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-1540
COMMONWEALTH
vs.
CORY B. ALVAREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
appeals from his conviction on an indictment charging aggravated
rape of a child (by age difference). We affirm.
We disagree with the defendant's contention that the
Commonwealth presented insufficient evidence of penetration to
satisfy the element of "sexual intercourse" under G. L. c. 265,
§ 23A. Viewing the evidence in a light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), jurors could infer penetration from the following: (1)
the victim testified that the defendant removed her clothes in
his room, was "on my body" on the bed, and "raped" her; (2) she
further testified that after leaving the defendant's room she showered and changed clothes; (3) an examining nurse testified
that the victim reported "penile/vaginal penetration" and
interior bleeding, received medications as prophylaxes,
underwent a swabbing of her genital opening including the labia,
and reported pain from the swabbing of the inner part of her
labia; and (4) a forensic scientist testified that the swabs
contained the defendant's deoxyribonucleic acid (DNA) profile.
We are disinclined to say that a rape victim must testify
using particular words and note that the victim's testimony that
she was "raped" allows for a reasonable inference of
penetration. See Commonwealth v. Sherman, 451 Mass. 332, 336,
337 (2008) (rape not merely legal term, but "act whose widely
known common meaning implies sexual intercourse"); Commonwealth
v. Santos, 100 Mass. App. Ct. 1, 6 (2021) (conviction may be
supported by "victim's testimony alone"). Even in the absence
of victim testimony naming specific body parts, "[p]enetration
can be inferred from circumstantial evidence," Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000), as has been presented here
through the victim's immediate effort to shower and change
clothes, the examination where she disclosed "penile/vaginal
penetration" with internal bleeding and received concomitant
medical care, and the presence of the defendant's DNA around her
genital opening including the labia. See Commonwealth v.
2 Centeno, 87 Mass. App. Ct. 564, 567 (2015) (penetration may be
established by evidence that the defendant "touched or came into
contact with the victim's vagina, vulva, or labia"). Neither
contradictory evidence nor competing inferences render the
evidence insufficient. Once evidence is presented to permit any
rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt, Latimore, 378 Mass. at 677, "it
is for the fact finder alone to determine what weight will be
accorded the evidence." Commonwealth v. Plouffe, 52 Mass. App.
Ct. 543, 545 (2001).
Contrary to the defendant's next claim, the judge did not
abuse his discretion, Commonwealth v. Aviles, 461 Mass. 60, 73
(2011), by admitting, over objection, first complaint testimony
of the victim's father that did not mirror the victim's
testimony. The first complaint doctrine "permit[s] some
discrepancy" between the testimony of the victim and the first
complaint witness and does not require "complete congruence."
Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 586 (2013).
First complaint testimony "need not replicate precisely the
victim's own testimony," and some inconsistency is expected and
will often aid a jury in evaluating the evidence. Commonwealth
v. King, 445 Mass. 217, 235 (2005). Here, the father testified
to a report that the defendant "forced her to go into the room,"
3 "removed her clothes," "sucked on her breast," and "had sex with
her," while the victim testified that the defendant "told me to
go" to the room, "had me remove my clothes", and "did something
bad, like rape me." The victim also gestured toward her breast
when testifying without stating what the defendant did. These
discrepancies are not unexpected, particularly where the teenage
victim presented, as the judge noted, as "limited," and where
the victim candidly acknowledged that she did not "know the
parts of [her] body." Given the victim's evident limitations
and the judge's repeated instructions on the narrow,
corroborative boundaries of first complaint testimony, jurors
could fairly determine "whether the [first] complaint testimony
ultimately support[ed]" the victim's testimony. King, 445 Mass.
at 235. Thus, we discern no abuse of discretion by the judge.
Testimony of the nurse and the admission of the victim's
medical examination records did not amount to an error creating
a "substantial risk of a miscarriage of justice." Commonwealth
v. Freeman, 352 Mass. 556, 564 (1967). The nurse properly
testified to the victim's statements that were made for the
purpose of diagnosis and treatment. See Commonwealth v.
