COMMONWEALTH v. RIVERA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant, Virgilio Rivera, was convicted of (1) one count rape of a child, aggravated by more than a five-year age difference, pursuant to G. L. c. 265, § 23A (a); (2) one count of rape of a child, aggravated by more than a ten-year age difference, pursuant to G. L. c. 265, § 23A (b); (3) two counts of forcible rape of a child, pursuant to G. L. c. 265, § 22A; and (4) one count of witness intimidation, pursuant to G. L. c. 268, § 13B.² We affirm.

Background. We recite the facts of the case in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant was the boyfriend of the victim's mother (Ramona ³ ) from the time the victim was about three years old. The defendant lived with Ramona, the victim, and her three brothers in multiple apartments over several years. Growing up, the victim had a close relationship with two of the defendant's children, Veronica and Marnie.

The defendant began assaulting the victim when she was eleven years old. On one occasion,⁴ the defendant and the eleven year old victim were in the defendant's truck alone and he asked the victim if he could touch her. The victim said no. The defendant reached over to the passenger seat where the victim was sitting, slid his hand underneath the waist of her shorts and underwear, and touched her vagina and put his fingers inside of it. The victim did not move during the assault because she was “scared” the defendant would hit her.

On another occasion when the victim was eleven years old, the defendant went into the victim's bedroom when they were home alone, shut off the lights, pulled down her pants, and put his tongue on her vagina. On three separate occasions, when the victim was eleven and twelve years old, the defendant gave her a sex toy. The defendant also made comments about girls and their bodies in a way that made the victim feel uncomfortable.

When the victim was twelve years old, the defendant asked the victim to use one of the sex toys in front of him. When she refused, the defendant grabbed the victim by the arm, laid her on the bed, pulled down her pants, put a condom on his penis, and inserted his penis into her vagina. The rape took place in Ramona and the defendant's bedroom and at some point before the rape, he locked the bedroom door. The victim did not scream or call for help because she was “frozen.”

Around January 2015, the defendant made two comments to his daughter, Marnie, about the victim: (1) that “stuff went down and he feels horrible about it and it's in his heart and it won't go away”; and (2) that the victim walked into the defendant's room when she was nude, prompting him to tell the victim to leave because he is her father. Within days of the defendant's comments, Marnie asked the victim about them and the victim subsequently disclosed the abuse to Marnie, first by telephone and continuing via text messages (first complaint text messages). The first complaint text messages also indicate that the victim told her mother (Ramona) about the abuse. Shortly after the first complaint text messages, the victim and Ramona reported the abuse to the police.

After the victim disclosed the abuse, the defendant fled to Florida, where he was ultimately taken into custody and transported to Massachusetts. While in jail, the defendant sent one of his children a letter in which he asked her to tell the victim that he would buy her “the car she wanted” or give her $ 5,000 if she “tells the truth that she made up all these lies.” The defendant also wrote: “I will tell the court and her mom that she has been giving herself to me of her free will and she was the one who kept getting closer to me and would not leave me.”

Discussion. 1. Evidentiary errors. The defendant claims that the cumulative effect of four evidentiary errors deprived him of a fair trial. The defendant only preserved one of these claims for appeal.

a. Unpreserved claims. We review the unpreserved claims for whether any error created a substantial risk of a miscarriage of justice, which “exists when we ‘have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. McCoy, 456 Mass. 838, 850 (2010), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

i. First complaint witness. Pursuant to the first complaint doctrine, “the recipient of a [victim's] first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint.” Commonwealth v. King, 445 Mass. 217, 218-219 (2005). “The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence.” Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).

First, the defendant argues that the judge incorrectly designated the text messages with Marnie as the first complaints (and accordingly designated Marnie as the first complaint witness); as a result, the defendant contends, the text messages were improperly admitted. Specifically, the defendant argues that Ramona was the proper first complaint witness and had she been designated as such, the victim's text message stating that “he did rape me” would not have been admitted. We find this argument unavailing.

As an initial matter, defense counsel did not object to the first complaint designation at trial. In fact, he affirmatively stated that Marnie was the proper first complaint witness and that the first complaint was “ongoing ․ in different forms of communication, telephone, text, telephone again.” Even if the judge incorrectly designated the text messages as the first complaint, pretrial filings indicate that the victim also disclosed details of the abuse to Ramona, including that the defendant showed the victim sex toys, touched her, and engaged in sexual intercourse with her. Accordingly, any error did not create a substantial risk of a miscarriage of justice.

