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
21-P-257
COMMONWEALTH
vs.
JOSEPH ELIBERT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Superior Court, a jury found the
defendant, Joseph Elibert, guilty of two counts of indecent
assault and battery on a child under fourteen. On appeal, the
defendant contends that the judge erred by (1) instructing the
jury on the lesser included offense of indecent assault and
battery; (2) admitting testimony in violation of the first
complaint doctrine; (3) allowing the Commonwealth's expert
witnesses to testify to facts not in evidence; and (4) admitting
prior bad acts evidence. The defendant also claims that his
trial counsel was ineffective for advising him not to testify.
We affirm.
Background. The sexual assaults occurred over a period of
years while the defendant was in a long-term relationship with
the victim's grandmother and living in the family's Dorchester apartment. The victim, who was sixteen years old at the time of
trial, testified that the abuse began when she was nine years
old and continued until the defendant moved out in January 2016.
The assaults occurred in the living room of the apartment and in
the defendant's car. When the victim was nine years old, the
defendant "forced [her] onto the big couch," "took off [her]
pants and [her] underwear and started licking inside [her]
vagina and then he put his two fingers inside [her] vagina"
while his other hand was "on [her] butt." When the victim was
"maybe ten" years old, the defendant exposed his penis to her in
the living room and asked her "to suck it and touch it" while
"bringing his penis closer to [her]," "as if he wanted [her] to
give oral sex." Beginning when the victim was in the sixth
grade, the defendant assaulted her "[m]ore than once" while
alone with her in his vehicle. The victim testified that he
"would put his hands inside [her] khaki pants, through [her]
underwear . . . touch inside [her] vagina," and "put his whole
hand . . . inside [her] vagina." In addition, the victim
testified to uncharged incidents of touching that occurred in
the living room "[m]ore than once a week" from the time she was
nine years old to when she was twelve.1
1 The victim testified that the defendant "would force [her] on his lap" so that she was facing him, "would either touch [her] breasts or lick [her] breasts, and he would also touch [her] butt." The defendant would then "move [her] back and forth in a
2 The defendant was indicted on two counts of aggravated rape
of a child for "putting his tongue to the [victim's] vagina,"
and "penetrating the vagina of [the victim] with his fingers;"
two counts of indecent assault and battery on a child under
fourteen for touching her breasts and buttocks; and one count of
open and gross lewdness. The jury found the defendant guilty of
the lesser included offense of indecent assault and battery on
both the oral and digital aggravated rape counts, and not guilty
of the remaining counts. This appeal followed.
Discussion. 1. Lesser included offense instruction. The
defendant contends that the judge erred by instructing the jury
on the lesser included offense of indecent assault and battery
because the evidence did not support such an instruction.
Where, as here, the defendant timely objected to the
instruction, we review for prejudicial error. See Commonwealth
v. LeBlanc, 456 Mass. 135, 142 (2010).
It is well settled that indecent assault and battery on a
child under fourteen is a lesser included offense of aggravated
rape of a child, distinguished by the element of penetration.
See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013);
Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not
error to give a lesser included offense instruction 'if on any
sexual motion," and she "could feel his penis touching [her] vagina" through his clothing.
3 hypothesis of the evidence, the jury could have found the
defendant[] guilty of [the lesser included offense]' and not
guilty of the greater offense." Commonwealth v. Porro, 458
Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass.
130, 132 (1994). "In determining whether there is such a
hypothesis, 'the judge may consider the possibility that the
jury reasonably may disbelieve the witnesses' testimony
regarding an element required of the greater, but not the lesser
included, offense . . . even though the element that
distinguishes the two offenses was not specifically disputed or
put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass.
415, 424-425 (2012), quoting Porro, supra.
The defendant, relying on Commonwealth v. Donlan, 436 Mass.
329, 337 (2002), argues that the lesser included offense
instruction was improper because there was no "evidence that
disputes or puts into question the element of penetration." See
id. at 335 (defendant not entitled to lesser included
instruction where evidence of differentiating element not
"sufficiently in dispute" [citation omitted]). The defendant's
reliance on Donlan, however, is misplaced, as he fails to
recognize that we apply a "different test where the issue is
whether the judge erred in giving a lesser included instruction
rather than . . . by failing to give such an instruction."
