Commonwealth v. Bienvenido I. Lugo-Marchant.

• Court: Massachusetts Appeals Court
• Decided: February 14, 2025
• Docket: 23-P-1174
• Status: Unpublished

Opinion

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-1174

COMMONWEALTH

vs.

BIENVENIDO I. LUGO-MARCHANT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At a trial in the District Court, a jury found the

defendant guilty of indecent assault and battery on a person

over the age of fourteen, in violation of G. L. c. 265, § 13H,

based on an incident in which the defendant, a Lyft driver,

moved his hand up the leg of a passenger in his car. After the

close of the Commonwealth's case-in-chief, the defendant moved

for a required finding of not guilty, which the judge denied.

The defendant now appeals the judgment of conviction, arguing

that the evidence was insufficient, the Commonwealth's closing

argument was improper, and trial counsel rendered ineffective

assistance. We affirm. Discussion. 1. Motion for required finding of not guilty.

We consider "whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Here, the defendant argues there was insufficient evidence for a

reasonable jury to find his touching was "indecent." For a

defendant to be convicted of indecent assault and battery, the

Commonwealth must prove beyond a reasonable doubt that the

defendant "committed an intentional, unprivileged and indecent

touching of the victim." Commonwealth v. Lavigne, 42 Mass. App.

Ct. 313, 315 (1997), quoting Commonwealth v. Mosby, 30 Mass.

App. Ct. 181, 184 (1991).

Whether touching is indecent depends on "contemporary moral

values" and "common understanding and practices" (quotation and

citation omitted). Lavigne, 42 Mass. App. Ct. at 314. Indecent

touching may include the touching of private areas such as "the

breasts, abdomen, buttocks, thighs, and pubic area of a female."

Mosby, 30 Mass. App. Ct. at 184-185, quoting Commonwealth v. De

La Cruz, 15 Mass. App. Ct. 52, 59 (1982). The touching of

places on the body that are not considered "private areas" may

still "violate contemporary views of personal integrity and

2 privacy." Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307

(2005). "When evaluating evidence of alleged indecent behavior,

we consider all of the circumstances." Commonwealth v. Rosa, 62

Mass. App. Ct. 622, 626 (2004), quoting Commonwealth v.

Castillo, 55 Mass. App. Ct. 563, 566 (2002).

During the first Lyft ride, the defendant picked the victim

up at her home and dropped her off at her destination with no

issue. But the defendant was assigned to the victim's return

ride as well, and when he picked her up, about fifteen minutes

after dropping her off, he asked her to sit in the passenger

side back seat. He stated that he "like[ed] to see where [his]

passengers are." Though the defendant had not made this request

during the victim's first ride, she complied.

While the conversation started off casually, the defendant

soon began to ask questions a reasonable jury could have

considered to be sexual in nature. He asked the victim if she

was married or had a boyfriend and if she liked bananas, which

she interpreted as referring to male genitalia. The defendant

then began "massaging the lower part of [the victim's] leg" with

his hand and "gradually started moving up [her] . . . shin

[until] he got to about [her] knee. . . . Then he just kept

moving higher and higher." The defendant "got approximately

mid-thigh." Then, the defendant asked, "[C]an I keep going[?],"

3 and started to move his fingers, at which point the victim

jerked back and said, "no." Then, the defendant "slowly"

removed his hand from the victim and drove her home.

We conclude that there was sufficient evidence for a

reasonable jury to find that the defendant's touching was

indecent. In arriving at this conclusion, we consider the

context of the conversation with sexual undertones prior to the

touching, the fact that the victim was trapped in a moving

vehicle when the touching occurred, and the location of the

touching on the victim's thigh. There was no error.

2. Closing argument. The defendant asserts that the

prosecutor's closing argument impermissibly bolstered the

victim's credibility by (1) referring to her as "the victim,"

(2) stating that she had no reason to lie, (3) arguing that it

is common for victims of "these types of crimes" to "freeze" as

the victim did here, and (4) misrepresenting the degree of

certainty with which the victim's identification of the

defendant. Where, as here, the defendant did not object at

trial, we consider whether any error created a substantial risk

of miscarriage of justice. See Commonwealth v. Randolph, 438

Mass. 290, 297 (2002). We consider the challenged statements

"in the context of the entire argument, and in light of the

judge's instructions to the jury and the evidence at trial."

4 Commonwealth v. Robidoux, 450 Mass. 144, 162 (2007), quoting

Commonwealth v. Passley, 428 Mass. 832, 835 (1999).

The defendant first argues that the judge impermissibly

allowed the Commonwealth to refer to the complaining witness as

"the victim" in closing argument. While it is the "better

practice" not to use the term "victim," there is no rule

prohibiting its use. Commonwealth v. Cadet, 473 Mass. 173, 181

(2015). Here, on the defendant's motion, the judge prohibited

the term's use during the presentation of testimony but

specifically allowed the Commonwealth to use the term during

closing argument. The judge also specifically instructed the

jurors before closing arguments that the attorneys were not

witnesses and that only evidence admitted through witness

testimony and exhibits should be considered during their

deliberations. "We assume a certain degree of jury

sophistication (citation omitted)," Cadet, 473 Mass. at 181, so

we can assume the jury understood that the prosecutor was not

testifying that the complaining witness was in fact a victim but

rather asking the jury to find that she was a victim. Any error

in this regard created no substantial risk of miscarriage of

justice.

