normal limits. A
different SANE testified as an expert that sexual activity does
not always leave scars or injuries; injuries are found in only
about three to five percent of SANE examinations of children who
report having been sexually assaulted, even though some cases
without injuries involve video evidence of the child being
penetrated.
Subsequent testing on a swab taken from the victim's lower
abdomen was positive for semenogelin, a component of sperm, and
amylase, a component of saliva. Semenogelin and saliva can be
transferred only when wet. Testing revealed that the
3 defendant's DNA matched the DNA profile of the semenogelin and
saliva.1
After the SANE examination, the victim's mother brought her
back to the defendant's apartment. About a year later, the
victim was placed in the custody of the Department of Children
and Families. At first, she wanted to go back to the mother's
custody, but then she "came to terms with how awful of a person
[the mother] is." She and her siblings were adopted by other
families. As of trial, the victim did not want to see or speak
to her mother or grandmother.
The defense presented its case through cross-examination of
the Commonwealth's witnesses and testimony of the defendant and
his wife, the victim's grandmother. The defendant denied that
he ever touched the victim inappropriately, but admitted that
she sometimes gave him back rubs. In closing, defense counsel
argued that the victim was not credible because of
inconsistencies in her statements, the lack of evidence of
injury, and the dearth of forensic evidence. From testimony
that the victim and the defendant used the same towels, and from
a DNA analyst's testimony about possible transfer, defense
1 The expected frequency of occurrence of the DNA profile is approximately one in 1,335 males, thus excluding 99.92 percent of the male population.
4 counsel argued that the defendant's DNA on the victim's lower
abdomen could have been transferred there from a towel.
The jury convicted the defendant of two indictments for
rape of a child aggravated by age difference, by putting his
tongue and his penis into the victim's genital opening, and two
indictments for indecent assault and battery on a child, by
putting his hand on the victim's vaginal area and by the victim
putting her hand on his penis.2 The defendant appeals.
Discussion. The defendant argues that in closing argument
the prosecutor committed misconduct by appealing to jurors'
sympathies, misstating evidence, referring to facts not in
evidence, and shifting the burden of proof to the defendant.
The defendant did not object to those comments at trial, and so
we review the closing argument to "determine whether there was
an error and, if so, whether the error created a substantial
risk of a miscarriage of justice." Commonwealth v. Kozubal, 488
Mass. 575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).
1. Appeal to sympathy. The defendant argues that the
prosecutor impermissibly appealed to sympathy by arguing that
the victim was "easy prey" who was vulnerable because "the only
2 The jury acquitted the defendant of two indictments charging rape of a child by force, G. L. c. 265, § 22A, and two charging indecent assault and battery on a child, G. L. c. 265, § 13B.
5 person that she really thought cared about her and loved her was
the defendant," and his attention was "the only love she knew."
Having carefully reviewed the prosecutor's closing argument, we
conclude that her comments about the victim's vulnerability were
"strongly worded but not unfair descriptions of the facts."
Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 623 (2018). See
Commonwealth v. Pontes, 402 Mass. 311, 316 (1988) (prosecutor's
repeatedly referring to multiple rapes by two defendants as
"degrading" was "fair characterization of the evidence," and
jurors' resulting sympathy was "understandable but
unavoidable"). The comment about the defendant's being "the
only love [the victim] knew" was hyberbolic, but excusably so.
See Commonwealth v. Huang, 489 Mass. 162, 181 (2022).
2. Misstating evidence. The defendant contends that the
prosecutor misstated evidence when she asked the jury "doesn't
it make sense" that no evidence of injury was found on the
victim's external genitals because "if you do it over and over
and over again, your body becomes accustomed to it. Like if you
play the guitar and your fingers get red, but over time that
stops happening." That argument was apparently an attempt at
arguing the victim's credibility through commonsense logic. The
problem was that the argument contradicted the testimony of the
Commonwealth's expert SANE, who opined that the number of times
6 a patient has had sexual intercourse would not affect the
likelihood of finding physical injuries.
