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-993
COMMONWEALTH
vs.
MIGUEL ANGEL RIVERA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of thirty-
three offenses related to his physical and sexual abuse of three
minor children. After a jury-waived trial, the defendant was
convicted of being a habitual offender. On appeal, the
defendant raises nine claims. We vacate the judgment of
conviction on count eleven of the indictment, charging attempted
indecent assault and battery on a person over the age of
fourteen, and set aside the verdict on that count. All other
judgments are affirmed.
1. Expert testimony. The defendant claims that Dr.
Stephanie Block's unobjected-to testimony regarding delayed
1 Also known as Jose Rolon or Miguel Rolon. disclosure by child sexual abuse victims requires reversal of
his convictions of rape and indecent assault and battery. In
particular, he claims that Dr. Block's testimony was not
relevant, did not serve an explanatory purpose, distorted the
fact-finding process, and improperly vouched for the child
victims. We disagree.
"A trial judge has broad discretion with respect to the
admission of expert testimony." Commonwealth v. Dockham, 405
Mass. 618, 628 (1989). "Expert testimony is required when the
testimony concerns matters beyond the common knowledge of the
jurors and will aid jurors in reaching a decision."
Commonwealth v. Berendson, 73 Mass. App. Ct. 395, 399-400
(2008), citing Commonwealth v. Frangipane, 433 Mass. 527, 533
(2001). See Commonwealth v. Hinds, 487 Mass. 212, 220-222
(2021) (expert testimony admissible where relevant and
scientifically reliable). We review a judge's decision to admit
expert testimony for an abuse of discretion. Commonwealth v.
Chism, 495 Mass. 358, 375 (2025).
Here, the defendant's abuse of the child victims began in
2016, and continued through 2020, when it was disclosed. The
defense at trial was that the child victims had fabricated the
allegations because they hated the defendant, for breaking their
cell phones and yelling at them, and wanted him out of their
2 lives. In this light, the expert testimony on delayed
disclosure was of assistance in assessing a victim witness's
testimony and relevant because jurors may equate that delay with
dishonesty.2 See Commonwealth v. Hudson, 417 Mass. 536, 540-541
(1994); Dockham, 405 Mass. at 629. Also, the jury were aware
that Dr. Block never examined or saw the child victims, which
mitigates the risk that the jury believed Dr. Block was vouching
for the victims' credibility. See Commonwealth v. Federico, 425
Mass. 844, 849 (1997). See also Commonwealth v. Quinn, 469
Mass. 641, 647-648 (2014) (risk of improper vouching "especially
acute" where expert treated victim). Finally, the judge further
minimized any potential risk of misuse by giving limiting
instructions immediately after Dr. Block's testimony, and again
in the final charge. The instructions emphasized that
credibility determinations and fact finding remained the
exclusive province of the jury. See Commonwealth v. Richardson,
423 Mass. 180, 184-185 (1996).
2 Dr. Block, who had a Ph.D. in psychology, had no familiarity with the child victims or the defendant's case, but in general, noted that children may delay the disclosure of sexual abuse because of shame, embarrassment, stigma, fear, threats, or because they were afraid of the consequences. She also noted that a victim's relationship with the abuser could result in a delayed disclosure, and that the closer the relationship, the more difficult it may be for the child to disclose.
3 2. Medical records of E.C. The defendant claims that the
convictions of rape and indecent assault and battery of E.C.,
one of the child victims, must be reversed because E.C.'s
medical records, which included her Sexual Assault Nurse
Examiner (SANE) interview, were not properly redacted and
repeatedly said that E.C. was the victim of sexual assault.
Accordingly, the defendant claims the medical records, which
were admitted in evidence without objection, created a
substantial risk of a miscarriage of justice. We disagree.
Here, the parties agreed to admit in evidence E.C.'s
medical records pursuant to G. L. c. 233, § 79, subject to
specific redactions. The defendant's trial counsel expressly
noted his satisfaction with the redactions. In this posture, we
review for error, and if one occurred, whether it created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Dargon, 457 Mass. 387, 397 (2010). There was neither error,
nor an abuse of discretion. See Commonwealth v. Aviles, 461
Mass. 60, 72 (2011).
In general, hospital records are admissible in evidence
pursuant to G. L. c. 233, § 79, to the extent they relate to a
patient's treatment or medical history, but not to liability.