Second, the defendant argues that even if the first complaint text messages were admissible, it was improper for the victim to testify to her telephone conversation with Marnie and that the testimony improperly suggested that the defendant confessed to Marnie.⁵

The first complaint doctrine also permits an alleged victim to “testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time.” King, 445 Mass. at 219. In this case, the victim's disclosure was prompted by the defendant's prior statements to Marnie, which Marnie conveyed to the victim. As such, the victim's testimony provided the jury with the context necessary to explain the timing of her disclosure. Moreover, the judge gave the jury two limiting instructions articulating that first complaint testimony may only be used to assist the jury in determining the credibility of the victim's testimony about the alleged assaults and not to prove the truth of the allegations. We conclude that there was error.

ii. Opinion testimony. The defendant argues that Ramona's testimony regarding her mother's (the victim's grandmother's) opinion that the defendant was “in love” with the victim was inadmissible and prejudicial. On cross-examination, defense counsel asked Ramona about the “dislike and disdain” between the grandmother and the defendant to support a recent fabrication theory. On redirect examination, the prosecutor asked Ramona to state the basis for the grandmother's opinion of the defendant.⁶ Defense counsel objected on hearsay grounds, but at a subsequent sidebar conference, assented to the judge's limiting instruction that the testimony would be offered not for the truth of the matter asserted but to show state of mind. Defense counsel did not renew his objection after Ramona's testimony.

On cross-examination, defense counsel elicited testimony from Ramona about the grandmother's animosity toward the defendant. As such, the Commonwealth was entitled to offer a basis for such animosity. See Commonwealth v. Harris, 481 Mass. 767, 783 (2019) (prosecutor permitted to respond when defense counsel “invited a fuller explanation” of witness's testimony regarding defendant's dislike of Massachusetts); Commonwealth v. Marrero, 427 Mass. 65, 69 (1998) (“The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination”). Contrast Commonwealth v. Quinn, 469 Mass. 641, 648 (2014) (evidence “that otherwise may be inadmissible may become admissible where the defendant opens the door to its admission”). The judge did not err in admitting this testimony. Even if there was error, the limiting instruction, to which defense counsel assented, eliminated any prejudice to the defendant; thus, the testimony did not create a substantial risk of a miscarriage of justice.

The defendant also argues that the prosecutor improperly urged the jury to consider the testimony regarding the grandmother's opinion of the defendant substantively. We disagree. The prosecutor stated: “The defendant was very careful not to get caught ․ but there is one person who suspected [the abuse]. And you heard that [Ramona's] mother ․ said right around the [year] 2015, ‘I think [the defendant] is in love with [the victim].’ ” This statement was consistent with the judge's limiting instruction, as the prosecutor simply repeated the grandmother's opinion to demonstrate her state of mind.

b. Preserved claim. The defendant claims that the judge erred in allowing the victim to testify regarding the defendant's comments about girls' bodies (sexualized comments) and the sex toys the defendant gave the victim. The defendant claims that such testimony was inadmissible prior bad act evidence and that the judge failed to balance the probative value of the evidence against the risk of unfair prejudice to the defendant.⁷

The decision to admit prior bad act evidence is committed to the “sound discretion of the trial judge and will not be disturbed by a reviewing court absent ‘palpable error.’ ” Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). While evidence of prior bad acts is inadmissible as propensity evidence, such evidence may be admissible to show “ ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation’ ․ [so long as the] probative value is [not] outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). However, a judge need not expressly state that the probative value outweighed any prejudice, as “[s]uch a determination is implicit in the judge's consideration of the tender of, and the objection to, the evidence and the judge's ultimate decision to admit it.” Commonwealth v. Mahan, 18 Mass. App. Ct. 738, 741 n.1 (1984).

We conclude that the judge did not abuse his discretion in concluding that the probative value outweighed any risk of unfair prejudice to the defendant. The victim's testimony regarding the defendant's sexualized comments and the sex toys was “probative to show a pattern or course of conduct by the defendant [and] to describe the entire relationship between the defendant and the victim.” Commonwealth v. Thomas, 448 Mass. 180, 188 (2007). Moreover, viewing the evidence in the light most favorable to the Commonwealth, the victim's refusal to use a sex toy precipitated the penile rape. Accordingly, we discern no error and even if we were to assume error, any risk of prejudice was remedied by the judge's limiting instruction to consider the testimony only for credibility, the nature of the relationship between the victim and defendant, intent, and state of mind. See Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 479 (1998) (“Juries are presumed to follow such limiting instructions”).

