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18-P-687 Appeals Court
COMMONWEALTH vs. JORGE PENA.
No. 18-P-687.
Suffolk. April 8, 2019. - December 5, 2019.
Present: Vuono, Wolohojian, & Hand, JJ.
Rape. Unnatural Sexual Intercourse. Constitutional Law, Confrontation of witnesses. Evidence, First complaint. Practice, Criminal, Confrontation of witnesses, Argument by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court Department on March 9, 2016.
The cases were tried before Edward P. Leibensperger, J.
Joseph Visone for the defendant. Amanda Teo, Assistant District Attorney (Sarah McEvoy, Assistant District Attorney, also present) for the Commonwealth.
VUONO, J. A jury in the Superior Court convicted the
defendant on two indictments charging him with rape of a child
aggravated by age difference.1 The victim, whom we shall call
1 The defendant also was convicted of two counts of indecent assault and battery on a child under the age of fourteen. The 2
Alice, is the daughter of the woman with whom the defendant was
living. One indictment charged rape by natural sexual
intercourse. The other charged rape by unnatural sexual
intercourse.
The defendant raises three issues on appeal. First, he
contends that the judge erred by admitting testimony under the
first complaint doctrine from a witness who was not the first
person to hear of the rapes. Second, the defendant claims the
evidence was insufficient to support his conviction on the
indictment charging unnatural sexual intercourse because the
Commonwealth failed to prove the element of penetration. That
indictment alleged that the defendant "did unlawfully have
unnatural sexual intercourse with and abuse [Alice] by
penetrating the mouth of [Alice] with his ejaculate." Third, he
asserts the prosecutor improperly vouched for Alice's
credibility during her closing argument. We affirm.
1. Background. a. The Commonwealth's case. We summarize
the evidence presented in the Commonwealth's case-in-chief in
the light most favorable to the Commonwealth. See Commonwealth
v. Latimore, 378 Mass. 671, 677 (1979). Alice was living in an
apartment in the Dorchester section of Boston with her mother
and her three sisters when the defendant began to sexually abuse
judge allowed the defendant's motion for a required finding of not guilty on a third count charging this offense. 3
her. Alice was eleven years old at the time. The family was
under significant stress because Alice's mother was ill and not
able to work, Alice's thirteen year old sister was diagnosed
with a neurodegenerative disorder, and Alice's younger sisters,
five year old twins, needed supervision and care. The
defendant, who had been involved in a romantic relationship with
Alice's mother for about ten years, was the family's main source
of financial support.
Alice testified that the defendant sexually abused her on
three occasions while she was in the sixth grade. On the first
occasion, Alice found herself home alone with the defendant and
her older sister one day after school. At the time, the sister
could not walk without assistance. The defendant took Alice to
the bedroom he shared with Alice's mother and began to fondle
her. He touched Alice's breasts and kissed her on the lips.
The second incident started the same way. Alice and her
older sister were home alone with the defendant; the defendant
took Alice into the bedroom where he touched her breasts and
kissed her. This time, however, the defendant proceeded to
remove Alice's pants and underwear and "put" her on the bed. He
then raped Alice by inserting his penis into her vagina. Next,
he told Alice to get onto the floor on her knees and open her
mouth. When she did so, he ejaculated into her mouth. Alice
testified that the defendant "put [ejaculate] in my mouth." She 4
then "threw up [the ejaculate] in the bathroom." The defendant
told Alice not to tell anyone and suggested that the family
would be ashamed of her. Alice felt guilty and kept silent.
The third incident occurred when Alice's mother and older
sister were in California, where the older sister was receiving
experimental medical treatment, and Alice and her younger
sisters were staying with an aunt. One of the sisters became
ill and needed medicine from home. The defendant drove Alice
from her aunt's home to the family's apartment to retrieve the
medicine. While the defendant and Alice were alone in the
apartment, the defendant pulled Alice into the mother's bedroom
and had sexual intercourse with her.2 This time the defendant
ejaculated onto his hand. The defendant told Alice not to tell
anyone and instructed her to tell her aunt that they were late
due to traffic and because they had trouble opening the door of
the apartment. Alice followed the defendant's instructions.
