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-341
COMMONWEALTH
vs.
JORGE A. CASTILLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the
defendant, Jorge A. Castillo, was convicted of five counts of
indecent assault and battery on a child under fourteen, in
violation of G. L. c. 265, § 13B, and intimidation of a witness,
in violation of G. L. c. 268, § 13B.1 On appeal, the defendant
claims that the judge abused his discretion by permitting the
victim to testify that the defendant had abused her on multiple
1The defendant was acquitted on one additional charge of indecent assault and battery on a child under fourteen. The defendant was also charged with two counts of aggravated rape and abuse of a child, in violation of G. L. c. 265, § 23A (a), and one count of open and gross behavior in violation of G. L. c. 272, § 16. The jury could not reach a verdict as to those charges, and the judge declared a mistrial as to each of them. After the defendant was convicted and sentenced, the Commonwealth filed a nolle prosequi as to those charges. prior occasions, and that the prosecutor's closing argument
exceeded the bounds of proper argument. We affirm.
Background. We summarize the facts the jury could have
found and reserve certain details for later discussion. From
2013 to 2015, the defendant's girlfriend babysat for her aunt's
children, the two victims whom we shall call J.S. and C.S., once
or twice a week at the home she shared with the defendant. J.S.
was between ten and twelve years old during this time, and C.S.
was between eleven and thirteen.
On one occasion, J.S. was at the defendant's home when she
came in from playing outside to get something from the kitchen.
While she stood at the refrigerator, the defendant came up from
behind her and touched her vaginal area over her clothing. J.S.
said she should go back outside, and the defendant told her not
to tell anyone in her family. J.S. agreed and walked out. On
three other occasions, the defendant sexually assaulted J.S.
when they were alone in the master bedroom of the home. Once,
the defendant touched J.S.'s breasts while forcing his penis
into her mouth while she sat on a "baby bed." On another
occasion, the defendant sat down on his bed and put his penis in
J.S.'s mouth. And another time, J.S. stood next to the
defendant as he made her touch his penis before he masturbated
next to her. Each time J.S. left the bedroom, the defendant
told her not to tell anyone in her family.
2 During the same time period, J.S. accompanied the defendant
when he drove to pick up his son from soccer practice. On the
way, the defendant pulled the car into a parking lot, parked,
and, while she sat in the passenger seat, touched J.S.'s vagina
and forced her to touch his penis. Again, the defendant told
J.S. not to tell anyone.
At some point, J.S. told her younger sister, C.S., how the
defendant had touched her, and the two agreed that they would
not leave each other alone with the defendant going forward.2 A
few years later, when she was fifteen, J.S. told her mother and
father and asked them not to inform the police about the abuse,
and they agreed not to do so.
Two years later, when J.S. was seventeen, she reported the
abuse to the police herself. This disclosure followed a party
at J.S.'s parents' home, where a guest's dog bit the defendant's
daughter. The defendant was not at the party, but after
learning what happened, he drove to J.S.'s parents' home and
told them that he was going to call the police. An argument
ensued, and as noted, J.S. told the police about the defendant's
conduct. Thereafter, the defendant consented to an interview
2 C.S. also testified that while she was alone with the defendant in the living room of the home, the defendant touched her breasts. For this incident, the defendant was charged with indecent assault and battery on a child under fourteen, in violation of G. L. c. 265 § 13B, but the jury found him not guilty. See note 1, supra.
3 which occurred at the Amherst police department. The defendant
denied any wrongdoing but acknowledged that he would play
outside with J.S. and C.S., and "grab" or "spin" them.
Discussion. 1. Uncharged prior bad acts. The defendant
contends that the judge abused his discretion by allowing the
Commonwealth to solicit testimony from J.S. that the defendant
sexually assaulted her on several other occasions. We are not
persuaded that the evidence at issue unduly prejudiced the
defendant and further conclude that the testimony did not, as
the defendant claims, amount to improper character evidence.
Prior to trial, the prosecutor filed a motion in limine
seeking to introduce testimony that the defendant sexually
assaulted J.S. on fifteen to twenty additional occasions. The
defendant opposed the motion, and, after a hearing, the judge
initially reserved ruling pending the start of trial, at which
time, he allowed the Commonwealth's motion to admit J.S.'s
testimony. He reasoned that since the uncharged acts were not
too remote in time and were between the same parties, the
evidence was relevant to show the defendant's intent and the
relationship between the parties. The defense requested, and
the judge gave, instructions limiting the jury's consideration
of this evidence both at the time J.S. testified about the prior
acts of sexual abuse and in the judge's final instructions to
the jury.
4 "It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved . . . for
the purposes of showing his bad character or propensity to
commit the crime charged" (citation omitted). Commonwealth v.
Morgan, 460 Mass. 277, 289 (2011). See Mass. G. Evid. § 404(b)
(2021). However, the prosecution may introduce that same
evidence for other valid reasons, including to show intent or
the relationship between the parties, so long as its probative
value is not outweighed by the danger of unfair prejudice. See
Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998).
