Commonwealth v. Miguel Cordova.

• Court: Massachusetts Appeals Court
• Decided: June 11, 2026
• Docket: 25-P-0492
• Status: Unpublished

Opinion

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

25-P-492

COMMONWEALTH

vs.

MIGUEL CORDOVA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Middlesex Superior Court, the

defendant was found guilty of rape of a child, aggravated by age

difference, G. L. c. 265, § 23A, rape of a child by force, G. L.

c. 265, § 22A, and indecent assault and battery on a person over

fourteen, G. L. c. 265, § 13H. The defendant appeals his

convictions, raising multiple arguments. We affirm.

Background. The defendant was in a long-term romantic

relationship with S.R. between approximately 2008 and 2020. The

victim, A.R., is S.R.'s teenage daughter born in 2005. The

Commonwealth alleged that the defendant, who has no medical

1 As is our custom, we set forth the defendant's name as it appears in the indictments, although his name is followed by the generational suffix "III" elsewhere in the record. background, sexually assaulted her on divers dates, beginning

after her thirteenth birthday in 2018, and ending on November

21, 2020, by pretending to perform "checkups" on her breasts and

vagina, taking notes on her development, sometimes using a

measuring tape, rubbing her nipples, labia, and/or clitoris, and

taking photographs of her vagina. The defendant was indicted on

counts of aggravated rape of a child, in violation of G. L.

c. 265, § 23A (count one); rape of a child by force, in

violation of G. L. c. 265, § 22A (count two); indecent assault

and battery on a child under age fourteen, in violation of G. L.

c. 265, § 13B (count three); indecent assault and battery on a

person over age fourteen, in violation of G. L. c. 265, § 13H

(count four); and posing a child in a state of nudity, in

violation of G. L. c. 272, § 29A (a) (count five).

The defense was that S.R. manipulated A.R into fabricating

the claims against the defendant as revenge for his infidelity.

After a motion in limine, the judge admitted evidence of S.R.'s

anger with the defendant prior to the date of the first

complaint, November 21, 2020. This included evidence of S.R.

accosting the defendant and his then-girlfriend in September,

2020, at the girlfriend's house. The judge excluded, however,

evidence of her anger after that date, including a videotape of

S.R. confronting the defendant's girlfriend at a Target store.

2 At trial, Facebook messages from a purported conversation

between S.R. and the defendant on November 22, 2020, the day

after the first complaint, were admitted against the defendant.

Following a jury trial, the defendant was found guilty on

counts one, two, and four, and not guilty on counts three and

five. In this, his direct appeal, he argues that 1) the trial

judge wrongfully excluded evidence of S.R.'s postaccusation

confrontation with his then-girlfriend; 2) he was convicted of

duplicative offenses because aggravated rape of a child is a

lesser-included offense of rape of a child by force; 3) there is

a substantial risk that he may have been convicted of unindicted

crimes; and 4) the trial judge wrongfully admitted the Facebook

messages without appropriate authentication and without

instructing the jury they must find the defendant their author

by a preponderance of the evidence before convicting him.

Discussion. 1. Exclusion of video evidence. Defendant

first argues that the trial judge wrongfully excluded the

testimony and video evidence showing S.R.'s postaccusation

confrontation with the defendant's then-girlfriend in a Target

store.

"Cross-examination of a prosecution witness to show the

witness's bias or prejudice is a matter of right under the Sixth

Amendment to the Constitution of the United States and art. 12

3 of the Declaration of Rights of the Commonwealth." Commonwealth

v. Avalos, 454 Mass. 1, 6 (2009), quoting Commonwealth v.

Allison, 434 Mass. 670, 681 (2001). However, a trial judge also

has broad discretion to limit cross-examination concerning

possible bias "when further questioning would be redundant,

where there has been such 'extensive inquiry' that the bias

issue 'has been sufficiently aired,' or where the offered

evidence is 'too speculative'" (citations omitted).

Commonwealth v. Meas, 467 Mass. 434, 450 (2014).

