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-879
COMMONWEALTH
vs.
WILFREDO LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of two counts
of indecent assault and battery on a child under fourteen in
violation of G. L. c. 265, § 13B.1 The defendant appeals,
arguing that several erroneous rulings and statements in the
prosecutor's closing argument warrant reversal. Discerning no
error, we affirm.
Background. Based on the Commonwealth's evidence, the jury
could have found the following facts. In December 2017, the
victim was thirteen years old and living with her mother,
1The defendant was acquitted of a third count of indecent assault and battery on a child under fourteen; one count of assault and battery in violation of G. L. c. 265, § 13A (a); and one count of witness intimidation in violation of G. L. c. 268, § 13B. brother, younger sister, and the defendant, who was her
stepfather. One night, the defendant repeatedly asked the
victim, both verbally and via text message, to enter his bedroom
and lie down with him and her younger sister to watch a movie.
The victim's mother was not home at the time. The victim
initially did not want to watch the movie, but after the
defendant offered her money, the victim acquiesced.
The defendant was laying in the middle of the bed with the
victim's sister on one side of him and the victim on the other.
As the victim was laying on her side with her back to the
defendant, she felt the defendant rub his hand on her shorts
over her buttocks, reach inside her shirt and bra, and touch her
breasts. When the victim tried to move away from the defendant,
he prevented her from getting off the bed by pulling her back.
The victim managed to get off the bed and leave the bedroom.
Later, the defendant told the victim not to tell anyone and
kissed her on the head and apologized.
In February 2018, the victim informed her mother that the
defendant sexually assaulted her. The victim testified that she
overheard the defendant respond to her mother confronting him
with the accusation by stating, "the devil made [me] do it."2
2 The testimony of the victim's mother and a Department of Children and Families (DCF) social worker as to the mother's confrontation of the defendant differ from the victim's
2 Discussion. 1. Evidentiary rulings. We review the trial
judge's rulings for an abuse of discretion, as "[w]e do not
disturb a judge's decision to admit [or exclude] evidence absent
an abuse of discretion or other legal error." Commonwealth v.
Souza, 492 Mass. 615, 626 (2023), quoting Zucco v. Kane, 439
Mass. 503, 507 (2003).
a. Victim's other sexual assault allegations. The
defendant argues that the victim's allegations of sexual assault
against two of her peers were admissible as evidence of other
false accusations, and thus the judge abused his discretion by
not allowing the defendant to introduce this evidence.3 The
testimony. The mother testified that after she confronted the defendant about the victim's letter, the defendant told the mother that, "if he touched her for any reason, it was by mistake 'cause they're always playing around and goofing around." The DCF social worker testified to a conversation with the mother wherein the mother said that the defendant, in response to the victim's allegations, had "admitted to putting his hand on [the victim's] stomach and on her breast," thinking at first the victim was his wife, "and then realized it was not her." The judge instructed the jury that the DCF case worker's testimony was admitted solely for impeachment purposes.
3 After reporting the defendant's conduct to her mother in February 2018, the victim separately accused two male peers of sexually assaulting her while she participated in DCF's stabilization assessment and rapid reunification (STARR) service. In March of 2018, the victim reported to staff at STARR that she had been sexually assaulted by a fellow resident who asked her to perform oral sex. According to a DCF worker, the victim initially denied that the assault occurred, but later stated the assault had taken place. In October of 2019, the victim left the STARR program premises with two other residents, and after returning to the program, she reported that she had
3 defense alternatively argues that the allegations were
admissible to show a pattern of conduct, specifically, that the
victim would contrive allegations of sexual assault to deflect
attention from her misbehavior that occurred when she
participated in a DCF program. We are not persuaded.
With limited exceptions, evidence of a victim's sexual
conduct is not admissible. See Commonwealth v. Harris, 443
Mass. 714, 721 (2005), quoting G. L. c. 233, § 21B ("The statute
precludes admission of evidence of a victim's 'reputation' with
respect to 'sexual conduct,' as well as 'evidence of specific
instances of a victim's sexual conduct'"). One such exception
allows admission of evidence of other accusations, when such
accusations are "of the specific crime which is the subject of
the trial" and might "seriously damage[] the complainant's
credibility." Commonwealth v. Bohannon, 376 Mass. 90, 95
(1978), S.C., 385 Mass. 733 (1982). Before this exception may
apply, the defendant must make an "offer of proof," not only
that other allegations had been made but also that those
allegations were false. Id.