We are to construe the statute "liberally" and permit the
admission of medical records that directly and primarily relate
4 to diagnosis or treatment, even if those records incidentally
touch on issues of liability. Dargon, 457 Mass. at 394;
Commonwealth v. Dube, 413 Mass. 570, 573 (1992).
The defendant finds fault in E.C.'s medical records because
they "repeatedly" refer to her as a "victim of sexual assault."
The first challenged entries relayed E.C.'s descriptions of the
causes of her injuries.3 However, even if these entries did not
relate to medical diagnosis or treatment, and fell outside the
purview of G. L. c. 233, § 79, there was no substantial risk of
a miscarriage of justice from their admission. See Dargon, 457
Mass. at 397. The redacted records did not identify the
defendant as the offender, nor did they express any opinion
about his guilt. In this light, the records did not carry the
imprimatur of the hospital's belief in the defendant's guilt.
See Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).
The defendant also challenges an entry which stated, "[h]e
threatened to smash her phone and tell her mother." The
Commonwealth properly concedes that this entry does not relate
to E.C.'s treatment or medical history. See G. L. c. 233, § 79.
However, because the defendant relied on this evidence to
3 The entries included, "Pt states he does it a lot. Pt reports on Thursday early morning about 0500 he entered her room and said we had to do it. Pt clarifies he put his penis in her vagina" (quotations omitted).
5 support his defense that the child victims hated him and wanted
him out of their lives because he destroyed their cell phones
and had a terrible temper, there is no risk that justice
miscarried as a result of the improper entry. Also, this entry
was cumulative of testimony that the defendant would break
things, including the child victims' cell phones.
3. Jury instruction on the defendant's arrest and
detention. The defendant further claims that an unobjected-to
jury instruction erroneously told the jury that they could use
the fact of the defendant's arrest and subsequent detention as
evidence of his guilt.4 We disagree.
The only authority the defendant cites in support of this
claim is Commonwealth v. Drayton, 386 Mass. 39, 45 n.4 (1982),
for the proposition that indictments are not evidence. While
that is undeniably true, it does little to support the
defendant's claim here. The defendant's arrest and custodial
status were directly relevant to the witness intimidation
counts, where he was alleged to have committed those crimes
after his arrest while in custody. See Commonwealth v. Facella,
478 Mass. 393, 401 (2017). In fact, they were closely
intertwined with his motive, intent, state of mind, and plan.
4 The defendant's argument is confined to the jury instruction; he does not claim the evidence should not have been admitted.
6 Most importantly, the judge carefully instructed the jury, both
contemporaneously with testimony regarding the defendant's
arrest and in the final charge, that the defendant's arrest and
detention could be considered only for limited, nonpropensity
purposes. At no point did the judge suggest that either was
evidence of the defendant's guilt, but rather stated the
contrary. There was no error, and thus, no risk that justice
miscarried.
4. Instruction on parental discipline privilege. For the
first time on appeal, the defendant claims that the judge should
have instructed the jury, sua sponte, on the parental discipline
privilege, relative to the counts charging assault and battery
against two of the child victims. We disagree.
The parental discipline privilege is an affirmative
defense. Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 461
(2018). Pursuant to the privilege,
"a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."
Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015).
7 As an affirmative defense, the defendant is required to
raise it to put the issue before the jury. See Commonwealth v.
Cabral, 443 Mass. 171, 179 (2005). If the applicability of the
privilege is properly before the jury, "the Commonwealth bears
the burden of disproving at least one prong of the defense
beyond a reasonable doubt." Dorvil, 472 Mass. at 13.
Here, the only authority the defendant cites in support of
his claim that the judge should have given an instruction on the
parental discipline privilege sua sponte is Dorvil, 472 Mass. at
12-13. However, in Dorvil, supra, the Supreme Judicial Court
merely recognized the defense. The case does not identify any
circumstances in which judges are required to instruct on the
privilege sua sponte. In fact, as stated above, Dorvil, supra
at 13, holds that it is an affirmative defense which defendants
are required to raise. That did not occur here. Accordingly,
the judge did not err by not instructing on the privilege in the
absence of a request.5
5 For the first time on appeal, the defendant also claims that his counsel was ineffective for not requesting an instruction on the privilege. "A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge." Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). We have no affidavit or testimony from the defendant's trial counsel relative to whether not requesting the instruction was a
8 5. Attempted indecent assault and battery. The defendant
also claims that his conviction of attempted indecent assault
and battery on a person over the age of fourteen cannot stand
because count eleven of the indictment did not expressly allege
the overt act underlying the attempt. The Commonwealth concedes
the error, and because the error is jurisdictional, we accept
the concession. See Commonwealth v. Cantres, 405 Mass. 238,
239-240 (1989); G. L. c. 277, § 79. The defendant's conviction
of this count must be vacated and that verdict set aside.