Porro, 458 Mass. at 537.
4 In the present case, the jury may reasonably have
disbelieved the victim's testimony as to penetration and found
that there had been indecent touching that fell short of digital
and oral aggravated rape. See Commonwealth v. Russell, 470
Mass. 464, 481-482 (2015). The jury heard evidence that (1) in
her 2016 interview with investigators, the victim alleged that
the abuse consisted only of "touching" of her "breasts and [her]
butt"; (2) her 2018 interview was "the first time [she] accused
[the defendant] of rape"; and (3) when investigators asked why
she was "accusing [the defendant] of rape when [she] had never
mentioned that back in 2016," she told them she "needed to tell
more, and maybe it will bring more power to the situation." The
jury could reasonably have found, as the defendant argued in
closing, that "in 2016, she says it was a touching," and "[i]n
2018, she comes back and claims it was a rape." Furthermore,
with respect to the testimony regarding penetration, "the jury
properly could have considered the age of the victim," who was
nine years old when the abuse began, and "could have had
reasonable doubt as to the extent of the contact [she]
described." Id. at 482. The jury could reasonably have found,
for example, that the defendant put his hand inside the victim's
pants and "through [her] underwear," but disbelieved her
testimony regarding penetration. See id. at 481 (if there was
"evidence of both nonpenetrating and penetrating contact, the
5 jury were free to believe the former and disbelieve the
latter"). In this regard, the jury could also have considered
the victim's testimony concerning the feeling "from" her vagina
in reference to both alleged penetrative conduct and
nonpenetrative touching by the defendant. We conclude that it
was not error for the judge to give the lesser included
instruction where "a jury reasonably could be convinced by the
victim's testimony that the defendant sexually assaulted her but
not be convinced beyond a reasonable doubt that penetration
occurred." Porro, 458 Mass. at 537 n.10.
The defendant further contends that the judge erred by not
providing a specific unanimity instruction regarding the lesser
included offenses of indecent assault and battery. Where the
defendant did not request such an instruction nor object to the
judge's instructions on that basis,2 we review for a substantial
risk of a miscarriage of justice. Commonwealth v. Black, 50
Mass. App. Ct. 477, 477 (2000). We discern no error, much less
such a risk.
"A specific unanimity instruction is required where an
'indictment alleges in statutory terms a criminal offense
occurring during a period of several months and, at trial, there
is evidence that the defendant committed several such offenses
2 The defendant objected to the judge providing a lesser included offense instruction and a prior bad acts instruction.
6 within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct.
463, 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591,
598 (1996). Here, the judge provided a specific unanimity
instruction on the aggravated rape indictments.3 After
explaining the elements of aggravated rape, the judge instructed
that if the jury found that the Commonwealth had failed to prove
each element beyond a reasonable doubt, that the jury "should
consider whether the Commonwealth has proved the lesser crime of
indecent assault and battery." In addition, the judge explained
that each verdict slip for the two aggravated rape counts
"references in parentheses the particular alleged contact," and
that there were three choices on each slip: not guilty, guilty,
or guilty of the lesser included offense of indecent assault and
battery. The judge was not required, sua sponte, to provide an
additional specific unanimity instruction on the lesser included
offenses.4
2. First complaint issues. The defendant argues that the
judge erred by permitting the first complaint witness to testify
3 The judge instructed, in part, that the jury must unanimously agree that the rapes occurred "on at least one specific occasion," and, with respect to the digital rape, that the offense occurred "either in the apartment or in the motor vehicle, or in both." 4 Even assuming error, the risk that the jury would convict the
defendant based on uncharged conduct was mitigated by the judge's clear instructions on the limited purpose for which the jury could consider the evidence of touching prior to January 2016, see infra.