2. Prosecutor's closing argument. The defendant claims that the prosecutor misstated two pieces of evidence in her closing argument. Because there was no objection, we review any error for whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alvarez, 480 Mass. 299, 310 n.3 (2018).

Although “[a] prosecutor may not misstate evidence or refer to facts not in evidence in a closing argument,” Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), a prosecutor may “marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). In this case, the prosecutor did just that.

First, the defendant claims the prosecutor improperly concluded that the victim “froze with fear” during the rape. The victim testified that (1) during the first assault, she did not move because she was “scared”; (2) she did not “call out for help” during the penile rape because she was “frozen”; and (3) she did not disclose the abuse at the time it occurred because she believed the defendant would “hurt” her, her brothers, and her mother. The prosecutor's statement merely suggested reasonable inferences that could be drawn from the evidence. See Goddard, 476 Mass. at 449.

Second, the defendant claims the prosecutor misrepresented Marnie's testimony regarding her conversation with the defendant by stating: “[Y]ou also heard from [Marnie] about the conversation that preceded the text messages. ‘What happened? My dad, the defendant, Virgilio Rivera, said something went down. He said he asked you for something sexual.’ ” We recognize that the prosecutor did say that Marnie said the defendant asked for something sexual when the testimony was that the victim told Marnie that the defendant asked for something sexual; however, we discern no substantial risk of a miscarriage of justice where, viewing the evidence in the light most favorable to the Commonwealth, the defendant admitted to engaging in sexual acts with the victim and the judge instructed the jury more than once that closing arguments are not substitutes for evidence. See Commonwealth v. Lodge, 431 Mass. 461, 471 (2000).

3. Emotional juror. The defendant claims that the judge abused his discretion by failing to inquire of an emotional juror, which violated the defendant's due process right to a trial by an impartial jury. The “determination of a juror's impartiality ‘is essentially one of credibility,’ ” to which this court gives great deference. Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997), quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984).

In this case, defense counsel requested that the judge question or remove juror number eight because she “appeared teary-eyed, and had other emotions, facial responses” as the indictments were read. The judge denied the request, but stated that he would “pay careful attention” and would address any “evidence of reaction that may reflect some sort of bias,” if it arose. On three separate occasions the judge noted that he had carefully monitored juror number eight and did not observe any emotional reaction. Accordingly, the judge declined defense counsel's request to conduct a colloquy of the juror. Given the judge's careful observations and ultimate finding that there was no cause for individual inquiry, we conclude that the judge did not abuse his discretion. See Commonwealth v. Ascolillo, 405 Mass. 456, 461 (1989), quoting Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978) (“Where, as here, the judge who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion”).

4. Insufficient evidence. With regard to the two convictions of forcible rape of a child, the defendant claims that the Commonwealth put forth insufficient evidence to prove either lack of consent or use of force. Specifically, the defendant argues that there was no evidence that the sexual contact was against the victim's will and that the victim's age alone is not dispositive on the issue of consent.

“In a rape case, the element of force and against the will of the victim may be established by physical force or constructive force. Constructive force requires ‘proof that the victim was afraid or that she submitted to the defendant because his conduct intimidated her’ ” (citations omitted). Commonwealth v. Vasquez, 462 Mass. 827, 846 (2012). When assessing constructive force, the jury may consider “the age of the child, ․ the circumstances of being alone with the caregiver or adult in charge, the relationship between the child and the adult, and whether the child would have been in a position to resist considering age, size, and other factors.” Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 913 (1997).

