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Appeals Court of Massachusetts.



Decided: March 19, 2021

By the Court (Vuono, Sacks & Hand, JJ.1)


After a jury trial in the Superior Court, the defendant was convicted of five counts of rape of a child, G. L. c. 265, § 23. Because we conclude that (1) error in the admission of evidence regarding the defendant's sexual orientation was not unduly prejudicial; (2) the judge acted within her discretion in permitting expert testimony on the physical appearance of a circumcised and uncircumcised penis; (3) testimony from one of the victims about the details of his disclosure to his mother, who did not testify because she was deceased, did not violate the first complaint doctrine; and (4) the prosecutor did not improperly vouch for the victims’ credibility during her closing argument, we affirm.2

1. Facts. The jury were warranted in finding that in 1991 and 1992, the defendant, who was approximately twenty-one years old at the time, sexually abused two boys, whom we shall call Adam and Peter.3 Adam was the nephew of a woman to whom the defendant was engaged (former fiancée) and Peter was Adam's friend and neighbor. At different times, the defendant had the boys touch his penis, touched their penises, and put his penis in the boys’ mouths and in Adam's anus. At the time of these events, Adam was seven or eight years old, and Peter was “a couple of years [younger].” The boys disclosed the abuse, and the defendant was indicted by a grand jury in 1993. By that time, however, the defendant had learned about the investigation and left Massachusetts telling, as he testified, “[n]ot a soul.” The defendant moved to Florida where he lived for a number of years under a false name. He later moved to North Carolina and, ultimately, twenty-three years after having committed the crimes of which he was convicted, he was apprehended and brought to Massachusetts.

2. Discussion. a. Evidence of sexual orientation. The defendant's former fiancée testified that she began dating the defendant when she was eighteen years old, that the relationship lasted for approximately nine months to a year, and that it was sexual. Over the defendant's objection, she testified that the defendant sometimes, although not always, had difficulty becoming aroused when he was with her.4 We agree with the defendant that this evidence was not relevant and should not have been admitted. We do not agree, however, with the defendant's argument that the evidence was prejudicial because it tended to show that he was sexually attracted to young boys.

“Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” Commonwealth v. Mason, 485 Mass. 520, 533 (2020), quoting Mass. G. Evid. § 401 (2020). Here, the fact that the defendant did not always have a positive sexual experience with his former fiancée does not prove any fact of consequence, including that he was not attracted to women.5 We therefore discern no relevance, and to the extent the testimony was personal and potentially prejudicial, it was inadmissible. Accordingly, the defendant's objection to the testimony at issue should have been sustained.

But, as noted, the defendant argues that the challenged testimony was inadmissible for a different reason; he claims that it tended to show that he had an interest in young boys and therefore it was unduly prejudicial. We note the risk that testimony of this kind could lead the jury to make a wholly improper inference linking homosexuality with a sexual interest in children. See Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673 (2016) (“an interest in viewing lawfully possessed depictions of adult men having gay sex is not relevant to the question whether a male adult has an interest in engaging in sex acts of that kind with underage boys”).

We are not, however, persuaded that the error was prejudicial in the context of the entire trial. See Commonwealth v. Niemic, 483 Mass. 571, 580 n.14 (2019), citing Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017) (prejudicial error standard applied to preserved objection). To the extent that the jury could have inferred from this portion of the former fiancée's testimony that the defendant was gay, there was no prejudice. The defendant later (and as part of a strategy unrelated to the former fiancée's testimony) testified that after leaving Massachusetts, he came to accept that he was a gay man, and he relied on his deferred recognition of his sexual orientation in defending against damaging consciousness of guilt evidence offered by the Commonwealth and in explaining the substance of recorded telephone calls made after his arrest on the charges at issue here.6 ,7 In view of the other evidence, we are persuaded that the former fiancée's testimony about the defendant's occasional lack of sexual arousal when he was with her “did not influence the jury, or had but very slight effect.” Commonwealth v. Canty, 466 Mass. 535, 545 (2013), quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

b. Adam's first complaint. The complainant in a sexual assault case “may ․ testify to the details of the first complaint (i.e., what the complainant told the first complaint witness) and also why the complaint was made at that particular time.” Commonwealth v. King, 445 Mass. 217, 245 (2005). The first complaint witness may also “testify to the circumstances surrounding the initial complaint,” including the witness's observations of the complainant, the events that led to the complaint being made, the timing of the complaint, and any “other relevant conditions” that might assist the jury in assessing the complainant's credibility. Id. at 246. Ordinarily, a complainant may only provide first complaint testimony where the first complaint witness also testifies; King provides a limited exception, however, where, as here, “the witness to the complaint is deceased.”8 Id. at 245 n.24.

Here, Adam disclosed the defendant's abuse to his mother, who had died by the time the case was tried. At trial, Adam testified to what he told his mother -- “I gave her just enough information to know that I didn't want to be with [the defendant], be around him” -- and agreed that he gave her “the minimal facts.” This was proper. See King, 445 Mass. at 245 n.24. Additionally, however, the prosecutor elicited Adam's testimony about his mother's reaction to his first complaint; specifically, that “[s]he was very upset” and “started crying,” and that as a result of his mother's tears, Adam felt “hurt.” The Commonwealth has not explained how this testimony, which was hearsay, was permissible under King.