The defendant argues that J.S.'s testimony was marginally
probative as it did not have "specifics attached to it." This
argument is not availing. Trial judges are encouraged to limit
prior bad act testimony to establishing in "summary fashion" any
uncharged evidence of abuse. Commonwealth v. Dwyer, 448 Mass.
122, 130 (2006). In addition, "[t]he case law is particularly
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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-341
COMMONWEALTH
vs.
JORGE A. CASTILLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the
defendant, Jorge A. Castillo, was convicted of five counts of
indecent assault and battery on a child under fourteen, in
violation of G. L. c. 265, § 13B, and intimidation of a witness,
in violation of G. L. c. 268, § 13B.1 On appeal, the defendant
claims that the judge abused his discretion by permitting the
victim to testify that the defendant had abused her on multiple
1The defendant was acquitted on one additional charge of indecent assault and battery on a child under fourteen. The defendant was also charged with two counts of aggravated rape and abuse of a child, in violation of G. L. c. 265, § 23A (a), and one count of open and gross behavior in violation of G. L. c. 272, § 16. The jury could not reach a verdict as to those charges, and the judge declared a mistrial as to each of them. After the defendant was convicted and sentenced, the Commonwealth filed a nolle prosequi as to those charges. prior occasions, and that the prosecutor's closing argument
exceeded the bounds of proper argument. We affirm.
Background. We summarize the facts the jury could have
found and reserve certain details for later discussion. From
2013 to 2015, the defendant's girlfriend babysat for her aunt's
children, the two victims whom we shall call J.S. and C.S., once
or twice a week at the home she shared with the defendant. J.S.
was between ten and twelve years old during this time, and C.S.
was between eleven and thirteen.
On one occasion, J.S. was at the defendant's home when she
came in from playing outside to get something from the kitchen.
While she stood at the refrigerator, the defendant came up from
behind her and touched her vaginal area over her clothing. J.S.
said she should go back outside, and the defendant told her not
to tell anyone in her family. J.S. agreed and walked out. On
three other occasions, the defendant sexually assaulted J.S.
when they were alone in the master bedroom of the home. Once,
the defendant touched J.S.'s breasts while forcing his penis
into her mouth while she sat on a "baby bed." On another
occasion, the defendant sat down on his bed and put his penis in
J.S.'s mouth. And another time, J.S. stood next to the
defendant as he made her touch his penis before he masturbated
next to her. Each time J.S. left the bedroom, the defendant
told her not to tell anyone in her family.
2 During the same time period, J.S. accompanied the defendant
when he drove to pick up his son from soccer practice. On the
way, the defendant pulled the car into a parking lot, parked,
and, while she sat in the passenger seat, touched J.S.'s vagina
and forced her to touch his penis. Again, the defendant told
J.S. not to tell anyone.
At some point, J.S. told her younger sister, C.S., how the
defendant had touched her, and the two agreed that they would
not leave each other alone with the defendant going forward.2 A
few years later, when she was fifteen, J.S. told her mother and
father and asked them not to inform the police about the abuse,
and they agreed not to do so.
Two years later, when J.S. was seventeen, she reported the
abuse to the police herself. This disclosure followed a party
at J.S.'s parents' home, where a guest's dog bit the defendant's
daughter. The defendant was not at the party, but after
learning what happened, he drove to J.S.'s parents' home and
told them that he was going to call the police. An argument
ensued, and as noted, J.S. told the police about the defendant's
conduct. Thereafter, the defendant consented to an interview
2 C.S. also testified that while she was alone with the defendant in the living room of the home, the defendant touched her breasts. For this incident, the defendant was charged with indecent assault and battery on a child under fourteen, in violation of G. L. c. 265 § 13B, but the jury found him not guilty. See note 1, supra.
3 which occurred at the Amherst police department. The defendant
denied any wrongdoing but acknowledged that he would play
outside with J.S. and C.S., and "grab" or "spin" them.
Discussion. 1. Uncharged prior bad acts. The defendant
contends that the judge abused his discretion by allowing the
Commonwealth to solicit testimony from J.S. that the defendant
sexually assaulted her on several other occasions. We are not
persuaded that the evidence at issue unduly prejudiced the
defendant and further conclude that the testimony did not, as
the defendant claims, amount to improper character evidence.
Prior to trial, the prosecutor filed a motion in limine
seeking to introduce testimony that the defendant sexually
assaulted J.S. on fifteen to twenty additional occasions. The
defendant opposed the motion, and, after a hearing, the judge
initially reserved ruling pending the start of trial, at which
time, he allowed the Commonwealth's motion to admit J.S.'s
testimony. He reasoned that since the uncharged acts were not
too remote in time and were between the same parties, the
evidence was relevant to show the defendant's intent and the
relationship between the parties. The defense requested, and
the judge gave, instructions limiting the jury's consideration
of this evidence both at the time J.S. testified about the prior
acts of sexual abuse and in the judge's final instructions to
the jury.