7 to her belief in the victim's allegations and admitting evidence
of multiple complaints. We review the admission of such
evidence for abuse of discretion. See Commonwealth v. Aviles,
461 Mass. 60, 73 (2011).
The defendant maintains that the first complaint witness
improperly testified over objection to her belief in the
victim's allegations of abuse when she stated that "[i]t sounded
pretty real to me, but after [the victim] said it was a joke."
Viewed in context,5 the witness's challenged testimony was not an
improper reflection of whether she believed the victim's
allegations, but rather a relevant observation of the victim's
demeanor and the manner in which she initially made the
disclosure -– seriously as compared to joking. See, e.g.,
Commonwealth v. Espinal, 482 Mass. 190, 204-205 (2019) (first
complaint witness may "testify as to the 'circumstances
surrounding the initial complaint'" including "observations of
the complainant" and "other relevant conditions that might help
a jury assess the veracity of the complainant's allegations"
[citation omitted]); Commonwealth v. King, 445 Mass. 217, 246 &
5 The first complaint witness testified that the victim told her "that [the victim's] grandfather touched her breasts and her butt." When asked "how [the victim] said it," she testified that "[i]t sounded serious at first, but afterwards she told me it was a joke." The prosecutor then asked the witness to clarify what she meant when she said the victim said it "seriously," to which the witness responded that "[i]t sounded pretty real to me, but after she said it was a joke."
8 n.26 (2005). On the record before us, we discern no abuse of
discretion in the judge's admission of the first complaint
witness's testimony.6,7
We likewise discern no reversible error in the admission of
the victim's, the mother's, or Detective Johnson's testimony.
"While the first complaint doctrine prohibits 'piling on' of
additional complaint witnesses, 'it does not exclude testimony
that is otherwise independently admissible and serves a purpose
other than to repeat the fact of a complaint and thereby
corroborate the complainant's accusations.'" Commonwealth v.
Kennedy, 478 Mass. 804, 814 (2018), quoting Commonwealth v.
McCoy, 456 Mass. 838, 845 (2010). The victim's testimony that
on January 26, 2016, she "ha[d] a conversation with a school
counselor"; "went to [her] mom's house," "Children's Hospital,"
and "[t]he police station"; and that she no longer lived in the
6 Even assuming error, we discern no prejudice from the admission of the witness's testimony regarding the victim's disclosure "that her grandfather touched her breasts and her butt" where the defendant was acquitted on the indecent assault and battery charges for "touching her breasts" and "touching her buttocks." See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). Furthermore, the judge properly instructed the jury, both during the trial and in his final charge, on the limited purposes for which it could consider first complaint evidence. 7 We are likewise unpersuaded by the defendant's assertion that
the prosecutor's closing argument, to which he did not object, exacerbated the prejudice from the admission of the first complaint witness's testimony. Where the admission of the testimony was not error, "the Commonwealth was permitted to rely on it during closing argument" and argue that her testimony corroborated the victim's account. Espinal, 482 Mass. at 205.
9 apartment or was alone with the defendant after that day "was
not offered as first complaint testimony, but rather to provide
context" for, inter alia, what led to the end of the years-long
abuse. Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009). The
victim's redirect testimony as to her family members' reactions
to learning of the abuse8 was properly admitted to rebut
questions raised by the defendant on cross-examination.9 Id. at
297-299. Finally, we discern no reversible error in the
admission of Detective Johnson's testimony where the defendant
"opened the door" to the nature of the questions in the 2016
forensic interview on cross-examination of the victim,
Commonwealth v. Torres, 86 Mass. App. Ct. 272, 277-278 (2014)
(once defendant "opened the door," Commonwealth permitted to
explore contents and context of statements in more detail), and
the detective did not "reiterate[] [the victim's] accusations or
8 Even assuming, arguendo, that it was error to admit the mother's testimony that she felt "[s]hock," "[c]onfusion," and "just hurt" after she "learn[ed] of some information" on January 26, 2016, we discern no prejudice where the testimony was brief, she did not convey the content of the information she learned nor her belief in it, and the defendant relied on this testimony in closing argument to suggest that "[a]ny parent . . . would feel the same way" and the mother "had trouble believing" the allegations. See McCoy, 456 Mass. at 851-852. 9 After the defendant cross-examined the victim about her partial
and delayed disclosures, the victim explained on redirect that she did not disclose the full extent of the abuse in 2016 "[b]ecause of how [her] family reacted."
