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-303
COMMONWEALTH
vs.
LUIS RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of three
charges of aggravated rape of a child and one charge of indecent
assault and battery on a person over fourteen.1 On appeal the
defendant argues that the trial judge erred in admitting prior
bad act evidence and multiple first complaint evidence and that
various statements in the prosecutor's closing argument were
improper. We affirm.
Background. The Commonwealth elicited the following
evidence. The victim lived with the defendant (her stepfather),
her mother, and at various times her four siblings -- Dahlia,
1 All of the offenses involved the same victim. The three aggravated rape indictments alleged that the rapes occurred on divers dates between March 1, 2009, and March 1, 2015. The fourth indictment alleged that the defendant committed an indecent assault and battery -- "putting his penis on top of [the victim's] vagina" -- on June 17, 2016. Rosa, Julio, and Juanita.2 The victim shared a bedroom with
Juanita.
The victim's earliest memory of being assaulted by the
defendant was when she was in second or third grade and was at
home with Juanita and the defendant. The victim and Juanita
went to sleep in the bedroom shared by their mother and the
defendant. During the night the defendant took the victim back
to her bedroom, began to "hump" her through her clothes, removed
her pants and underwear, and slid his penis against her vagina.
Another time, the defendant came into the victim's bedroom
during the night holding a box cutter and gesturing to her not
to say anything. He proceeded to "hump" her through her clothes
and then pulled down her pants and underwear and slid his hands
against her vagina. The victim testified that the defendant
assaulted her in a similar manner on a weekly basis. Juanita,
who shared a bed with the victim, testified that she observed
the defendant assault the victim about three times a week.
The defendant also assaulted the victim elsewhere in the
home. One night, while everyone else was asleep, he stopped the
victim while she was passing through the living room to get to
the kitchen. The defendant put the victim on the ground,
removed her pants and underwear, and rubbed his penis against
2 The siblings' names are pseudonyms.
2 her vagina. Another assault occurred one day when the victim
was getting ready for school, her mother was not home, and
Juanita was still asleep. The victim was leaving the bathroom
wrapped in a towel, and the defendant stopped her and brought
her to his room. He proceeded to rub his penis against her
vagina.
After assaulting the victim, the defendant would sometimes
tell her to go to the bathroom to wash up and change her
underwear. The victim would find a "gooey" substance on her
vagina or underwear that she later understood to be semen.
Once, the victim's mother heard the victim crying in the
bathroom after an assault and asked her why she was crying. The
defendant, standing behind the mother, gestured at the victim
not to say anything, and the victim stated that nothing
happened.
Another night on which the defendant raped the victim, the
victim's mother entered the victim's bedroom and saw her crying.
When the mother asked the defendant what happened, the defendant
insisted that nothing happened and then grabbed a lamp and hit
it against the victim's head, breaking the lamp. Afterward, the
victim and Juanita asked for a lock for their bedroom door.
Either the mother or the defendant drilled holes in the
doorframe, and the victim and Juanita slid scissors and pencils
into the holes to create a makeshift lock.
3 The last assault occurred when the victim was finishing
eleventh grade in 2016. One morning the defendant knocked on
the victim's locked bedroom door while she was sleeping and
asked for help with his tablet. The victim told him that she
could not help and tried to shut the door, but he held it open
and entered the room. When the victim reached for her phone,
the defendant took it away and told her to lie on the bed. He
began "humping" her and directed her to remove her pants and
underwear. He then slid his penis against her vagina.
Afterward, he had the victim wash his semen off her underwear
and vagina and said that "if [she] told anyone he would kill
everyone in the house."
Soon after this assault, the victim told her mother and a
friend that the defendant had been abusing her. The victim then
went with some of her siblings to a police station, where she
reported the abuse to a detective. The detective went to the
family's home and recovered the victim's bedding, which tested
negative for the presence of semen. As a result of the victim's
report, the Department of Children and Families (DCF) sent her
to live with her aunt.
Discussion. 1. Prior bad acts. At the defendant's first
trial, which ended in a mistrial because of a deadlocked jury,
the judge excluded certain bad act evidence. At trial in this
case, the judge decided differently and admitted the evidence
4 over the defendant's objection. The judge reasoned that the
similarities of the bad acts to the charged assaults -- in time,
location, relationship, victims' age, and manner in which the
defendant gained access to the victims -- warranted their
admission.
