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-170
COMMONWEALTH
vs.
JOSEPH V. BOUCHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of indecent
assault and battery on a person under fourteen years old
(touching of breasts).1 On appeal, the defendant contends that
the judge erred by admitting bad acts evidence and failing to
instruct the jury on the limited purpose for the admission of
that evidence. The defendant also argues that a substantial
risk of miscarriage of justice resulted from a misstatement of
the law and improper bolstering of the victim's testimony in the
prosecutor's opening statement and closing argument. We affirm.
1The jury acquitted the defendant of indecent assault and battery on a person under fourteen years old (touching of buttocks) and indecent assault and battery on a person fourteen years or older (touching of vagina). Background. The Commonwealth presented the following
evidence. The victim was born in January 2000. During the
summer of 2011, the victim and her older sister moved into their
aunt's house. The defendant also lived there and was the aunt's
boyfriend. The victim knew the defendant for most of her life
and considered him an uncle.
Around November 2011, the defendant began to rub the
victim's back and slap her buttocks in front of other people at
the house. This behavior continued until February 2013, when
the victim moved out of her aunt's house, despite the victim
asking the defendant to stop it. During this same period, the
defendant touched the victim nightly while she was lying in bed.
The victim and her sister shared a bedroom, with the victim's
bed abutting a window that opened to the front exterior porch.
From the porch, the defendant would open the window, place his
hand through it, and grope the victim's breasts. The defendant
also frequently stood in an alley behind the house and watched
the victim through a window when she showered or used the
bathroom. In response, the victim put a towel over the window
or asked her sister to come to the bathroom with her to block
the view from the alley.
The victim's best friend stayed overnight at the victim's
house almost every other weekend in 2011 and during part of
2012. She slept in the victim's bedroom. One night, the friend
2 awoke to the defendant opening the victim's bedroom window and
saw him put his hand through it. When she tried to awaken the
sleeping victim, the defendant removed his hand and retreated
into the house. The friend also saw the defendant looking at
her through the bathroom window while she showered.
In August 2014, faced with the prospect of being placed in
foster care, the then fourteen year old victim moved back into
her aunt's house. She initially slept on the sun porch, which
had a locked door. At some point, the victim moved into a
bedroom with her sister and infant nephew. The bedroom was
different from the one the victim shared with her sister during
her previous stay. The victim slept on a mattress next to her
sister's bed. The bedroom had no door, only a curtain, and the
defendant had to pass through the room to get to the bedroom he
shared with the victim's aunt. Every night until the victim
moved out of the house, the defendant entered her bedroom,
leaned over her as she lay in bed, and touched her breasts and
vagina over her clothing. The victim never yelled out or spoke
to the defendant, and her sister never woke up during these
assaults. The victim left her aunt's house permanently in
February 2015.
Discussion. 1. Bad act evidence. The defendant asserts
that the admission of bad act evidence and the judge's failure
to give, sua sponte, instructions to the jury on the limited
3 purpose of that evidence was reversible error in this case. We
disagree.
a. Admissibility. The defendant argues that testimony at
trial about his uncharged misconduct was improper because it
created an undue risk that jurors might consider it as evidence
of his bad character or propensity to engage in criminal sexual
acts. Although the defendant generally objected to the
Commonwealth's motion in limine to admit bad act evidence, he
did not object during trial to the admission of testimony about
his uncharged misconduct.
"[E]vidence of prior bad acts 'is not admissible to show a
defendant's bad character or propensity to commit the charged
crime.'" Commonwealth v. Facella, 478 Mass. 393, 403 (2017),
quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006).
"[S]uch evidence is admissible when offered for another purpose,
such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or pattern of operation, so long as its
probative value for that purpose is not outweighed by its
prejudicial effect." Commonwealth v. Welch, 487 Mass. 425, 442-
443 (2021), quoting Commonwealth v. Hall, 485 Mass. 145, 163
(2020). "These matters are 'entrusted to the trial judge's
broad discretion and are not disturbed absent palpable error.'"