The Commonwealth argues that the incident is irrelevant

because S.R. was neither the victim nor the first complainant,

and S.R. confronted not the defendant but his then-girlfriend.

The defendant's theory was that S.R. caused A.R. to accuse the

defendant falsely after being provoked by the defendant's

infidelity with the girlfriend while he and S.R. were still

together.

The video evidence is relevant in that it supports the

defendant's theory and may be a demonstration of S.R.'s

continuing anger toward the defendant. We nevertheless find

that, even if the exclusion were error, the defendant was not

prejudiced by it, because the defendant was able to

"sufficiently air[]" his theory of S.R.'s bias against him.

Avalos, 454 Mass. at 7, quoting Commonwealth v. LaVelle, 414

4 Mass. 146, 154 (1993). Defense counsel was permitted to

introduce testimony, and cross-examine S.R., regarding three

separate incidents where S.R. expressed anger toward the

defendant or the girlfriend. As a result, we conclude that

"there was extensive inquiry into the witness's bias and

credibility in general." LaVelle, supra. To be sure, the

defendant points out that after S.R. was cross-examined about

her conduct toward the defendant and the girlfriend in

September, when she accosted them, she testified on redirect

that following that incident she texted with the girlfriend and

believed that they were, while not friendly, "at peace." And

the video evidence might have undermined that claim in the eyes

of the jury.

But given S.R.'s testimony that she was not "friendly" with

the defendant in November 2020, albeit they were still together,

we do not think the statement about being "at peace" with the

girlfriend significantly undermined the defense claim about

S.R.'s anger at the defendant such that the inability to cross-

examine her based on the postdisclosure video was prejudicial.

A judge's decision to restrict cross-examination is "not subject

to reversal unless the defendant can show he was prejudiced by

too narrow a restriction in his cross-examination

rights." Commonwealth v. Syrafos, 38 Mass. App. Ct. 211, 219

5 (1995), quoting Commonwealth v. O'Connor, 407 Mass. 663, 672

(1990).

2. Lesser-included offense. Defendant argues next that,

rape of a child aggravated by age difference, G. L. c. 265,

§ 23A, is a lesser-included offense of rape of a child by force,

G. L. c. 265, § 23A, such that the charges are duplicative and

he cannot be convicted of both charges for the same conduct. We

review this question of law de novo, see Commonwealth v.

Rodriguez, 476 Mass. 367, 369 (2017), but, since this claim was

not preserved below, will reverse only if the defendant

demonstrates a substantial risk of a miscarriage of justice.

This issue was addressed by this court in Commonwealth v.

Foreman, 101 Mass. App. Ct. 398, 410-411 (2022), which concluded

that rape of a child aggravated by age difference is not a

lesser included offence of rape of a child by force. Id. The

defendant argues that, at least when applied to defendants who

were over twenty-five at the time of the alleged crimes, Foreman

was wrongfully decided, because such individuals cannot commit

rape of a child by force without also committing aggravated rape

of a child.

However, as the Supreme Judicial Court has clarified in

Commonwealth v. Vick, 454 Mass. 418, 431 (2009), we have adopted

an "elements-based approach" for reviewing "whether multiple

6 convictions stemming from one criminal transaction are

duplicative." "As long as each offense requires proof of an

additional element that the other does not, 'neither crime is a

lesser-included offense of the other, and convictions on both

are deemed to have been authorized by the Legislature and hence

not [duplicative].'" Id., quoting Commonwealth v. Jones, 382

Mass. 387, 393 (1981).

As the court explained in Foreman, "The crime of rape of a

child by force requires proof that the defendant compelled the

child to submit by force or by threat of bodily injury. . . .

The crime of aggravated child rape requires either greater than

a five- or greater than a ten-year age difference . . . or that

the defendant be a mandated reporter." Foreman, 101 Mass. App.

Ct. 410-411. "As freestanding crimes, the offenses 'are not

duplicative because each . . . requires proof of an element

[that] the other does not.'" Id. at 410, quoting Commonwealth v.