The first piece of evidence at issue was the victim's
testimony about a sexual assault that occurred in Cambridge.3
The victim testified that she and the defendant were going to a
family cookout and the defendant offered to retrieve a tarp from
a storage facility where he worked. He insisted that the victim
go with him. Once inside the facility, the defendant told the
victim to lie on the floor. He removed the victim's pants and
underwear, took out his penis, put a condom on, and rubbed his
penis back and forth against her vagina.
The other evidence at issue concerned sexual abuse that the
defendant committed against three of the victim's siblings,
Dahlia, Julio, and Rosa. Dahlia testified that in 2003, when
she was sixteen years old, the defendant entered her bedroom
while she was sleeping, climbed on top of her, and started
touching her body. When she struggled, the defendant hit her,
retrieved a knife from the kitchen, and said he wanted to kill
3 This assault was not part of the charged conduct because it occurred in a different county. The victim could not recall the year in which it occurred.
5 her. Julio testified that he was watching television one
morning in the living room when the defendant entered, got on
top of him, and covered his mouth. The defendant pulled Julio's
pants down, tried to insert his penis into Julio's buttocks, and
urinated or ejaculated in that area. Inferentially, this
occurred in or about 2003, when Julio was younger than ten years
old. Finally, Rosa testified that, after she moved to the
United States in 2002, the defendant would often take her with
him in his car to run errands and would then park, get on top of
her, and make sexual movements. The defendant would also enter
Rosa's bedroom, get on top of her, take his penis out, and touch
her breasts. The defendant threatened to kill Rosa and her
siblings or take away their residency papers if she told her
mother.
The defendant argues that all of this evidence should have
been excluded as prior bad act evidence. Although prior bad
acts are "inadmissible for the purpose of demonstrating the
defendant's bad character or propensity to commit the crimes
charged," they may be admitted to show "motive, opportunity,
intent, preparation, plan, knowledge, identity, or pattern of
operation" (quotation omitted). Commonwealth v. Crayton, 470
Mass. 228, 249 (2014). Bad act evidence should be excluded,
however, "if its probative value is outweighed by the risk of
unfair prejudice to the defendant." Id. We review the judge's
6 decision to admit the evidence for abuse of discretion. See
Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014).
The judge was within her discretion to admit the evidence
of the uncharged Cambridge assault. That evidence was "relevant
to show a 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). It also was not
unfairly prejudicial where the jury heard evidence of the
charged conduct, which involved numerous instances of the
defendant assaulting the victim in a similar manner. Moreover,
the judge instructed the jury about the proper use and purpose
of bad act evidence after the victim's testimony and again in
the final charge. See Commonwealth v. Peno, 485 Mass. 378, 395-
396 (2020).
The judge was likewise within her discretion to admit the
testimony of the victim's siblings. After an extended
discussion with counsel, the judge carefully explained the
reasons for her decision, including that the victim and the
siblings had a similar relationship with the defendant -- i.e.,
he was their stepfather and a trusted authority figure, who
began abusing each of the children when they were of similar
age. The judge further reasoned that the assaults on the victim
and the siblings were close in time and mostly occurred in the
home, where the defendant had regular, unsupervised access to
7 the children. And, as the judge found, the defendant "created
situations where he was alone with [each] child, either by
coming in in the middle of the night or separating [the child
from] others." Given the similarities in the circumstances of
the assaults, the judge permissibly found that the siblings'
testimony was admissible for a nonpropensity purpose. See
Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 56 (2015) (bad
act evidence admissible because it "tended to show the
defendant's intent and inclination to commit the charged acts
and it corroborated the pattern of conduct testified to by the
victim").
Because the case turned on the victim's credibility, the
judge also permissibly concluded that the probative value of the
siblings' testimony outweighed any unfair prejudice to the
defendant. While the testimony was powerful, it did not
overwhelm the trial, during which the jury heard extensive
testimony about the charged conduct. Cf. Commonwealth v. Dwyer,
448 Mass. 122, 128-129 (2006). Moreover, at multiple points
during the trial, the judge gave careful limiting instructions
about the narrow purpose of bad act evidence, emphasizing that
the jury could not consider the bad acts as proof that the
defendant committed the charged conduct or as proof of his
criminal personality or bad character. The judge gave these
instructions before each sibling testified and again in the
8 final charge. Considering the judge's detailed reasoning, and
her repeated limiting instructions, we discern no abuse of
discretion. See Commonwealth v. Facella, 478 Mass. 393, 408-409
(2017).