We agree with the defendant that the prosecutor's analogy
to a guitarist's fingertip callouses was not grounded in the
evidence, but we conclude that it did not give rise to a
substantial risk of a miscarriage of justice. The evidence was
undisputed that the SANE examination showed that the victim's
external genitals were "within normal limits." The victim's
testimony did not give rise to any inference that the defendant
caused any bruising or scarring: she testified that the
defendant's touchings made her feel "[g]ood" and "[her] body
liked it." For the prosecutor to contradict her own expert's
testimony would not have helped the Commonwealth's case.
3. Facts not in evidence. The defendant contends that the
prosecutor argued facts not in evidence when she asked the jury
if it "ma[d]e sense" that "an eight or nine year old child who
calls her body part a privacy and a bum, and doesn't even know
what they're actually called, would know the intimate details of
how intercourse occurs."
Again, the prosecutor's argument was apparently an attempt
at arguing the victim's credibility through commonsense logic.
The problem was that there was no evidence that a child's
referring to body parts with childish words, as opposed to
7 clinical terms -- or, for that matter, obscenities -- would
correlate with knowledge of specific sex acts. See Commonwealth
v. Beaudry, 445 Mass. 577, 581 (2005) (record did not show that
assumption that young children are unaware of sexual acts and
terminology "remains valid today"). Even so, we conclude that
the argument did not give rise to a substantial risk of a
miscarriage of justice. The victim's detailed testimony about
the sexual assaults was corroborated by her aunt's discovery of
the victim and the defendant in the bedroom and the evidence of
the defendant's DNA in sperm and saliva on her lower abdomen.
The defendant contends that the argument did cause
substantial risk of a miscarriage of justice because the
prosecutor knew "that there were likely alternative reasons for
[the victim] to have that knowledge," including her having
watched pornography and had sexual contact with another male
relative. From the record before us, we cannot conclude that
there was any such evidence. Relying on cases including
Commonwealth v. Michalski, 95 Mass. App. Ct. 520, 524 & n.2
(2019), the Commonwealth moved in limine to preclude the defense
from introducing evidence that the defendant told police that he
had seen the victim watching pornography, and that she probably
was molested by another male staying in the apartment. The
judge ruled, "I will wait [until] the issue comes up during
8 trial. If it does, and . . . there's an objection, I will rule
on it in context." During trial, defense counsel asked the
victim on cross-examination if she knew several other males, by
name, saying that each of them had lived in the apartment or
spent time there; the victim replied that she did not remember
those males. The defendant never sought to introduce evidence
that the victim had watched pornography or been molested by
another male. We cannot conclude from this record that there
was any such evidence.
4. Burden shifting.3 Finally, the defendant argues that
the prosecutor shifted the burden of proof by asking the jury,
"What benefit did [the victim] have from saying what the
defendant did to her for years?" The prosecutor asked that
question immediately after arguing that the victim did not have
a motive to lie because her disclosure of sexual abuse resulted
in her being taken away from her family, which she did not want.
"Contrary to the defendant's broadest contention, there is
no categorical prohibition against suggestion by a prosecutor
3 Although the defendant contends that he objected to the prosecutor's closing argument on grounds that it shifted the burden, he did so only as to the prosecution's suggestion that he had an obligation to speak to the police -- an argument he does not pursue on appeal. Consequently, we review the defendant's burden-shifting argument for a substantial risk of a miscarriage of justice. See Kozubal, 488 Mass. at 590.
9 that a prosecution witness has no motive to lie." Commonwealth
v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). The prosecutor's
argument came in response to defense counsel's argument that the
victim "had a tumultuous childhood" and during "a very difficult
time for her" she "tended to make things up." Thus, the
prosecutor's rejection of the victim's alleged motive to lie was
grounded in the evidence. Id. at 180. We similarly conclude
that the prosecutor permissibly argued from the evidence that
the defendant had the opportunity to sexually assault the
victim, the grandmother was not credible when she testified that
the victim was in bed with the defendant because the victim had
migraines, and the jury should use their common sense in
assessing the defense theory that the victim wiped the
defendant's bodily fluids on her abdomen with a towel. There
was no burden shifting.
Judgments affirmed.
By the Court (Singh, Grant & Tan, JJ.4),
Clerk
Entered: February 20, 2026.
4 The panelists are listed in order of seniority.