Alice continued to remain silent about the sexual abuse
until the end of the school year when she met her mother's
younger brother, Manuel Valdez. Valdez had just moved to Boston
and met Alice for the first time. Alice sent Valdez a number of
graphic text messages telling him that she wanted "to have sex"
with him. She also wrote that she wanted to "suck him off,"
2 The defendant was not charged with rape in connection with this incident for reasons that are not apparent in the record. 5
"twerk in front of him," "do doggie," and "do it in the
bathroom." Valdez was taken aback and asked Alice how she knew
about such things. Alice responded with a text message stating
that she "had sex" with the defendant. Valdez sought advice
from his brother, Cristino Jimenez Medina,3 and showed him the
text messages. At some point, Alice's mother was told about the
text messages and Alice's accusation. She confronted Alice.
Initially, Alice denied what had happened between her and the
defendant, but she subsequently told her mother about the abuse.
Alice's mother was not supportive. She told Alice to lie
to investigators from the Department of Children and Families
when they came to the home to interview her. Alice's mother
said that if Alice disclosed the abuse, her sisters would be
taken away. At her mother's direction, Alice also denied the
abuse to health care providers at the Bowdoin Street Health
Center.
b. The defendant's case. The defendant mounted a vigorous
defense. He testified on his own behalf and denied the
allegations. The defense theory was that Alice was not
credible. To this end, the defendant introduced testimony from
numerous witnesses to demonstrate inconsistencies in Alice's
3 Medina is identified as "Cristino Jimenez" in the transcript. We therefore refer to him as "Jimenez" to avoid confusion. 6
testimony and presented deposition testimony from Alice's
mother, who claimed that the defendant was rarely home alone
with the girls.4 He also presented evidence through testimony
and photographs that Alice was not truthful when she testified
his penis looked "normal" because he had a "domino chip"
embedded subcutaneously into his penis and it was noticeable.
Defense counsel argued in closing that Alice felt overwhelmed by
her family's situation and fabricated the abuse in order to gain
attention. Defense counsel also argued that an additional
motive for Alice to lie was to avoid admitting that she was
familiar with sexual activity because she had watched
pornography.
2. Discussion. a. First complaint testimony. As
previously noted, Alice first disclosed the defendant's sexual
abuse in a series of text messages she sent to her uncle,
Valdez, who, in turn, showed the messages to his brother,
Jimenez. By the time of trial, the text messages no longer
existed and Valdez was unavailable to testify because he was
incarcerated out of state. These circumstances led the
Commonwealth to file a motion in limine seeking permission to
call Jimenez as a substitute first complaint witness. At a
nonevidentiary hearing on the motion, before the judge who
4 Alice's mother was too ill to attend the trial. 7
presided at trial, defense counsel stated that he did not object
as long as Jimenez testified about all the text messages,
including those in which Alice had made sexually provocative
comments.5 The prosecutor agreed to this condition and the judge
allowed the motion. Jimenez subsequently testified at trial
without objection.
The defendant now argues that the judge should not have
permitted Jimenez to testify as a substitute first complaint
witness for two reasons: first, the defendant claims that the
testimony was inadmissible hearsay; and second, he argues that
his right to confront witnesses against him, under the Sixth
Amendment to the United States Constitution, was violated
because he could not cross-examine Valdez. As neither claim was
preserved at trial, we consider the defendant's arguments under
the substantial risk of miscarriage of justice standard.
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Under that
standard, an error creates a substantial risk of a miscarriage
of justice "unless we are persuaded that it did not 'materially
influence[]' the guilty verdict." Id., quoting Commonwealth v.
Freeman, 352 Mass. 556, 564 (1967). Applying this standard to
5 We note that some of the text messages were translated from English to Spanish by Valdez when he showed the messages to Jimenez. The defendant has not made a meaningful challenge to the accuracy of those translations. 8
this case, we conclude that neither alleged error warrants
vacating the convictions.
To begin with, the rule against hearsay was not implicated
because first complaint evidence may be considered only for
specific limited purposes and not for the truth of the matter
asserted, namely, that the assault in fact occurred. See
Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert.
denied, 546 U.S. 1216 (2006); Mass. G. Evid. § 413(a) (2019).
Furthermore, the judge acted within his discretion when, after
determining that Valdez was not available, the judge permitted
Jimenez to testify as the substitute first complaint witness.
See King, supra at 243-244 ("In limited circumstances, a judge
may permit the testimony of a complaint witness other than, and
in lieu of, the very 'first' complaint witness. For example,
where the first person told of the alleged assault is
unavailable, . . . the judge may exercise discretion in allowing
one other complaint witness to testify"). See also Commonwealth
v. Murungu, 450 Mass. 441, 445-446 (2008). Here, the judge
properly informed the jury that Jimenez was testifying instead
of Valdez because Valdez was not available, and the judge
instructed them, in accordance with King, about the limited
purpose of first complaint testimony. He explained that the
testimony was admitted only to assist the jury in determining
whether to credit Alice's testimony about the sexual assaults 9
and could not be used as evidence that the assaults occurred.