10 enhance[] her credibility by suggesting that [he] believed
her."10 Kennedy, supra at 815.
3. Commonwealth's expert witnesses. The defendant next
asserts that the judge erred by allowing the Commonwealth's
expert witnesses to testify to facts not in evidence and to
bolster their opinions with hearsay evidence through references
to literature, research, studies, and observations of their
colleagues' work. As the defendant did not object to the
experts' testimony on this ground, either at trial or at the
motion in limine stage, we review to determine whether there was
error, and if so, whether it created a substantial risk of a
miscarriage of justice.11 Commonwealth v. Grady, 474 Mass. 715,
716-717, 719 (2016).
"Although facts and data not in evidence may form the basis
of an expert witness's opinion testimony, the expert may not
present on direct examination the specific information on which
he or she relied . . . because expert testimony to the fact[s]
of the test results obtained by someone else . . . [is] hearsay"
(quotation and citation omitted). Commonwealth v. Greineder,
10 We likewise reject the defendant's argument that the prosecutor's brief references to the victim "finally [speaking] up" on January 26, 2016, and to the family's reactions in opening and closing arguments, to which he did not object, exacerbated any prejudice, much less created a substantial risk of a miscarriage of justice. 11 Even assuming this issue was properly preserved, we discern no
prejudicial error for the reasons discussed infra.
11 464 Mass. 580, 583 (2013). As the Commonwealth concedes, Dr.
Schwartz's testimony on direct examination regarding the
specific findings of her colleague's study of pregnant teenagers
constituted inadmissible hearsay. That notwithstanding, we
discern no substantial risk of miscarriage of justice in the
admission of this testimony where the testimony was brief, and
the jury found the defendant not guilty of both counts involving
penetration.12 See Commonwealth v. Duffy, 62 Mass. App. Ct. 921,
923 (2004) (admission of evidence "obviously not unduly
prejudicial given the defendant's acquittal on the charge to
which it most directly related"); Commonwealth v. Sosnowski, 43
Mass. App. Ct. 367, 372 (1997). The remainder of Dr. Schwartz's
and Dr. Tishelman's testimony, however, was properly admitted.
See Commonwealth v. Durand, 475 Mass. 657, 670 (2016) (testimony
admissible where expert "testified that her opinion was based on
relevant scientific literature but she did not name specific
studies or discuss their factual findings").
Finally, we reject the defendant's assertion that the
experts' testimony violated his right to confrontation. The
literature, research, and studies to which the experts referred
were not testimonial in nature and do not implicate the
12We likewise discern no substantial risk of a miscarriage of justice from the prosecutor's brief reference to Dr. Schwartz's inadmissible testimony during closing argument, to which the defendant did not object.
12 confrontation clause. See Commonwealth v. Cole, 473 Mass. 317,
329-330 (2015); Commonwealth v. Durand, 457 Mass. 574, 589
(2010).
4. Prior bad acts evidence. The defendant contends that
the judge erred by admitting the victim's testimony regarding
the defendant's uncharged conduct.13 Where the defendant
objected to the admission of the prior bad acts evidence, we
review for abuse of discretion. See Commonwealth v. McCowen,
458 Mass. 461, 478 (2010).
The victim's testimony regarding the uncharged touching
incidents that occurred "more than once a week" was relevant and
properly admitted for the limited purposes of establishing a
pattern of conduct and demonstrating the nature of the
relationship between the parties. See, e.g., Commonwealth v.
Centeno, 87 Mass. App. Ct. 564, 567 (2015). The victim's
testimony of the ongoing abuse also provided context for, inter
alia, her delayed disclosure and alleged inconsistent
statements. See, e.g., Commonwealth v. Childs, 94 Mass. App.
Ct. 67, 72 (2018).