In this case, the victim viewed the defendant as “a father figure” she had known since she was three years old. See Commonwealth v. Moniz, 87 Mass. App. Ct. 532, 536 (2015); Moniz, 43 Mass. App. Ct. at 913. At the time of the rapes, the victim was eleven and twelve years old. During the oral rape, the defendant went into the victim's bedroom when they were home alone, shut off the lights, pulled her pants down, and put his tongue on her vagina. See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255 (2008) (“Actual force was also present ․ where the defendant pulled the victim's legs apart and positioned himself against her spread legs while he engaged in oral sex”). During the penile rape, the defendant, in a locked bedroom, grabbed the victim's arm, lay her on the bed, pulled her pants down, and put his penis in her vagina. The victim testified that she did not move during the assaults or disclose them because she was “frozen” during the penile rape, “scared” of the defendant, and thought that he might “hurt” her and her family. Viewing the totality of the evidence in the light most favorable to the Commonwealth, we conclude that the evidence sufficiently proved the element of force. Latimore, 378 Mass. at 677-678.

5. Jury instructions. The defendant argues that the jury instructions for forcible rape of a child erroneously relieved the Commonwealth of its burden to prove force in two respects, which we address in turn. Because the defendant did not raise these objections at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 564 (1987).

First, the defendant claims that the jury instructions failed to inform the jury that to find constructive force, the defendant must have subjectively intended to frighten the alleged victim. This is incorrect. As an initial matter, rape is not a specific intent crime in Massachusetts; thus, there is no emphasis or investigation into a defendant's state of mind. See Commonwealth v. Lefkowitz, 20 Mass. App. Ct. 513, 518 (1985) (“The trial judge did not err in denying the instruction in the language requested, since the instruction expressly sought to make specific intent an essential element of the crime of rape”). Moreover, we agree with the Commonwealth that our case law demonstrates that constructive force can arise in coercive environments caused by power imbalances between a child and an adult, especially in relationships where the adult serves as a parental figure to the child. See Moniz, 87 Mass. App. Ct. at 535; Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 522-524 (2011); Moniz, 43 Mass. App. Ct. at 913. The judge did not err.

Second, the defendant claims that the jury instructions included a sentence not contained in the model jury instructions: “Whether actual or constructive force is used, the degree of force is immaterial so long as it is sufficient to overcome the complainant's will.” We discern no substantial risk of a miscarriage of justice. While the judge may have deviated from the model jury instructions, the entire sentence and the entire instruction, read together, adequately reflects the correct elements of rape by force. See Commonwealth v. Sherry, 386 Mass. 682, 696 (1982) (judge properly instructed jury that defendant must have used sufficient force “to overcome the woman's will”); Commonwealth v. Martin, 47 Mass. App. Ct. 240, 246 (1999) (“The trial judge's instructions to the jury ․ directed them to determine whether the defendant's threats were sufficient to overcome [the victim's] will”). Furthermore, the instruction did not affect the defense that the defendant chose to pursue. See Commonwealth v. Robinson, 444 Mass. 102, 106-107 (2005) (“ambiguity in the judge's instruction did not go to any disputed issue in the case or otherwise compromise the theory of defense”). Defense counsel did not contest whether adequate force had been used; instead, defense counsel argued in his opening statement and closing argument that the victim falsely accused the defendant of rape.

Judgments affirmed.

FOOTNOTES

2.   The jury acquitted the defendant of (1) one count of rape of a child, aggravated by more than a five-year age difference; (2) one count of forcible rape of a child; and (3) indecent assault and battery on a child under age fourteen, pursuant to G. L. c. 265, § 13B. The Commonwealth also dismissed two charges before trial: (1) one count of witness intimidation; and (2) one count of attempting victim contact prohibited by an abuse prevention order, pursuant to G. L. c. 274, § 6.

3.   This name, and the other names in this decision, except for that of the defendant, are pseudonyms.

4.   The defendant was acquitted of the charges related to the testimony recounted in this paragraph.

5.   The defendant also argues that it was improper to admit the text message from the victim to Marnie, which stated: “[Marnie] I already told my mom.” At oral argument, the Commonwealth conceded that this text message should not have been admitted. The error did not create a substantial risk of a miscarriage of justice.

6.   Q.: “[Ramona], when you were at your mom's house and you were having a conversation December 2014, you were asked if your mom voiced an opinion about [the defendant]. What did she say?”A.: “She said ‘I'm just going to come out and say it. I don't care [i]f [the victim] gets mad but [the defendant] is in love with her.’ ”

7.   The defendant also argues that the testimony was inadmissible because it was uncorroborated. However, our case law clearly states that the “uncorroborated testimony of a child is sufficient to support a conviction of sexual assault.” Commonwealth v. Alvarez, 480 Mass. 299, 310 n.4 (2018).