Comtois, 399 Mass. 668, 675 (1987) (physician properly testified
that rape victims "described what they believed to have
happened"). Unlike in Commonwealth v. Rodriguez, 484 Mass. 677,
4 682 (2020), on which the defendant relies, the victim's
statements here were not "for purely legal purposes" but for
diagnosis and treatment. Likewise, there was no error in
admitting the form the nurse prepared that also reflected the
victim's statements for the purpose of diagnosis and treatment.
See Commonwealth v. Dargon, 457 Mass. 387, 394 (2010) (form
prepared by nurse properly admitted even if it had some bearing
on question of liability). See also Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2 (2009) (right to confront
witnesses not implicated by "medical reports created for
treatment purposes"). Contrast Commonwealth v. Jones, 472 Mass.
707, 711 (2015) (constitutional right to confront witnesses
barred evidence of rape kit where nurse who collected evidence
did not testify).
For the first time, the defendant challenges the DNA
testimony offered by the forensic scientist as "inadmissible
under Daubert-Lanigan." A challenge to the reliability of
evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15
(1994), however, cannot be made for the first time on appeal.
Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694 (2015).
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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-1540
COMMONWEALTH
vs.
CORY B. ALVAREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
appeals from his conviction on an indictment charging aggravated
rape of a child (by age difference). We affirm.
We disagree with the defendant's contention that the
Commonwealth presented insufficient evidence of penetration to
satisfy the element of "sexual intercourse" under G. L. c. 265,
§ 23A. Viewing the evidence in a light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), jurors could infer penetration from the following: (1)
the victim testified that the defendant removed her clothes in
his room, was "on my body" on the bed, and "raped" her; (2) she
further testified that after leaving the defendant's room she showered and changed clothes; (3) an examining nurse testified
that the victim reported "penile/vaginal penetration" and
interior bleeding, received medications as prophylaxes,
underwent a swabbing of her genital opening including the labia,
and reported pain from the swabbing of the inner part of her
labia; and (4) a forensic scientist testified that the swabs
contained the defendant's deoxyribonucleic acid (DNA) profile.
We are disinclined to say that a rape victim must testify
using particular words and note that the victim's testimony that
she was "raped" allows for a reasonable inference of
penetration. See Commonwealth v. Sherman, 451 Mass. 332, 336,
337 (2008) (rape not merely legal term, but "act whose widely
known common meaning implies sexual intercourse"); Commonwealth
v. Santos, 100 Mass. App. Ct. 1, 6 (2021) (conviction may be
supported by "victim's testimony alone"). Even in the absence
of victim testimony naming specific body parts, "[p]enetration
can be inferred from circumstantial evidence," Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000), as has been presented here
through the victim's immediate effort to shower and change
clothes, the examination where she disclosed "penile/vaginal
penetration" with internal bleeding and received concomitant
medical care, and the presence of the defendant's DNA around her
genital opening including the labia. See Commonwealth v.
2 Centeno, 87 Mass. App. Ct. 564, 567 (2015) (penetration may be
established by evidence that the defendant "touched or came into
contact with the victim's vagina, vulva, or labia"). Neither
contradictory evidence nor competing inferences render the
evidence insufficient. Once evidence is presented to permit any
rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt, Latimore, 378 Mass. at 677, "it
is for the fact finder alone to determine what weight will be
accorded the evidence." Commonwealth v. Plouffe, 52 Mass. App.
Ct. 543, 545 (2001).
Contrary to the defendant's next claim, the judge did not
abuse his discretion, Commonwealth v. Aviles, 461 Mass. 60, 73
(2011), by admitting, over objection, first complaint testimony
of the victim's father that did not mirror the victim's
testimony. The first complaint doctrine "permit[s] some
discrepancy" between the testimony of the victim and the first
complaint witness and does not require "complete congruence."
Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 586 (2013).