For the first time on appeal, the defendant claims that the
victim's testimony about the defendant hitting her with a lamp
should also have been excluded as bad act evidence. Contrary to
the defendant's suggestion, this issue was not preserved at
trial. Although defense counsel objected to a question asking
the victim if the defendant was ever physically violent toward
her, he gave no basis for the objection and so did not preserve
the issue. See Commonwealth v. Moreno, 102 Mass. App. Ct. 321,
324 n.5 (2023). In any event, evidence about the defendant's
violence toward the victim was admissible for the nonpropensity
purpose of explaining why she did not report the sexual abuse
earlier. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394
(2006). And, in the context of the other evidence of the
defendant's repeated sexual assaults, the prejudicial effect of
this evidence was minimal. Thus, there was no substantial risk
of a miscarriage of justice.4
4 We reject the defendant's argument, to the extent made, that the judge erred by allowing the victim to testify that DCF placed her in foster care after she reported the rapes. While the defendant characterizes this testimony as bad act evidence, he fails to explain how the foster care placement was a bad act committed by him.
9 2. First complaint. The defendant challenges three pieces
of evidence as violative of the first complaint doctrine:
(1) the victim's testimony that she disclosed the abuse to her
friend (the first complaint witness) by both telephone and text
message; (2) the victim's testimony that she disclosed the abuse
to her mother after disclosing to her friend; and (3) the
testimony of Emily Rivera Nunez, a forensic interviewer, that
the victim disclosed a prior, uncharged sexual assault when she
was five years old. The defendant did not object to the
victim's testimony about her disclosures to her friend and
mother, so we review to determine whether any error created a
substantial risk of a miscarriage of justice. See Commonwealth
v. McCoy, 456 Mass. 838, 845-846 (2010). The defendant objected
to Nunez's testimony, so we review for prejudicial error. See
Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011).
The victim's testimony did not give rise to a substantial
risk of a miscarriage of justice. The victim testified that she
first disclosed the abuse to her friend in June 2016; when asked
how she communicated with the friend, the victim replied, "It
was on, like, the phone. Texting." She then testified that she
"told [her] mom" while her friend was "on the line." We do not
agree with the defendant's characterization of this testimony as
establishing that the victim "originally told [the friend] via
text and then discussed it with her again later on the
10 telephone." The sequence of the disclosures, and the proximity
in time between them, are unclear from the testimony, which
again was unobjected to at trial.5 In any event, even assuming
that the disclosures constituted separate complaints, the
defendant has not shown that the testimony created a substantial
risk of a miscarriage of justice where it was brief and devoid
of any details about the sexual assaults. See Commonwealth v.
Roby, 462 Mass. 398, 409 (2012). Likewise, the defendant has
failed to demonstrate a substantial risk of a miscarriage of
justice arising from the judge's failure to give a limiting
instruction contemporaneously with the victim's testimony, see
Commonwealth v. King, 445 Mass. 217, 248 (2005), where the judge
gave the required instruction when the friend testified and in
the final charge.
We further conclude that the judge was within her
discretion in admitting Nunez's testimony. Nunez testified
that, when the victim was five years old, she disclosed during
an interview that the defendant had touched her vagina over her
5 The victim did not testify that she made sequential disclosures to the friend until defense counsel elicited testimony to that effect on cross-examination. Specifically, the victim testified on cross-examination that she first sent a text message to her friend telling her "what happened," "told [her] mom" that night, and then called her friend. This testimony contradicted the victim's earlier testimony that her friend was "on the line" when the victim called her mother, as well as the friend's testimony that she "was on the phone while [the victim] told her mother."
11 clothing twice in one evening. If this disclosure constituted a
first complaint, even though the incident was not charged
conduct (an issue we do not decide), it was admissible under
Commonwealth v. Kebreau, 454 Mass. 287 (2009). There, the court
held that the first complaint doctrine "permits testimony from
two first complaint witnesses in circumstances . . . where each
witness testifies to disclosures made years apart concerning
different periods of time and escalating levels of abuse, which
constitute different and more serious criminal acts committed
over a lengthy period." Id. at 288-289. That is the case here
-- Nunez and the victim's friend testified to disclosures of
sexual abuses made almost twelve years apart and involving
escalating levels of abuse. If Nunez had not been permitted to
testify, "the jury could have questioned [the victim's]
credibility for enduring the abuse for years without any
complaint." Id. at 295. This would defeat one of the purposes
of the first complaint doctrine. See Commonwealth v. Dale, 86
Mass. App. Ct. 187, 191 (2014) (earlier disclosure, which victim
did not remember making, admissible because it advanced
doctrine's purpose of "refut[ing] the stereotype that silence is
evidence that the [victim] lacks credibility").