Here, the defendant failed to make an adequate offer of
proof that either of the victim's other two allegations were
been sexually assaulted by the male resident who had accompanied her.
4 false, which is required under Bohannon, 376 Mass. at 95. The
defendant asserts that the falsity of the victim's other two
accusations was sufficiently established by (1) inconsistent
reports of the victim, who initially denied that the alleged
perpetrator had sexually assaulted her in March of 2018, (2) a
lack of charges filed in relation to the other allegations, and
(3) that the victim made accusations against multiple people.
That the victim provided inconsistent accounts of the March 2018
incident does not prove that the victim was lying. See
Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 477, cert. denied
sub nom., Pirrotta v. Massachusetts, 479 Mass. 838 (1986),
quoting Commonwealth v. McGahee, 393 Mass. 743, 750 (1985)
("Inconsistencies in the victim's testimony 'do not render the
testimony legally insufficient'"). Further, "that [a] victim
failed to pursue a claim is not evidence that the claim was
falsely made." Commonwealth v. Hrycenko, 417 Mass. 309, 319
(1994).
Finally, that a victim makes separate rape allegations,
without concrete evidence to support a claim that those
allegations were false, does not independently suggest they were
false. See Commonwealth v. Wise, 39 Mass. App. Ct. 922, 922-923
(1995) ("To open the gate to cross-examination, the evidence of
falsity of an accusation must be solid, as when the accusing
5 witness has recanted the other allegation"). Therefore, there
was not sufficient evidence demonstrating the victim's previous
allegations were false that would warrant the application of
Bohannon.
As to the defendant's alternative argument, the facts here
differ significantly from the victim's other allegations to
allow for admission of the evidence as proof of "a common
scheme, pattern of operation, absence of accident or mistake,
identity, intent, or motive." Commonwealth v. Helfant, 398
Mass. 214, 224 (1986). The victim's other allegations were
directed at peers, while this allegation was directed at an
adult family member. Additionally, there is no indication that
the victim was concerned about getting in trouble when she
reported the other assaults. The judge did not abuse his
discretion when he concluded that the other allegations were not
similar enough to the current case to be admissible as evidence
of a pattern or motive to lie.4 Cf. Commonwealth v. King, 387
Mass. 464, 472 (1982) (admitting prior bad acts as proof of
"common pattern" where "the uncharged conduct is so closely
4 The defendant also argues that the judge did not fully consider the issue regarding the admissibility of other accusations. Because we do not agree that the judge erroneously weighed the facts relevant to the issue, we discern no error. See Souza, 492 Mass. at 626.
6 related in time, place, age, family relationship of the victims,
and form" of behavior in question).
b. Victim's behavior at school. The defendant asserts
that the judge erroneously limited information regarding the
victim's alleged misconduct at school to a single day, and that
the defense was entitled to cross-examine the victim regarding
her behavior over a longer period of time for the purpose of
showing bias. The defendant argues that, in preventing this
line of questioning due to lack of relevance, the judge
prevented him from putting on a full defense.
Because the trial judge limited reference only to "specific
incidents"5 while still allowing testimony that the victim was
"generally having a difficult time," we conclude that the issue
of the victim's behavior at school was sufficiently aired, and
there was no abuse of discretion. See Commonwealth v. Avalos,
454 Mass. 1, 7-8 (2009). This is further supported by the
defense's acquiescence and agreement to keep evidence of
supposedly bad behavior "to general terms" after the judge
explained he was not allowing the mention of "any specific
5 The defendant sought to introduce evidence that the victim got in trouble for "vaping" and "swearing at her teachers" at school, arguing that the victim was "in the hallway raising some issues, swearing at the teachers. She[] [was] taken into a room. She[] [was] told that this is not proper conduct. And, then, she [made] this complaint" against the defendant.
7 acts," as well as the fact that both the victim and her mother
testified that the victim was "always" getting in trouble at
school, including around the time of the December 2017 assaults.
c. Victim's letter to defendant. The defendant argues
that the specific content of a letter that the victim wrote to
the defendant was admissible to show the victim's "present
friendliness" toward the defendant after the alleged assaults.