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting
4 Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied
sub nom. Keown v. Massachusetts, 583 U.S. 1139 (2018).
Here, the defendant specifically challenges the testimony
of uncharged conduct that the defendant touched the victim's
breasts nightly after she moved back to the aunt's house in 2014
(when the victim was fourteen years old), and that he peered at
the victim and her friend while they showered or used the
bathroom. The evidence that the defendant touched the victim's
breasts nightly in 2014 was relevant to show that "the
relationship between the defendant and the victim was one of
continuous sexual abuse," Childs, 94 Mass. App. Ct. at 71-72
(quotation and citation omitted), when she resided in the aunt's
house. It was also probative of the defendant's "pattern of
conduct and the existence of the defendant's sexual interest in
the victim." Commonwealth v. Centeno, 87 Mass. App. Ct. 564,
567 (2015). To the extent that peering at the victim and her
friend qualified as bad act evidence,2 it was relevant to show
that the defendant had a sexual interest in the victim and a
voyeuristic interest in young females. See Commonwealth v.
Wallace, 70 Mass. App. Ct. 757, 765 (2007). We therefore
2 As the trial judge noted, the behavior likely fell short of any criminal conduct.
Free access — add to your briefcase to read the full text and ask questions with AI
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-170
COMMONWEALTH
vs.
JOSEPH V. BOUCHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of indecent
assault and battery on a person under fourteen years old
(touching of breasts).1 On appeal, the defendant contends that
the judge erred by admitting bad acts evidence and failing to
instruct the jury on the limited purpose for the admission of
that evidence. The defendant also argues that a substantial
risk of miscarriage of justice resulted from a misstatement of
the law and improper bolstering of the victim's testimony in the
prosecutor's opening statement and closing argument. We affirm.
1The jury acquitted the defendant of indecent assault and battery on a person under fourteen years old (touching of buttocks) and indecent assault and battery on a person fourteen years or older (touching of vagina). Background. The Commonwealth presented the following
evidence. The victim was born in January 2000. During the
summer of 2011, the victim and her older sister moved into their
aunt's house. The defendant also lived there and was the aunt's
boyfriend. The victim knew the defendant for most of her life
and considered him an uncle.
Around November 2011, the defendant began to rub the
victim's back and slap her buttocks in front of other people at
the house. This behavior continued until February 2013, when
the victim moved out of her aunt's house, despite the victim
asking the defendant to stop it. During this same period, the
defendant touched the victim nightly while she was lying in bed.
The victim and her sister shared a bedroom, with the victim's
bed abutting a window that opened to the front exterior porch.
From the porch, the defendant would open the window, place his
hand through it, and grope the victim's breasts. The defendant
also frequently stood in an alley behind the house and watched
the victim through a window when she showered or used the
bathroom. In response, the victim put a towel over the window
or asked her sister to come to the bathroom with her to block
the view from the alley.
The victim's best friend stayed overnight at the victim's
house almost every other weekend in 2011 and during part of
2012. She slept in the victim's bedroom. One night, the friend
2 awoke to the defendant opening the victim's bedroom window and
saw him put his hand through it. When she tried to awaken the
sleeping victim, the defendant removed his hand and retreated
into the house. The friend also saw the defendant looking at
her through the bathroom window while she showered.
In August 2014, faced with the prospect of being placed in
foster care, the then fourteen year old victim moved back into
her aunt's house. She initially slept on the sun porch, which
had a locked door. At some point, the victim moved into a
bedroom with her sister and infant nephew. The bedroom was
different from the one the victim shared with her sister during
her previous stay. The victim slept on a mattress next to her
sister's bed. The bedroom had no door, only a curtain, and the
defendant had to pass through the room to get to the bedroom he
shared with the victim's aunt. Every night until the victim
moved out of the house, the defendant entered her bedroom,
leaned over her as she lay in bed, and touched her breasts and
vagina over her clothing. The victim never yelled out or spoke
to the defendant, and her sister never woke up during these
assaults. The victim left her aunt's house permanently in
February 2015.