6. Open and gross lewdness. The defendant further claims
that his conviction of open and gross lewdness must be vacated
because there was insufficient evidence the conduct occurred in
the "open." See G. L. c. 272, § 16. We disagree.
matter of strategy; and, if it was not, we also have no findings from the judge whether it would have made a difference. However, what does appear on the record, as set forth in the defendant's closing argument, is that counsel argued that the defendant's discipline of the children, and destroying of their cell phones, made the child victims want the defendant out of their lives. To achieve that, counsel argued that the child victims fabricated the sexual assault allegations. Importantly, counsel never maintained that the defendant's discipline was reasonable, related to the protection of the child's welfare, or created no substantial risk of injury. To the contrary, he argued that the defendant was a violent disciplinarian, and the child victims wanted him gone. In this light, and on this record, we cannot conclude that counsel was ineffective for not requesting the instruction as it would have contradicted his defense strategy.
9 In order to prove the defendant guilty of open and gross
lewdness, among other elements not challenged here, the
Commonwealth must have proved the offending conduct occurred
"openly," that is, either he intended public exposure, or he
"recklessly disregarded a substantial risk of public exposure,
to others who might be offended by such conduct." Commonwealth
v. Kessler, 442 Mass. 770, 773 n.4 (2004). Conduct will be
considered "open" when it occurs in the presence of another
person who can be alarmed or shocked. Commonwealth v. Quinn,
439 Mass. 492, 496 n.9 (2003). There is no requirement for the
conduct to occur in a public place. Id.
Here, viewing the evidence in the light most favorable to
the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671,
677-678 (1979), the jury were entitled to find that the
defendant intentionally exposed his penis to ten year old I.R.R.
while the defendant was watching pornography, and told her he
wanted her to do what was depicted in the video footage.6 From
this evidence, the jury were entitled to find that the defendant
intentionally exposed his penis in the presence of a minor,
i.e., someone who plainly would be shocked and alarmed by the
6 The defendant's reliance on Commonwealth v. Catlin, 1 Mass. 8 (1804), is misplaced as that case involved a consensual act, albeit adulterous, between adults in private. Id. at 9-10. Here, in contrast, the defendant intentionally exposed his genitalia to a ten year old child.
10 conduct. This satisfied the "open" element of the crime. See
Quinn, 439 Mass. at 496 n.9.
7. Property of another. Next, the defendant claims that
there was insufficient evidence to support his malicious
destruction of property conviction because the Commonwealth
failed to prove that the child victims' cell phones that he
destroyed were "property of another." See G. L. c. 266, § 127.
We disagree.
The defendant essentially argues that because he and the
child victims' mother lived together, and were both employed,
the evidence only permitted the inference that the cell phones
were jointly owned personal property.7 The defendant also argues
that the Commonwealth did not present any evidence that E.C. and
I.R.R. owned the cell phones at issue. However, this argument
fails to view the evidence in the light most favorable to the
Commonwealth. See Latimore, 378 Mass. at 677-678. When viewed
through the proper lens, the jury were entitled to credit the
mother's testimony that she bought the cell phones, purchased
the family cell phone plan, and gave the cell phones to the
child victims. From this evidence, the jury could properly
7 In support of his jointly owned property claim, the defendant relies on domestic relations cases regarding equitable division of property. However, these cases are inapposite, and they do not inform the Latimore sufficiency question. See Latimore, 378 Mass. at 677-678.
11 conclude that the cell phones were not the defendant's property,
and therefore the defendant had destroyed the property of
another.
8. Abuse prevention order. The defendant also claims that
he was improperly convicted of violating an abuse prevention
order because he did not violate the provisions of G. L. c. 209A
that provide for criminal punishment. G. L. c. 209A, § 7. We
disagree.