See Mass. G. Evid. § 803(3)(B)(i) (2021).6 The letter contained
statements by the victim praising and thanking the defendant,
including, "Thank you for picking my mom as your wife," "since
day one you have always treated me with respect," and "even tho
[sic] I don't say it I do love you." The victim asserted that
she wrote this letter prior to the December 2017 incident. The
victim's mother said the defendant showed her this letter around
his birthday, which was after the December 2017 incident; thus,
the defendant argues this letter is probative of the victim's
feelings toward the defendant at the time of the incident.7
6 Statements that might otherwise be excluded at trial as hearsay were admissible at the time of the defendant's trial if they were indicative of a person's "present friendliness, hostility, intent, knowledge, fear, or other mental condition." Mass. G. Evid. § 803(3)(B)(i). The current version is not materially different.
7 In response to this discrepancy, the judge allowed the defendant to present the letter to the victim at trial, but stated that "if [the victim] denies that she wrote that after the alleged incident, but wrote it before, then . . . it's not
8 Although the judge sustained the Commonwealth's objection
to the victim reading the letter, he did allow the defendant to
ask the victim to confirm that the letter was to the defendant
and contained information "that's very positive about [the
defendant]." Additionally, the victim testified that she had
not written the letter within the timeframe of the crimes of
which the defendant was convicted, which minimizes its relevance
as to the grounds for which the defendant sought to introduce
it. Finally, defense counsel stated at sidebar that he did not
"plan on" asking the victim about the contents of the letter.
Therefore, we cannot conclude that the trial judge abused his
discretion in preventing the specific contents of the letter
from being read during trial. See Commonwealth v. Garcia, 470
Mass. 24, 35-36 (2014), quoting Avalos, 454 Mass. at 7 (no abuse
of discretion in judge's decision to deny admission of evidence
where he did not "bar all inquiry into the subject" at issue).
2. Testimony of victim's mother. The defendant next
argues that the Commonwealth called the victim's mother for an
impermissible purpose, which was impeaching the mother.
relevant." Of course, the victim's mother's testimony about when she saw the letter does not contradict when the victim said she wrote it (before the incident in question). Nor does it establish the earliest that the letter was written.
9 Generally, it is permissible for the Commonwealth to
impeach its own witness. See Commonwealth v. Reddick, 372 Mass.
460, 464 (1977), S.C., 381 Mass. 398 (1980); G. L. c. 233, § 23.
However, the Commonwealth is not permitted to call "a witness
whom [it] knows beforehand will offer no testimony relevant to
an issue at trial solely for the purpose of impeaching that
witness with prior inconsistent statements that would otherwise
be inadmissible." Commonwealth v. McAfee, 430 Mass. 483, 489-
490 (1999).
Here, the defendant asserts that because the Commonwealth
disclosed in a hearing prior to trial that the "purpose of [the
mother] testifying" was to address admissions the defendant
allegedly made to her and that the mother reported to DCF, the
mother was clearly called for impeachment purposes alone.
However, there was no mention at this hearing that the
Commonwealth affirmatively expected the mother to deny having
heard or reporting the admissions at issue. At that same
hearing, the Commonwealth also asserted that it would call the
DCF worker in question to testify should the mother deny having
heard or reported the defendant's admissions. Although the
defendant argues that this is sufficient to show the
Commonwealth meant to call the mother simply to contradict her,
we are not persuaded that uncertainty regarding the mother's
10 testimony is indicative of the Commonwealth calling the mother
in bad faith. See Commonwealth v. Thomas, 429 Mass. 146, 156-
157 (1999) (no impropriety in Commonwealth calling witness to
establish potential rebuttal).
Further, the defendant argues that the Commonwealth's
direct examination of the mother did not contain any probative
questions that were not related to her alleged conversation with
the defendant. This argument is unavailing. The mother's
testimony about her family and household arrangements, the
length of her relationship with the defendant, that she
confronted the defendant about the victim's allegations, and the
defendant's response, were all relevant evidence concerning the
criminal charges for which the defendant was on trial. See
McAfee, 430 Mass. at 490 ("[T]he testimony which [a party] seeks
to contradict must first be deemed relevant to issues on
trial"). We thus conclude the judge did not err in allowing the
Commonwealth to call the victim's mother to testify as to
significant, relevant issues, even if a portion of her testimony
may have been anticipatorily subject to impeachment. See Cramer
v. Commonwealth, 419 Mass. 106, 111 n.3 (1994).