Brule, 98 Mass. App. Ct. 89, 94 (2020). When there are cases in

which, because of the particular facts, a defendant's conduct

violates both statutes, he may be charged with and convicted of

both. That, after a certain age, one of the facts required to

prove one of the crimes is static does not change that.

3. Unindicted crimes. The indictment charged distinct

events on divers dates. Hypothesizing that the grand jury may

7 not have meant to indict the defendant for a single event

alleged to have taken place at his house, or for the multiple

events alleged to have taken place at S.R. and A.R.'s house, the

defendant argues that he may have been convicted of an

unindicted event, even though the judge gave a specific

unanimity instruction.

This, however, is not a case like Commonwealth v. Barbosa,

421 Mass. 547 (1995), in which the grand jury were presented

with evidence of two separate, distinct transactions on one date

that constituted distribution of cocaine, but only returned an

indictment for one count of distribution of cocaine. Id. at

550. The grand jury here were presented with evidence of a

continuing course of conduct by the defendant over several

years. "[I]t is well established that a single indictment for

rape is proper where the alleged multiple acts of penetration

are part of a continuing criminal episode" that took place on

divers dates. Commonwealth v. Crowder, 49 Mass. App. Ct. 720,

721-722 (2000). See G. L. c. 277, § 32 ("An allegation that a

crime was committed or that certain acts were done during a

certain period of time next before the finding of the indictment

shall be a sufficient allegation that the crime alleged was

committed or that the acts alleged were done on divers days and

times within that period"). When an indictment alleges criminal

8 conduct on divers dates during a specific period of time, like

the challenged indictment here, evidence of any one separate,

specific incident may support a conviction under that indictment

at trial, so long as the judge provides a specific unanimity

instruction to the jury and the verdict is unanimous as to the

specific incident. See Commonwealth v. Conefrey, 420 Mass. 508,

510-513 (1995).

4. Authentication. Finally, the defendant argues that the

trial judge erred in admitting Facebook messages because the

evidence was insufficient to support a finding by a

preponderance of the evidence that he wrote them, and that the

trial judge erred by failing to instruct the jury that, in order

to consider them, they had to find by a preponderance of the

evidence that the defendant authored them. The defendant filed

a motion to exclude the messages and contested their

authentication in the trial court, so we review their admission

for abuse of discretion. Commonwealth v. Meola, 95 Mass. App.

Ct. 303, 312 (2019). The defendant did not request a jury

instruction about the evidence or otherwise object to the jury

instruction given at trial, so we review the jury-instruction

issue for a substantial risk of a miscarriage of justice. See

Commonwealth v. Desiderio, 491 Mass. 809, 810 (2023).

9 We conclude that the Facebook messages were adequately

authenticated. The defendant cites Commonwealth v. Williams,

456 Mass. 857, 868-869 (2010), in which the Supreme Judicial

Court held that MySpace messages purportedly sent by the

defendant's brother were inadmissible without proper

authentication. However, the Facebook messages in our case

include significantly more "confirming circumstances" reflecting

their authenticity than the MySpace messages in Williams. See

Commonwealth v. Purdy, 459 Mass. 442, 448-449 (2011). These

"confirming circumstances" include the defendant's photo

featured as the account's profile picture, the use of the same

alias used by the defendant's other social media accounts, and

the inclusion of details known only to S.R. and the defendant

that matched S.R.'s testimony about what happened after the

first complaint.

As for the jury instructions, even though this court

previously recognized in Commonwealth v. Foster F., 86 Mass.

App. Ct. 734, 738 (2014), that it is a "better practice" to

instruct the jury that before considering electronic

communication, they must find by a preponderance of the evidence

that the defendant is the author, we have never held that it is

required. Here the trial judge did instruct the jury to

"determine what evidence to accept, how important any evidence

10 is . . . and what conclusions to draw from all the evidence."

In light of that, even if there was error here, it did not

create a substantial risk of a miscarriage of justice. See

Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759 n.8 (2016).

Judgments affirmed.

By the Court (Rubin, Desmond & Allen, JJ.2),

Clerk

Entered: June 11, 2026.

2 The panelists are listed in order of seniority.