4 "It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved . . . for
the purposes of showing his bad character or propensity to
commit the crime charged" (citation omitted). Commonwealth v.
Morgan, 460 Mass. 277, 289 (2011). See Mass. G. Evid. § 404(b)
(2021). However, the prosecution may introduce that same
evidence for other valid reasons, including to show intent or
the relationship between the parties, so long as its probative
value is not outweighed by the danger of unfair prejudice. See
Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998).
The defendant argues that J.S.'s testimony was marginally
probative as it did not have "specifics attached to it." This
argument is not availing. Trial judges are encouraged to limit
prior bad act testimony to establishing in "summary fashion" any
uncharged evidence of abuse. Commonwealth v. Dwyer, 448 Mass.
122, 130 (2006). In addition, "[t]he case law is particularly
clear that evidence of uncharged sexual misconduct, when not too
remote in time, 'is competent to prove an inclination to commit
the [acts] charged . . . and is relevant to show the probable
existence of the same passion or emotion at the time in issue.'"
Hanlon, Mass. App. Ct. at 817, quoting Commonwealth v. King, 387
Mass. 464, 470 (1982). Here, the evidence was particularly
relevant on the question of the defendant's intent in light of
the defendant's statements to police that any physical contact
5 with J.S. was incidental to him playing with, or "spin[ning],"
J.S. outside.
The defendant also claims that, even if the testimony was
relevant, its probative value was outweighed by its potential
for prejudice. We disagree. "Evidence is unfairly prejudicial
only if it has an undue tendency to suggest decision on an
improper basis . . . [including] an emotional one."
Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 403 (2022)
(quotation and citation omitted). Here, the judge gave a
limiting instruction after J.S.'s testimony and again at the
close of trial, "thereby minimizing any prejudicial effect."3
Commonwealth v. Forte, 469 Mass. 469, 480 (2014). In addition,
the jury was unable to reach a verdict on three separate
offenses and "acquitted the defendant of [one] offense[],
'demonstrat[ing] a careful consideration of the evidence.'"
Foreman, supra, quoting Commonwealth v. Dorazio, 472 Mass. 535,
543 (2015). Given these circumstances, we conclude that the
probative value of J.S.'s testimony was not outweighed by any
prejudicial effect.
2. The prosecutor's closing argument. Next, the defendant
contends that the prosecutor's description of the home where the
3 "We presume that the jury followed the judge's instructions." Commonwealth v. Henley, 488 Mass. 95, 125 (2021).
6 defendant sexually assaulted J.S. as a "house of horrors," was
improper and "undeniabl[y] . . . impact[ed] the jury's verdict."
Because the defendant did not object at trial, we review to
determine whether any error created a substantial risk of a
miscarriage of justice. See Commonwealth v. Desiderio, 491
Mass. 809, 815 (2023). The standard calls for "us to determine
'if we have a serious doubt whether the result of the trial
might have been different had the error not been made'"
(citation omitted).4 Id. at 815-816. Taken in context, the
comment at issue amounted to a permissible comment about the
extent to which the defendant's sexual abuse impacted the time
J.S. was at the home. See Commonwealth v. Phillips, 495 Mass.
491, 499 (2025) ("describing the shooting as a 'monstrous crime'
did not cross the line between fair and improper argument");
Commonwealth v. Alemany, 488 Mass. 499, 512 (2021) (description
of alleged crimes as "part of a 'horror story'" not improper).
The jury heard evidence of the defendant sexually assaulting
J.S. and C.S. in his home over the course of two years.
Describing that home as a "house of horrors" was inherent to
"'the odious . . . nature of the crime[s]' [themselves]."
Phillips, supra, quoting Commonwealth v. Lyons, 426 Mass. 466,
4 We also note that the absence of an objection from trial counsel is some indication that, in context, the prosecutor's words were more innocuous than now argued. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995).
7 472 (1998). Moreover, the judge instructed the jurors twice
that closing arguments are not evidence, mitigating the risk of
any prejudice to the defendant. See Commonwealth v. Santana,
477 Mass. 610, 628 (2017). While the comment was better left
unsaid, we are not persuaded it goes beyond "tolerable
hyperbole."5 Commonwealth v. Pearce, 427 Mass. 642, 645 (1998),
quoting Commonwealth v. Hartford, 425 Mass. 378, 381 (1997).
Judgments affirmed.
By the Court (Vuono, Desmond & Toone, JJ.6),
Clerk
Entered: November 20, 2025.
5 We have long warned the Commonwealth and its prosecutors to abide by their "stricter standard of conduct" when making closing arguments. Commonwealth v. Kozec, 399 Mass. 514, 519 (1987). We do not condone the prosecutor's comment. We hold only that it did not create a substantial risk of a miscarriage of justice.
6 The panelists are listed in order of seniority.