3. Scope of cross-examination. The defendant argues that
the judge improperly hampered the defendant's cross-examination
of the victim's mother by sustaining the Commonwealth's
11 objection to a line of questioning as to whether the defendant
stated, "the devil made [me] do it." Because defense counsel
did not object to the judge's limiting of cross-examination, we
review for whether an improper restriction by the judge created
a substantial risk of a miscarriage of justice. See
Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 235 (2012)
("[t]he acquiescence of defense counsel to actions taken by the
trial judge can constitute a waiver of any objection to the
judge's actions").
A judge has broad discretion to "direct the course of a
trial, and this judicial discretion extends to limiting and
otherwise controlling cross-examination." Commonwealth v.
Vardinski, 438 Mass. 444, 451 (2003), citing Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). "To determine whether the
judge unreasonably limited cross-examination, 'we weigh the
materiality of the witness's direct testimony and the degree of
the restriction on cross-examination.'" Vardinski, supra,
quoting Commonwealth v. Miles, 420 Mass 67, 72 (1995).
During cross-examination of the victim's mother, the
defendant purportedly sought to impeach the victim regarding her
statement that she overheard the defendant admit to the victim's
mother that the "devil made him [sexually assault the victim]";
the victim's mother did not testify that the defendant made this
12 statement. Defense counsel did not ask to be heard to press
this line of questioning, but instead responded "[o]kay."
Even if it was error to sustain the objection, there was no
substantial risk of a miscarriage of justice. The jury heard
the victim's and the victim's mother's conflicting testimony
concerning the defendant's statements; on direct examination,
the mother testified that the defendant told her "[t]hat if he
touched [the victim] for any reason, it was by mistake 'cause
they're always playing around and goofing around," which is
indeed a different statement than what the victim testified to
hearing, specifically, that the "devil made him do it." Thus,
the "degree of restriction on cross-examination" was not
complete, as the witness's direct testimony offered evidence
related to the defendant's intent. See Vardinski, 438 Mass. at
451. See also Commonwealth v. Pierce, 66 Mass. App. Ct. 283,
289 (2006) (no substantial risk of miscarriage of justice
because "[c]ross-examination that is somewhat impeded, but not
totally foreclosed, presents a weaker case for finding a denial
of rights than a complete absence of cross-examination"
[citation omitted]). Therefore, the judge did not abuse his
discretion by sustaining the Commonwealth's objection to defense
counsel's question. See Souza, 492 Mass. at 626.
13 4. Closing argument. The defendant argues that the
Commonwealth misrepresented the victim's mother's testimony in
its closing argument on two occasions; first, by stating, "[the
mother's] testimony on direct examination was that the defendant
did admit to touching [the victim]. She told you that he said
they must have been playing around but that he touched her
breast," and second, "if [the victim] was lying . . . Why did
[the defendant] tell his wife that he did touch [the victim's]
breast?" We see nothing improper about these statements.
The Commonwealth's statements were in reference to the
victim's mother's testimony on direct examination, which was, in
pertinent part:
Q: "Did you speak to him about those allegations?"
A: "I did."
Q: "And, did he admit those allegations to you?"
A: "He did not."
. . .
Q: "So, when he said that he may have touched her, what was he referring to?"
A: "Well, when she said that he touched her boob, so that's why I confronted him."
Q: "So, it was her breast that he was talking about?"
A: "Yes."
14 The prosecutor's statements were reasonable inferences that
could be drawn from this testimony. See Commonwealth v. Roy,
464 Mass. 818, 829 (2013). See also Commonwealth v. Blaikie,
375 Mass. 601, 612 (1978) ("counsel may argue inferences from
the evidence which are most favorable to his or her theory of
the case, as long as the inferences drawn are reasonable").