First complaint testimony "need not replicate precisely the
victim's own testimony," and some inconsistency is expected and
will often aid a jury in evaluating the evidence. Commonwealth
v. King, 445 Mass. 217, 235 (2005). Here, the father testified
to a report that the defendant "forced her to go into the room,"
3 "removed her clothes," "sucked on her breast," and "had sex with
her," while the victim testified that the defendant "told me to
go" to the room, "had me remove my clothes", and "did something
bad, like rape me." The victim also gestured toward her breast
when testifying without stating what the defendant did. These
discrepancies are not unexpected, particularly where the teenage
victim presented, as the judge noted, as "limited," and where
the victim candidly acknowledged that she did not "know the
parts of [her] body." Given the victim's evident limitations
and the judge's repeated instructions on the narrow,
corroborative boundaries of first complaint testimony, jurors
could fairly determine "whether the [first] complaint testimony
ultimately support[ed]" the victim's testimony. King, 445 Mass.
at 235. Thus, we discern no abuse of discretion by the judge.
Testimony of the nurse and the admission of the victim's
medical examination records did not amount to an error creating
a "substantial risk of a miscarriage of justice." Commonwealth
v. Freeman, 352 Mass. 556, 564 (1967). The nurse properly
testified to the victim's statements that were made for the
purpose of diagnosis and treatment. See Commonwealth v.
Comtois, 399 Mass. 668, 675 (1987) (physician properly testified
that rape victims "described what they believed to have
happened"). Unlike in Commonwealth v. Rodriguez, 484 Mass. 677,
4 682 (2020), on which the defendant relies, the victim's
statements here were not "for purely legal purposes" but for
diagnosis and treatment. Likewise, there was no error in
admitting the form the nurse prepared that also reflected the
victim's statements for the purpose of diagnosis and treatment.
See Commonwealth v. Dargon, 457 Mass. 387, 394 (2010) (form
prepared by nurse properly admitted even if it had some bearing
on question of liability). See also Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2 (2009) (right to confront
witnesses not implicated by "medical reports created for
treatment purposes"). Contrast Commonwealth v. Jones, 472 Mass.
707, 711 (2015) (constitutional right to confront witnesses
barred evidence of rape kit where nurse who collected evidence
did not testify).
For the first time, the defendant challenges the DNA
testimony offered by the forensic scientist as "inadmissible
under Daubert-Lanigan." A challenge to the reliability of
evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15
(1994), however, cannot be made for the first time on appeal.
Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694 (2015).
"Because this claim is being raised for the first time on
appeal, it is waived." Id. Also, in the absence of a fully
5 developed evidentiary record necessary for a Daubert-Lanigan
analysis, the defendant has not shown that there was any error,
let alone one creating a substantial risk of a miscarriage of
justice.
Finally, we discern no errors from the prosecutor's closing
argument. The prosecutor did not refer to first complaint
testimony for an improper purpose and simply asked jurors to
"consider those statements that she made on that day in light of
what she told you here in her testimony." Also, the prosecutor
did not misstate the DNA evidence. The forensic scientist
testified that "Fraction 2 would be the potential sperm cells"
and that the defendant's DNA was "included" in this sample. The
prosecutor argued, "And this defendant's profile was included in
that second fraction, Fraction 2, which she told you was the
sperm fraction." The prosecutor essentially asked jurors to
infer that the defendant's DNA came from sperm cells and to
infer that his "penis touched her vagina" -- inferences that
were possible but not inescapable based on the testimony that
the sample tested contained "potential" sperm cells. The
argument did not misstate the evidence, see Commonwealth v.
Niemic, 483 Mass. 571, 592 (2019) ("prosecutor may argue
reasonable inferences to be drawn from the evidence"), and the
judge repeatedly instructed jurors, during the prosecutor's
6 argument and in the final charge, that the arguments do not
constitute evidence.
Judgment affirmed.
By the Court (Sacks, Hodgens & Toone, JJ.1),
Clerk
Entered: June 11, 2026.
1 The panelists are listed in order of seniority.