Furthermore, whether or not the disclosure to Nunez
constituted a first complaint, the judge was within her
discretion to admit it as a prior consistent statement of the
12 victim. See Commonwealth v. Arana, 453 Mass. 214, 220-221
(2009) (first complaint doctrine does not "prohibit the
admissibility of evidence that, while barred by that doctrine,
is otherwise independently admissible"). While prior consistent
statements are generally inadmissible, "an exception exists
where a trial judge makes a preliminary finding (1) that the
witness's in-court testimony is claimed to be the result of a
recent fabrication or contrivance . . . and (2) that the prior
consistent statement was made before the witness had a motive to
fabricate." Commonwealth v. Caruso, 476 Mass. 275, 284 (2017).
See also Mass. G. Evid. § 613(b). The findings need not be
explicit. See Caruso, supra. At sidebar before Nunez
testified, the judge stated that "the entire thrust of the
defense here . . . is fabrication" and that Nunez's testimony
about the victim's disclosure "rebuts the accusation of
fabrication, particularly given the fact that [the victim] did
not remember mentioning any sexual assault until years after it
had occurred." The judge thus determined that Nunez's testimony
was "relevant to the jury's determination of the weight that
they should give the evidence in light of the defense of
fabrication." This was within the judge's discretion. See id.
at 285 ("trial judges have broad discretion to determine whether
circumstances warrant the admission of prior consistent
statements to rebut a claim of a recent fabrication").
13 3. Closing argument. The defendant challenges various
portions of the prosecutor's closing argument as improper.
Because the defendant objected to each of the statements, we
review for prejudicial error. See Commonwealth v. Cole, 473
Mass. 317, 333 (2015).
The defendant first argues that the prosecutor improperly
vouched for the credibility of the witnesses and expressed her
own opinion about the evidence by repeatedly characterizing the
witnesses and evidence as "credible." We are not persuaded.
All of the challenged statements were based on the evidence and
did not constitute vouching, as none "express[ed] a personal
belief in the credibility of a witness, or indicate[d] that [the
prosecutor] ha[d] knowledge independent of the evidence before
the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
In a similar vein, the defendant argues that the prosecutor
vouched for the victim's credibility by commenting on her
testimony regarding the makeshift lock on the bedroom door and
expressed her personal opinion about the lack of semen evidence
found on the victim's bedding. Regarding the lock, the
prosecutor stated, "This lock screams credibility. Who thinks
of this? A child. Scissors, ladies and gentlemen, to keep
somebody out of a room. No adult would come up with this."
Regarding the lack of semen evidence, the prosecutor stated,
"[S]ometimes, ladies and gentlemen, things drip. Things drip
14 off. But you know from the evidence that nothing dripped this
time. The fact that nothing dripped onto the sheets in no way
suggests to you that this didn't happen." The defendant does
not explain, nor do we see, how these statements expressed the
prosecutor's personal belief in the victim's credibility or
suggested that she had knowledge outside the evidence. See
Wilson, 427 Mass. at 352. We conclude instead that the
statements were permissible inferences from the evidence or, at
worst, "[e]nthusiastic rhetoric." Id. at 350, quoting
Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).
Finally, the defendant argues that the prosecutor appealed
to the jury's sympathies and inflamed their passions by
describing the demeanor of the victim and her sisters when they
testified. For example, the defendant challenges the
prosecutor's statements that the victim "started to cry when she
had to start talking about the time she was removed from her
mother" and that the "fear of being removed by DCF was real, it
was raw, and it's palpable." He also challenges statements such
as, "[t]hink about how [the sisters] testified, their demeanor
as they broke down on the stand and told you the horrific things
that this Defendant did to them when they were children." We do
not agree that these statements were improper. "A prosecutor
can address, in a closing argument, a witness's demeanor, motive
for testifying, and believability, provided that such remarks
15 are based on the evidence, or fair inferences drawn from it, and
are not based on the prosecutor's personal beliefs."
Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). The
prosecutor's statements here did not stray from the evidence and
permissibly "invited the jurors to draw a conclusion from their
own observations of [the witnesses] as [they] testified."
Commonwealth v. Pearce, 427 Mass. 642, 644 (1998). We conclude
that they "were within the bounds of proper argument." Id.
Judgments affirmed.
By the Court (Green, C.J., Shin & Hershfang, JJ.6),
Clerk
Entered: July 17, 2023.
6 The panelists are listed in order of seniority.