13We reject the defendant's related assertion that the uncharged conduct was the only evidence of improper touching upon which the jury could have convicted him of the lesser included offenses of indecent assault and battery. As discussed supra, the jury reasonably could have disbelieved the victim's testimony regarding penetration and found indecent touching short of aggravated rape. See Russell, 470 Mass. at 481-482.
13 Furthermore, the judge's clear limiting instruction during
his final charge mitigated the risk of undue prejudice to the
defendant. The judge explained that the defendant was "not
charged with that touching prior to January of 2016," specified
the limited purpose for which the prior bad acts evidence was
admitted, and emphasized that the jury could not consider that
evidence as proof that the crimes occurred or of the defendant's
character or propensity. We presume that the jury followed the
judge's limiting instructions. See Commonwealth v. Bryant, 482
Mass. 731, 737 (2019). Where the evidence admitted was highly
probative for non-propensity purposes "and the chance of
prejudice was minimized by a specific limiting instruction, we
cannot say on the record before us that the judge's decision to
admit the testimony was in palpable error." Commonwealth v.
Dunn, 407 Mass. 798, 807 (1990).
Likewise, the defendant's contention that the judge failed
to provide a proper and timely limiting instruction lacks merit.
The defendant asserts that the judge's use of the word "showing"
improperly implied that the prior bad acts evidence had in fact
occurred.14 Where the defendant did not object to the judge's
14In his final charge, the judge instructed the jury, in part, that "[d]uring trial, there was some testimony showing that the Defendant touched [the victim's] breasts or buttocks at other times between 2011 and 2016."
14 instruction on this basis at trial,15 our review is limited to
whether there was error and, if so, whether it created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Pfeiffer, 482 Mass. 110, 128 (2019); Commonwealth v. Belcher,
446 Mass. 693, 696 (2006).
Viewing the instruction as a whole, see Commonwealth v.
Riley, 433 Mass. 266, 270 (2001), we discern no reversible error
where the judge explained to the jurors the limited purpose for
which they could consider the evidence of the uncharged
touching, "to the extent you believe it." Furthermore, the
failure to provide the limiting instruction contemporaneously,
when such an instruction was not requested, was not error. See
Commonwealth v. Teixeira, 486 Mass. 617, 629 n.7 (2021).
5. Ineffective assistance of counsel. For the first time
on appeal, the defendant alleges that his trial counsel was
ineffective for advising him not to testify in his own defense.
We review a claim of ineffective assistance of counsel to
determine whether there was "serious incompetency, inefficiency,
or inattention of counsel" that "deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
15Although the transcript is somewhat unclear, it appears that the defendant objected to the prior bad acts instruction solely because "a course of conduct is not something which is material in this case" and "[t]here's no issue of [identification]."
15 It is well established "that the 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 (2006), citing Saferian, 366 Mass. at 90 n.1. "Relief
on a claim of ineffective assistance based on the trial record
is the weakest form of such a claim because it is 'bereft of any
explanation by trial counsel for his actions and suggestive of
strategy contrived by a defendant viewing the case with
hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116 n.4
(2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5
(2002). Relief may be granted on such a claim, however, "when
the factual basis of the claim appears indisputably on the trial
record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019),
quoting Gorham, supra.
On the record before us, "the defendant's claim of
ineffective assistance is not indisputable." Davis, 481 Mass.
at 223. Without a motion for a new trial supported by an
affidavit from trial counsel or the defendant, we are left with
no basis on which to assess the credibility and plausibility of
the defendant's contentions made on appeal. See Commonwealth v.
Hoyle, 67 Mass. App. Ct. 10, 11 (2006). Nor does the trial
transcript support the defendant's allegation, as the judge's
colloquy with counsel and the defendant to address his decision
whether to testify was not transcribed and the record is silent
16 as to the advice trial counsel provided the defendant regarding
this decision. Accordingly, the claim is speculative, and
satisfies neither prong of the ineffective assistance of counsel
test.
Judgments affirmed.
By the Court (Milkey, Neyman & Smyth, JJ.16),
Clerk
Entered: April 5, 2023.
16 The panelists are listed in order of seniority.