This instruction was given when Alice testified about the text
messages and was repeated during Jimenez's testimony and in the
judge's final instructions. In light of these circumstances, we
discern no merit in the defendant's argument that the admission
of Jimenez's testimony was an error that created a substantial
risk of a miscarriage of justice.
The defendant's claim that he is entitled to a new trial
because he did not have the opportunity to cross-examine Valdez
also fails. First, as we have noted, the defendant waived his
right to cross-examine Valdez by agreeing to the Commonwealth's
request to have Jimenez testify as the substitute first
complaint witness. This was a wise tactical decision. The
defendant clearly benefited from Valdez's absence. Jimenez
either was not willing or could not provide the details of
Alice's disclosure of sexual abuse when he was asked to do so by
the prosecutor, but he relayed in detail Alice's inappropriate
comments soliciting sexual activity with Valdez. We note that,
in her closing argument, defense counsel relied heavily on
Alice's graphic invitation to engage in sexual acts with Valdez
in order to discredit Alice. In addition, the defendant was not
totally deprived of his right to confront witnesses against him.
He had the opportunity to cross-examine both Alice and Jimenez.
Thus, "the purpose and value of confrontation" were sufficiently 10
served. Commonwealth v. Amirault, 424 Mass. 618, 651-652
(1997). Consequently, we are confident that even if there was
error, it did not materially influence the guilty verdict. See
Alphas, 430 Mass. at 13.6
b. Sufficiency of the evidence of unnatural sexual
intercourse. The defendant argues the evidence was insufficient
to sustain a conviction on the indictment charging him with rape
by unnatural sexual intercourse because the Commonwealth failed
to prove the element of penetration. The defendant does not
dispute that the jury were warranted in finding beyond a
reasonable doubt that his ejaculate entered Alice's mouth. He
claims, however, that such conduct does not establish
penetration without evidence of "skin to skin" contact.
The defendant's argument has both legal and factual
underpinnings. We first address his legal argument, with which
we disagree, that the conduct at issue, as a matter of law, does
not constitute the crime of rape.
While it is true that convictions of rape are frequently
proven with evidence demonstrating some degree of penetration
that involves skin-to-skin contact between the perpetrator and
6 The case might stand on a different footing if there was an allegation that the text messages were inaccurately conveyed from Valdez to Jimenez, but there was no such allegation. In light of the surrounding circumstances, including that Alice's testimony and Jimenez's testimony were largely similar, we need not discuss this issue further. 11
the victim, our cases do not require such evidence to prove the
element of penetration in the context of unnatural sexual
Recently, in Commonwealth v. Prado, 94 Mass. App. Ct. 253,
261 (2018), we held that a defendant who forced the victim at
gunpoint to penetrate her vagina with her fingers was guilty of
rape. As we explained in that case, "the scope of the term
'unnatural sexual intercourse' is broad, and . . . the
Legislature necessarily intended to treat modes of sexual
connection other than common law rape as equally serious
invasions of personal integrity" (quotation and citation
omitted). Id. at 257. "[O]ur precedent recognizes the myriad
ways by which rape is perpetrated, even without physical contact
by the defendant." Id. at 258. "The common thread in these
cases is some form of forced penetration compelled by the
defendant, and not a literal touching by the defendant." Id.
The essence of the crime of rape is "an intrusion into another's
(i.e., the victim's) [body], by an object . . . committed
through the force of the defendant." Id. We held in Prado that
the defendant's choice to penetrate the victim with her own
fingers did not render the act a lesser crime on the defendant's
part. Id. at 259. We have held the same in cases where a
defendant forced a third party to penetrate the victim or where
the penetration was perpetrated through the use of a foreign 12
object. See Commonwealth v. Cifizzari, 397 Mass. 560, 577
(1986) ("rape committed by unnatural sexual intercourse
encompasses penetration by the use of inanimate objects," here,
mop handle); Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362
(1992) (defendant forced third party to penetrate victim's
vagina with his tongue and fingers). See also Commonwealth v.
Jansen, 459 Mass. 21, 29 (2011) (penetration could be inferred
from evidence of hair tie found in victim's vagina because hair
tie tested positive for defendant's deoxyribonucleic acid);
Commonwealth v. Guy, 24 Mass. App. Ct. 783, 785-787 (1987)
(defendants guilty of rape for forcing victim to perform
cunnilingus on two consenting women).