The defendant next argues that the prosecutor's statement

that the victim had "no motive to lie" or "to fabricate anything

5 against [the defendant]" was improper. However, "[t]here is no

categorical prohibition against suggestion by a prosecutor that

a prosecution witness has no motive to lie," particularly where

the defendant has attacked that witness's credibility.

Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 & n.5

(2008). Here, on cross-examination, the defendant questioned

the victim about why she did not call for help or resist, which

called her credibility into question, and so the Commonwealth

was permitted to make a fair response in closing argument. See

Commonwealth v. Smith, 450 Mass. 395, 408 (2008), cert. denied,

555 U.S. 893 (2008) (prosecutor permitted to make fair response

to attack on credibility of government witness). There was no

error.

The defendant further asserts that it was improper for the

prosecutor to state that "it's not uncommon for victims of these

types of crimes to freeze or panic." No evidence was admitted

of what is common or uncommon of victims of this type of crime,

and "a prosecutor should not . . . misstate the evidence or

refer to facts not in evidence" in closing argument.

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Although the

Commonwealth suggests that the prosecutor was permitted to call

on the jury to apply their common experiences to consider what

they may have done in a similar situation, "[t]he jury should

6 not be asked to put themselves 'in the shoes' of the victim."

Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011). Even so,

the prosecutor described the victim's response as "not uncommon"

only once during closing argument, and the judge gave the

specific instruction, described above, that closing arguments

are not evidence. We conclude that any error created no

substantial risk of miscarriage of justice.

The defendant finally argues that the prosecutor improperly

overstated the victim's degree of certainty about her

identification of the defendant. We are unpersuaded. The

prosecutor first stated that the victim said she was "pretty

sure" that the person she picked from the photo array was the

perpetrator. This was properly based on the detective's

testimony that the victim had said she was "pretty sure this

[]is him." The prosecutor next stated that the victim, despite

having sat behind the perpetrator, "was able to come [to the

police station] a week later, point to one picture out of the

eight, and say, that's him." Although this omitted the "pretty

sure" language, the prosecutor had just quoted that same

language a moment earlier. The prosecutor next stated,

accurately, that "[a]t no point was she confused about anyone

else in the array." The prosecutor finally stated (again

accurately) that, despite the victim's having been informed that

7 the perpetrator's photo might not be in the array, "she still

chose him," meaning the photo of the defendant. We are

confident that nothing in this argument misstated the evidence

or misled the jury about the victim's degree of certainty of her

identification of the defendant. Additionally, the judge gave

the jury extensive instructions on how to evaluate

identification testimony, including an instruction on how to

evaluate the witness's expressed degree of certainty. It was

within the purview of the jury to determine the weight of the

identification evidence. Thus, there was no error.

3. Ineffective assistance of counsel. The defendant

argues he was deprived of effective assistance because counsel

failed to (1) move to suppress the out-of-court identification

of the defendant from the photo array and (2) conduct his own

independent investigation of the case. To prevail on a claim of

ineffective assistance of trial counsel, a defendant must

establish that counsel's performance fell "measurably below that

which might be expected from an ordinary fallible lawyer" and

"likely deprived the defendant of an otherwise available,

substantial ground of defence." Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). "[T]he preferred method for raising a

claim of ineffective assistance of counsel is through a motion

for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810

8 (2006). Such a motion was not filed in this case. Instead, the

defendant appeals based on "the trial record alone[,] . . . the

weakest form of such a challenge because it is bereft of any

explanation by trial counsel for his actions." Commonwealth v.

Peloquin, 437 Mass. 204, 210 n.5 (2002).

Where an ineffective assistance claim is based on the

failure to file a motion to suppress, the defendant must

"demonstrate a likelihood that the motion to suppress would have

been successful." Commonwealth v. Comita, 441 Mass. 86, 91

(2004). For an out-of-court witness identification arranged by

police to be suppressed, the defendant must prove "by a

preponderance of the evidence, considering the totality of the

circumstances, that the identification is so unnecessarily

suggestive and conducive to irreparable misidentification that

its admission would deprive the defendant of his right to due

process." Commonwealth v. Walker, 460 Mass. 590, 599 (2011).

Here, the detective conducted the identification procedure

properly; among other things, he did not know the identity of

the suspect, he informed the victim that the wrongdoer may not

be in the photo array, and the photo array included seven filler

photos. See Walker, 460 Mass. at 604; Commonwealth v. Silva-

Santiago, 453 Mass. 782, 797 (2009). Because the defendant

failed to demonstrate that a motion to suppress would have been

9 successful, based on the record before us, we cannot say that

trial counsel performed deficiently by not filing such a motion.

See Saferian, 366 Mass. at 96.

Second, the defendant argues that counsel failed to conduct

an independent investigation of the case. See Commonwealth v.

Baker, 440 Mass. 519, 529 (2003) (counsel has duty to conduct

independent investigation of the facts). The defendant does not

point to any specific fact that might have been uncovered by

further investigation that could have benefited him. The record

before us does not include an affidavit from trial counsel or

any other evidence of failure to conduct an independent

investigation. Because the defendant has failed to establish

that counsel's performance was deficient, we need not reach the

prejudice prong of the Saferian analysis in order to reject, as

we do, the defendant's ineffective assistance claim.

Judgment affirmed.

By the Court (Meade, Sacks & Hodgens, JJ.1),

Clerk

Entered: February 14, 2025.

1 The panelists are listed in order of seniority.