Discussion. 1. Bad act evidence. The defendant asserts
that the admission of bad act evidence and the judge's failure
to give, sua sponte, instructions to the jury on the limited
3 purpose of that evidence was reversible error in this case. We
disagree.
a. Admissibility. The defendant argues that testimony at
trial about his uncharged misconduct was improper because it
created an undue risk that jurors might consider it as evidence
of his bad character or propensity to engage in criminal sexual
acts. Although the defendant generally objected to the
Commonwealth's motion in limine to admit bad act evidence, he
did not object during trial to the admission of testimony about
his uncharged misconduct.
"[E]vidence of prior bad acts 'is not admissible to show a
defendant's bad character or propensity to commit the charged
crime.'" Commonwealth v. Facella, 478 Mass. 393, 403 (2017),
quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006).
"[S]uch evidence is admissible when offered for another purpose,
such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or pattern of operation, so long as its
probative value for that purpose is not outweighed by its
prejudicial effect." Commonwealth v. Welch, 487 Mass. 425, 442-
443 (2021), quoting Commonwealth v. Hall, 485 Mass. 145, 163
(2020). "These matters are 'entrusted to the trial judge's
broad discretion and are not disturbed absent palpable error.'"
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting
4 Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied
sub nom. Keown v. Massachusetts, 583 U.S. 1139 (2018).
Here, the defendant specifically challenges the testimony
of uncharged conduct that the defendant touched the victim's
breasts nightly after she moved back to the aunt's house in 2014
(when the victim was fourteen years old), and that he peered at
the victim and her friend while they showered or used the
bathroom. The evidence that the defendant touched the victim's
breasts nightly in 2014 was relevant to show that "the
relationship between the defendant and the victim was one of
continuous sexual abuse," Childs, 94 Mass. App. Ct. at 71-72
(quotation and citation omitted), when she resided in the aunt's
house. It was also probative of the defendant's "pattern of
conduct and the existence of the defendant's sexual interest in
the victim." Commonwealth v. Centeno, 87 Mass. App. Ct. 564,
567 (2015). To the extent that peering at the victim and her
friend qualified as bad act evidence,2 it was relevant to show
that the defendant had a sexual interest in the victim and a
voyeuristic interest in young females. See Commonwealth v.
Wallace, 70 Mass. App. Ct. 757, 765 (2007). We therefore
2 As the trial judge noted, the behavior likely fell short of any criminal conduct.
5 conclude that the challenged evidence was not unduly prejudicial
and discern no abuse of discretion in its admission at trial.
b. Jury instructions. The defendant also contends that
the judge's failure to instruct the jury on the limited purpose
of bad act evidence exacerbated the risk of undue prejudice. He
asserts that the jury might have confused the charged crime
(indecent touching of the victim's breasts when she was under
fourteen) with an uncharged crime (indecent touching of the
victim's breasts when she was fourteen years of age or older).
We disagree.
We begin by noting that, because the defendant did not
request any instructions either contemporaneous with the
admission of the evidence or during the judge's final
instructions to the jury, it was not error for the judge not to
instruct the jury on the limited purpose of the bad act
evidence. See Commonwealth v. Nascimento-Depina, 496 Mass. 1,
9, cert. denied sub nom. Nascimento-Depina v. Massachusetts, 146
S.Ct. 260 (2025) ("We have never required a judge to give a
limiting instruction in the absence of a request for one, and
see no reason to create such a rule . . ."). As to the
defendant's claim that the jury were confused or misled, we look
at the judge's instructions holistically to determine whether
they fairly instructed the jury. See Commonwealth v.
Richardson, 429 Mass. 182, 185 (1999). Our review is for a
6 substantial risk of miscarriage of justice where the defendant
did not object to the judge's instructions. See Commonwealth v.