Here, the evidence was that during the course of a sexual
assault the defendant caused his ejaculate to enter Alice's
mouth. Thus, there was physical penetration between the
defendant and Alice. The deposit of ejaculate into the mouth of
a victim is a "mode[] of sexual connection" that involves a
"serious invasion[] of personal integrity." Prado, 94 Mass.
App. Ct. at 257. In our view, such conduct is no less
physically intrusive than committing rape by forcing a victim to
penetrate her vagina with her fingers or by using a foreign
object to penetrate the victim. See id. at 258; Nuby, 32 Mass.
App. Ct. at 362; Guy, 24 Mass. App. Ct. at 787. See also
Jansen, 459 Mass. at 29; Cifizzari, 397 Mass. at 576-578. We 13
therefore conclude, as a matter of law, that the defendant's
conduct falls within the broad definition of unnatural sexual
The defendant also argues that there was insufficient
evidence of penetration given the absence of direct evidence of
skin-to-skin contact between himself and Alice. But direct
evidence of skin-to-skin contact is not required; "[p]enetration
can be inferred from circumstantial evidence." Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000).7 The Commonwealth maintains
that a rational juror could infer beyond a reasonable doubt that
there was contact between the defendant's penis and Alice's
mouth when the defendant ejaculated. Such contact, the
Commonwealth argues, was sufficient to prove the element of
penetration. See Commonwealth v. Enimpah, 81 Mass. App. Ct.
657, 660-661 (2012) (to meet its burden of proof for offense of
rape, Commonwealth must present evidence of penetration of
victim, regardless of degree). Additionally, the Commonwealth
notes that our case law recognizes that "when young children
testify about sexual assault, their description of penetration
need not be precise." King, 445 Mass. at 224. Given our
conclusion above that the facts constituted a mode of sexual
7 The Commonwealth can prove its case by direct evidence or solely by circumstantial evidence as long as the inferences drawn from the evidence are "reasonable and possible" (citation omitted). Commonwealth v. Robertson, 408 Mass. 747, 755 (1990). 14
connection, it is not necessary for us to decide whether the
circumstantial evidence here, taken in the light most favorable
to the Commonwealth, would permit an inference of skin-to-skin
contact and, as a result, established penetration.
c. Prosecutor's closing argument. During its case-in-
chief, the Commonwealth presented testimony from Dr. Stephanie
Block, an expert on child sexual abuse, to assist the jury in
understanding certain aspects of Alice's behavior. Block
testified about the general behavioral characteristics common in
sexually abused children. In her closing argument, the
prosecutor urged the jury to consider Block's testimony in
evaluating Alice's credibility:
"[T]hink about Dr. Stephanie [Block] who testified she knows nothing about this case. . . . Her testimony was to inform you, to help you understand the research and the way in which child victims of sexual abuse disclose or delay or recant and the factors that . . . the research has shown matters to child victims of sexual abuse. And I'd ask you to think about what she told you as you consider the Commonwealth's case, as you evaluate the credibility of witnesses. . . . She gave you a lot of information about it, and I'd ask you to keep that in the back of your mind as you evaluate the Commonwealth's case."
Defense counsel objected to these remarks, claiming that the
prosecutor had impermissibly vouched for Alice's credibility.
We therefore review the defendant's claim under the prejudicial
error standard, see Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994), and "evaluate whether the defendant was prejudiced 15
thereby, considering the remarks in the context of the entire
argument, the trial testimony, and the judge's instructions to
the jury." Commonwealth v. Beaudry, 445 Mass. 577, 584 (2005).
The prosecutor's comments were well within the bounds of
proper argument and did not constitute error. See Mass. G.
Evid. § 1113(b)(2) (2019). The prosecutor did not suggest that
she or Block had personal knowledge or a personal belief that
Alice was telling the truth, nor did the prosecutor misstate
Block's testimony or make an appeal for sympathy. To the
contrary, the prosecutor appropriately asked the jury to
consider Block's testimony to the extent it might help them in
assessing Alice's credibility. Even if there was error, we
conclude that it was not prejudicial in light of the judge's
forceful instruction to the jury that an expert witness should
be treated like any other witness, and in light of the judge's
emphasis on the jury's role as the finders of fact. As the
judge put it, "You must remember expert witnesses do not decide
cases. Juries do." The judge also instructed the jury that
closing arguments are not evidence.
Judgments affirmed.