The defendant did not object to Adam's testimony about his mother's reaction to his report or Adam's testimony about his own feelings about his mother's response, so our review is for a substantial risk of a miscarriage of justice, asking whether the error “ ‘materially influence[d]’ the guilty verdict.” Commonwealth v. Pena, 96 Mass. App. Ct. 655, 659 (2019), quoting Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We are persuaded that it did not do so. Adam's testimony about his mother's reaction included no specific detail; the same was true for his statement that he was “hurt” by his mother's reaction to his first complaint.9 Additionally, immediately after Adam's testimony about his first complaint, the judge provided a prompt and correct jury instruction on the limited use that the jury were permitted to make of the first complaint evidence, and repeated it in her final jury instructions. See Pena, supra.

c. Expert testimony. We are not persuaded that the judge abused her broad discretion in admitting expert testimony from Dr. Alice Newton, a pediatrician with a specialization in child-abuse pediatrics. Dr. Newton testified that to a layperson, “[a] circumcised penis can look the same as an uncircumcised penis when it's erect.”10 To put the testimony into context, one year before trial, Peter gave a statement to the police in which he indicated that the defendant had not been circumcised at the time he sexually abused the victims. At trial, Peter confirmed that he had made that report, but testified that he had since recalled that the defendant had been circumcised.

To admit expert testimony in a criminal case, the Commonwealth must establish

“(1) that the expert testimony will assist the trier of fact ․; (2) that the witness is qualified as an expert in the relevant area of inquiry ․; (3) that the expert's opinion is based on facts or data of a type reasonably relied on by experts to form opinions in the relevant field ․; (4) that the process or theory underlying the opinion is reliable ․; and (5) that the process or theory is applied to the particular facts of the case in a reliable manner.”

Commonwealth v. Franceschi, 94 Mass. App. Ct. 602, 607 (2018), quoting Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010). Here, the judge's implicit conclusions that the average layperson might be unfamiliar with the relative appearances of circumcised and uncircumcised penises when erect, and that a physician -- particularly one trained to perform circumcisions and who as a pediatrician would have experience with adolescent males -- would have the qualifications and experience enabling her to assist the jury in coming to an understanding of the subject matter, satisfied these requirements and did not “fall[ ] outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). It was for the jury to determine the weight and credibility of the expert's testimony. See Commonwealth v. Polk, 462 Mass. 23, 31-32 (2012). The judge did not abuse her broad discretion in permitting Dr. Newton's explanatory testimony. See Commonwealth v. Dockham, 405 Mass. 618, 628 (1989).11

d. Prosecutor's closing argument. There was no improper vouching in the prosecutor's closing argument as it related to the credibility of either the defendant or the victims.

“A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs․ When credibility is an issue before the jury, ‘it is certainly proper for counsel to argue from the evidence why a witness should be believed.’ ”

Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28 (2016), quoting Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). “Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ ” Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).

The prosecutor's argument that “the evidence shows you that when [the defendant] testified that he didn't commit [the] crimes [for which he was on trial], he was lying to you, too,” was entirely proper. The jury not only heard the victims’ testimony of the defendant's abuse, which contradicted the defendant's account, they also heard the defendant's potentially incriminating statements in the recorded jail calls. Nothing in the prosecutor's argument suggested that the challenge to the defendant's credibility was based on the prosecutor's personal views or information that had not been presented to the jury. See Ortega, 441 Mass. at 181. The prosecutor's argument for the victims’ credibility was also proper, where it focused the jury's attention on the victims’ appearance and demeanor as they testified. “It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved.” Commonwealth v. Kozec, 399 Mass. 514, 521 (1987).

3. Conclusion. The judgments are affirmed.

So ordered.

Judgments affirmed.


2.   In his brief the defendant also argued that one of the jurors should have been excused for cause based on her answers to questions during voir dire; he waived this claim at oral argument.

3.   In referring to the victims, we use pseudonyms.

4.   She testified, “Sometimes he couldn't get it up and he would need to ․ touch himself to get hard,” but that “it wasn't every time[,]” and agreed that “[t]here were times everything was fine, everything worked.”

5.   That fact, however, was not in dispute as the defendant testified that he had come to identify as a gay man.

6.   Defense counsel took the position that part of the defendant's reason for leaving Massachusetts after the victims made allegations against him was that he was “in denial” about his true sexual orientation. The defendant testified that statements he made in telephone calls from jail to friends after his arrest, including statements that he had been “trying to be a different person ․ to just not be the person [he] was for the first, you know, twenty-one years of [his] life, and be someone different” and that “[he] was obviously running from something,” were reflections of his late recognition that he was gay.

7.   On appeal, the defendant argues that counsel's use of this defense amounted to ineffective assistance of counsel. We are satisfied that although ultimately unsuccessful, counsel's strategic decision was not “ ‘manifestly unreasonable’ when made,” Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), and that counsel's performance thus did not fall below the minimum standards articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

8.   This exception also applies where “the judge determines that there is some other compelling reason for the [first complaint] witness's absence that is not the fault of the Commonwealth.” King, 445 Mass. at 245 n.24.

9.   We also consider that the mother's response to Adam's account -- “[s]he started crying” -- was a predictable reaction to a child's claim of abuse, and not necessarily a statement of her belief in Adam's account.

10.   Dr. Newton also testified about why child sexual abuse victims may not have physical injuries as a result of that abuse. See Commonwealth v. Hrabak, 440 Mass. 650, 655 (2004), citing Commonwealth v. Dockham, 405 Mass. 618, 627–630 (1989). The defendant does not challenge that aspect of Dr. Newton's testimony.

11.   Given this conclusion, we reject the defendant's argument that trial counsel was ineffective in failing to object to Dr. Newton's testimony. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (to prevail on ineffective assistance of counsel claim, defendant must demonstrate likelihood that such motion would be successful). See also Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006) (“our case law strongly disfavors raising ineffective assistance claims on direct appeal”).

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