In order to convict a person of violating G. L. c. 209A,
§ 7, the Commonwealth was required to prove that there was a
clear and active court order, that the defendant knew of the
order, and that he disobeyed it. See Commonwealth v. Delaney,
425 Mass. 587, 596–597 & n.9 (1997), cert. denied, 522 U.S. 1058
(1998). Here, the original order required, among other things,
that the defendant have no contact with his wife and the child
victims. Later, after a hearing, the order was modified to
permit limited telephone contact between the defendant and his
wife regarding matters related to the parties' impending divorce
and to the return, or division, of property. In essence, the
modified order left in place the general "no contact" provision
and created a narrow exception to that general provision.8
8 The "no contact" provision between the defendant and the wife was eventually vacated. The telephone calls which violated the order occurred prior to the provision being vacated.
12 From the evidence that the defendant called his wife
regarding matters outside the scope of what was permitted by the
modified order, the jury could conclude that he knowingly
violated the "no contact" provision. Contrary to the
defendant's claim, that conduct fell squarely within the
category of violations criminalized by G. L. c. 209A, § 7. See
Commonwealth v. Finase, 435 Mass. 310, 313-315 (2001); Delaney,
425 Mass. at 596-597.
9. Sentencing hearing. Finally, for the first time on
appeal, the defendant claims that he is entitled to a new
hearing because his counsel provided ineffective assistance at
the sentencing hearing. In particular, he claims that his
counsel should have asked for the minimum sentence within the
judge's authority to impose, and that counsel failed to
highlight favorable aspects of the defendant's life. We
The initial problem with the defendant's claim is that he
has raised it for the first time on direct appeal rather than
filing a motion for new trial. As stated above, claims of
ineffective assistance of counsel are appropriately brought on
direct appeal only when the factual basis of the claim appears
indisputably on the trial record. Commonwealth v. Keon K., 70
Mass. App. Ct. 568, 573-574 (2007); Commonwealth v. Zinser, 446
13 Mass. 807, 810 (2006). Although the record reveals the
sentencing argument at issue,9 we have no basis without an
affidavit or testimony from trial counsel to determine whether
the scope of counsel's argument was based on a tactical or
strategic decision; and, if so, whether that decision was
"manifestly unreasonable." Commonwealth v. Kolenovic, 471 Mass.
664, 674 (2015).
What does appear indisputably on the trial record is that
the defendant, who had lengthy criminal history spanning
decades, was convicted of thirty-three crimes, twenty-seven of
which were enhanced by the habitual offender statute.10 These
crimes were committed while the defendant was on probation, and
the defendant had committed other crimes of violence while he
was on probation in the past. The judge noted that given the
habitual offender sentencing enhancements, she had limited
discretion. In the end, despite the Commonwealth's request for
consecutive sentences and parole eligibility after twenty-five
years, the judge declined the Commonwealth's recommendation and
9 Although trial counsel acknowledged that the defendant had been convicted of "terrible crimes" and that "significant punishment" was required, he requested that the judge "craft" a sentence that would provide the defendant with an "opportunity of rehabilitation."
10Based on the evidence at trial, the judge would have been aware of some of the positive aspects of the defendant's life, including his work history and entrepreneurial interests.
14 imposed a mid-range sentence, with sentences for other crimes
running concurrently and parole eligibility after twenty years.
On this record, the defendant has not shown "that better work
[by defense counsel] might have accomplished something material
for the defense." Commonwealth v. Satterfield, 373 Mass. 109,
115 (1977).11
Conclusion. The judgment of conviction on count eleven of
the indictment, charging attempted indecent assault and battery
on a person over the age of fourteen, is vacated, and the
verdict on that count is set aside. All other judgments are
affirmed.
So ordered.
By the Court (Meade, Sacks & Wood, JJ.12),
Clerk
Entered: July 15, 2026.
11In addition to the ineffective assistance claims resolved separately above, the defendant makes a variety of ineffective assistance claims based on trial counsel's acts or omissions relative to the defendant's other enumerated claims. Given our determination that there were neither errors nor substantial risks of a miscarriage of justice, those acts or omissions cannot provide the predicate for his ineffective assistance of counsel claims. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).
12 The panelists are listed in order of seniority.