Even assuming for the sake of argument that there was
error, we discern no substantial risk of a miscarriage of
justice.8 In determining whether a prosecutor's improper
statements warrant reversal, the following factors are
collectively considered:
"[W]hether defense counsel seasonably objected to the arguments at trial[;] whether the judge's instructions mitigated the error; whether the errors in the arguments went to the heart of the issues at trial or concerned collateral matters; whether the jury would be able to sort out the excessive claims made by the prosecutor; and whether the Commonwealth's case was so overwhelming that the errors did not prejudice the defendant" (citations omitted).
Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), S.C., 427
Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).
Here, as to the first factor, the defendant's lack of
objection to the Commonwealth's closing argument "is some
indication that the tone, manner, and substance of the now
8 The defendant did not object to the Commonwealth's closing argument at trial. See Commonwealth v. Cuffee, 492 Mass. 25, 32 (2023).
15 challenged aspects of the prosecutor's argument were not
unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360
(1985). Second, although the judge did not specifically repeat
during the final jury charge that statements made in either
party's closing argument are not to be considered as evidence,
the judge did so state at the beginning of the very short trial,
and jury deliberations began on the same day. See Commonwealth
v. Allen, 379 Mass. 564, 583-584 (1980) ("[i]t is normally
assumed" that any instructions given by judge "are followed by
jurors, absent any reason appearing in the record to suggest
otherwise"). As to the third factor, the prosecutor's
statement, "Why did [the defendant] tell his wife that he did
touch [the victim's] breast?" arguably "went to the very heart
of the case" and "struck" at a key aspect of the defense, as the
jury could have found that this interpretation of the mother's
testimony bolstered the victim's credibility. Commonwealth v.
Shelley, 374 Mass. 466, 471 (1978), S.C., 381 Mass. 340 (1980)
and 411 Mass. 692 (1992). However, the prosecutor's statement
was a reasonable interpretation based on the same testimony that
the jury heard. See Blaikie, 375 Mass. at 612 ("In their
summations to the jury, counsel may argue inferences from the
evidence which are most favorable to his or her theory of the
case, as long as the inferences drawn are reasonable"). Fourth,
16 the jury returned verdicts of guilty of two of the charges
against the defendant, and not guilty of the other three
charges, thereby suggesting that even if the Commonwealth's
closing was inartful, the jury were able to "take [the argument]
with a grain of salt." See Commonwealth v. Bradshaw, 385 Mass.
244, 277 (1982).9
5. Cellebrite report. The defendant next argues that the
judge abused his discretion by denying the defendant's request
for a mistrial, and by not reopening the evidence, where the
defendant alleges the Commonwealth committed a discovery
violation by failing to provide identifying information
concerning the police officer who performed the Cellebrite
extraction from the victim's cell phone. Prior to defense
counsel's calling of Weymouth police detective Edward Williams
to testify for the purpose of admitting evidence of the
Cellebrite report, the Commonwealth alerted the court that it
did not think Williams was the officer who performed the
extraction. The defendant now argues that, because he was
prevented from knowing the police officer who performed the
9 As to the fifth factor, it is not clear that the Commonwealth's case against the defendant was overwhelming, see Santiago, 425 Mass. at 500, but the fact that this was a close case does not independently warrant reversal; "all these considerations must be undertaken on a case-by-case basis." Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
17 analysis documented in the Cellebrite report, he was prejudiced
against being able to properly challenge the Commonwealth's
evidence concerning text messages between the victim and
defendant. We disagree.
It is undisputed that defense counsel possessed the
Cellebrite report more than two years before trial, which in
fact listed on the first page an officer Moideen as the
examiner. Thus, there is no factual basis to support the claim
of a discovery violation, and the judge properly denied the
defendant's motion for a mistrial.10
Judgments affirmed.
By the Court (Henry, Smyth & Toone, JJ.11),
Clerk
Entered: September 17, 2025.
10The defendant appears to concede as much in his reply brief, as he invites us to consider a new claim, that trial counsel was ineffective for not identifying the examiner in the report. We decline to address the ineffectiveness claim raised for the first time in his reply brief. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), quoting Care & Protection of Stephen, 401 Mass. 144, 150 & n.4 (1987) ("[a]bsent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal"). The defendant may pursue such a claim in a postconviction motion for new trial. 11 The panelists are listed in order of seniority.