Desiderio, 491 Mass. 809, 815, 818 (2023).
The judge's final instructions were adequate, particularly
with respect to the facts that underpinned each crime. The
judge outlined each crime charged, including the body part
alleged to have been touched and the victim's age at the time.3
See Commonwealth v. Bryant, 482 Mass. 731, 737–738 (2019) (jury
presumed to follow judge's instructions). Consistent with the
jury instructions, each verdict slip delineated the charge, the
corresponding body part, and the victim's age. In addition,
there was a clear break in the temporal chain between the events
described by the victim before and after she turned fourteen:
she moved out of her aunt's house for about eighteen months.
There were also factual distinctions between the victim's
description of the assaults that occurred on either side of that
break in time. When she was under fourteen, the victim slept in
a room adjacent to the porch and the defendant reached his hand
3 The transcript of the jury instructions reflects that the judge told the jury that "[t]he second charge is an indecent assault and battery on a person under the age of 15" (emphasis added). After a review of the audio recording from the trial, the parties informed this court in a joint postargument filing that this was a scrivener's error. The judge correctly informed the jury that the charge required the victim to be under fourteen years old.
7 in through a window to touch her breasts; when the victim
returned to the house after she turned fourteen, she slept in a
different bedroom through which the defendant walked to get to
his own room. Moreover, the acts for which the defendant was
convicted -- putting his hand through the porch window to touch
the victim's breasts -- were corroborated, at least in part, by
testimony of the victim's friend that she saw the defendant
reaching through the window into the bedroom one night.
On this record, we conclude that the jury were fairly
instructed on the elements and corresponding acts for each crime
charged. There was no substantial risk that the jury were
confused or that they convicted the defendant of a crime other
than the one with which he was charged. See Desiderio, 491
Mass. at 818.
2. Prosecutor's opening statement and closing argument.
Finally, the defendant argues that that the prosecutor made
statements in her opening statement and closing argument that
misstated the law and improperly bolstered the victim's trial
testimony. Because the defendant did not object at trial, our
review is "to determine if the statements were error, and, if
so, whether they created a substantial risk of a miscarriage of
justice." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9
(2019).
8 The defendant contends that it was improper for the
prosecutor to refer to the victim as a "child." He asserts that
the prosecutor misstated the law to the extent the defendant was
charged with indecent assault and battery on a child and, at
least as to some of the conduct, the victim was over fourteen
years old. This argument takes the prosecutor's statements out
of context. We think a fair reading of these fleeting
references in both the opening statement and closing argument is
that the prosecutor was highlighting the difference in age,
status, and power between a fourteen year old girl and a grown
man whom she regarded as an uncle. We discern no risk that
these statements confused the jury as to the legal status of the
victim at the various stages of her interaction with the
defendant. Furthermore, as discussed above, the judge gave
clear instructions on the legal requirements for each crime,
including the distinctions between indecent assault and
batteries that occurred before the victim turned fourteen years
old versus when she was fourteen years old or older.
The defendant further argues that the prosecutor improperly
vouched for the victim's credibility by stating that the victim
and her friend "took the stand" to tell the jury what had
occurred. Again, the defendant's argument takes the
prosecutor's statements out of context. The prosecutor's
references to the victim and witness "taking the stand" were
9 shorthand for the fact that they testified; nowhere does the
prosecutor argue either witness should be believed because she
took the witness stand. This is a material and meaningful
difference because the prosecutor did not impermissibly suggest
that the victim and her friend were entitled to greater
credibility merely because they were willing to testify. See
Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008).
Because we discern no error, there was no risk that either
the prosecutor's opening statement or closing argument caused a
miscarriage of justice. See Sanchez, 96 Mass. App. Ct. at 9-11.
Judgment affirmed.
By the Court (Desmond, Hershfang & Brennan, JJ.4),
Clerk
Entered: May 18, 2026.
4 The panelists are listed in order of seniority.