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Appeals Court of Massachusetts.



Decided: April 12, 2021

By the Court (Rubin, Desmond & Englander, JJ.1)


The defendant was convicted of four counts of forcible rape of a child, G. L. c. 265, § 22A. In his appeal, the defendant raises six claims of error. We incorporate the relevant facts of the case in our discussion herein, and for the reasons that follow, we affirm.

1. Relevance of evidence without expert testimony. The defendant's first argument is that evidence of the child victim's changes in behavior after the sexual assaults occurred was irrelevant without expert testimony. According to the victim's parents' testimony, the sexual assaults occurred during the summer of 2010. The child's parents testified that before the summer of 2010, their son was “pretty much a happy kid all the time” and was “always smiling,” but they noticed a change in behavior starting in the fall of 2010 -- the child was “always mad,” “fighting with his brothers all the time,” “close[d] up and “stay[ing] to himself,” “always getting in trouble in school,” and “plucking out his eyelashes.” The Commonwealth also introduced medical records of the child from both before and after the summer of 2010 showing concerns about his mental and emotional health. The defendant timely objected to this evidence below so our standard of review is prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

Evidence must be relevant to be admissible. See Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000). There is a low threshold for demonstrating relevance. See Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Copeland, 375 Mass. 438, 443 (1978) (“In order to be considered relevant, ‘the evidence must have rendered the desired inference more probable than it would have been without it’ ”). The defendant argues that without expert testimony, the evidence of the child's change in behavior did not meet the low threshold of relevance because the causal connection between the sexual assaults and the subsequent behavior changes was beyond the jury's common knowledge, citing cases in which the Commonwealth was allowed to use expert testimony to explain the behavior of sexually abused children. See Commonwealth v. Hudson, 417 Mass. 536, 540-541 (1994); Commonwealth v. Dockham, 405 Mass. 618, 629-630 (1989); Commonwealth v. Amirault, 404 Mass. 221, 226 (1989).

Although the cases the defendant cites hold that expert testimony is allowed to explain the behavior of sexually abused children, especially behaviors like delayed or gradual disclosures and age-inappropriate sexualized behavior, the defendant fails to cite a case where expert testimony is required for such evidence to be admissible. We are not convinced that evidence that the once-happy victim became angry, withdrawn, self-destructive, and troubled as a result of the sexual assaults lies beyond “the general knowledge and experience of lay jurors” and requires specialized expertise to understand. Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 351 (2017). Additionally, even without expert testimony, “[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case.” Commonwealth v. Arana, 453 Mass. 214, 225 (2009). Evidence of the victim's demeanor and behavior after the alleged sexual assaults was relevant to the contested issue of the victim's credibility. We conclude that the judge did not abuse his discretion in finding that the evidence was relevant even without expert testimony.

The defendant further argues that the temporal remoteness between the observed changes in behavior and the sexual assaults, and the evidence in the medical records that the child was troubled even before the sexual assaults, made the evidence irrelevant. There is no requirement that the victim's behavior must be observed immediately after the crime in order to be relevant, and we discern no abuse of discretion by the judge in finding that the changes in behavior observed a few months after the sexual assaults were still relevant. See Commonwealth v. Pare, 43 Mass. App. Ct. 566, 572 (1997), quoting Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989) (“the resolution of relevancy issues lies within the discretion of the trial judge”; evidence is relevant if it “has ‘a rational tendency to prove an issue in a case’ ”). Evidence in the medical records that the child was troubled even before the assaults occurred and that certain behaviors, such as the eyelash plucking, were not reported until approximately three years after the assaults go to the weight rather than to the admissibility of the evidence.

2. Hearsay. The defendant also argues that the mother's testimony about what she was told by the child's school regarding his behavioral issues was inadmissible hearsay. The mother testified that she was told that her son was “just yelling” and “going underneath the desk” while at school.2 The defendant did not object at trial, so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The mother's testimony about her son's reported behavior at school was impermissible because it was hearsay. See Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 (2000) (“Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted”). However, there was no substantial risk of a miscarriage of justice because such testimony was merely cumulative of other evidence properly admitted of the victim's change in behavior after the sexual assault.

3. Testimony regarding mother's emotional response. The third claim of error the defendant raises is that the mother's testimony regarding her emotional reaction to the victim's disclosure of sexual assault was not relevant and was erroneously admitted. The mother testified that after her son disclosed the sexual assaults, she was screaming so loudly that the father came downstairs to see what was going on. The defendant failed to object at trial so we review for a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.

Under the first complaint doctrine, the first complaint witness may testify about the “circumstances surrounding the initial complaint,” which include “his or her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; [and] the timing of the complaint.” Commonwealth v. King, 445 Mass. 217, 246 (2005). However, the first complaint witness may not “comment directly or indirectly on the credibility of the complainant,” Commonwealth v. Quincy Q., 434 Mass. 859, 874 (2001), and the emotional response or state of mind of a first complaint witness once the disclosure has been made is not relevant. See id. at 874-875.

We first note that the mother's testimony that she was screaming and crying as her son gradually disclosed the sexual assault was properly admitted as “circumstances surrounding the initial complaint.” King, 445 Mass. at 246. Her emotional response was relevant because it caused her son to finally divulge the identity of the perpetrator even though he was initially reluctant to do so. As to the mother's testimony that she screamed after her son made the complete disclosure, we hold that its admission was error because it was not relevant to any issue in the case. Although that testimony was erroneously admitted, we find no substantial risk of a miscarriage of justice. The mother did not directly vouch for the victim's credibility, and to the extent the mother's screaming indirectly demonstrated her belief in what her son disclosed, the fact that she screamed was not repeated by the mother or any other witness nor was it mentioned in the prosecutor's closing argument. Moreover, whatever prejudicial sympathy the mother's emotional reaction after the disclosure would have garnered was blunted by the properly admitted testimony of the mother's screaming and crying during her son's disclosure.

4. Evidence of a second complaint. The defendant also argues that there was a substantial risk of a miscarriage of justice because evidence of a second complaint was admitted. The victim's mother testified that after her son disclosed the sexual assault to her, the victim's father and the victim “went in the car, and [the victim] told him what happened.”

The Commonwealth may only admit evidence of the victim's first complaint of sexual assault -- evidence of multiple complaints are not allowed because they may “unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime.” Commonwealth v. Arana, 453 Mass. 214, 224 (2009), quoting King, 445 Mass. at 243.

We conclude that testimony of the victim's complaint to his father was error because it merely “repeat[ed] the fact of a complaint” and served no independent purpose, such as refuting the argument that the sexual assault was recently fabricated. See Arana, 453 Mass. at 229; Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009). However, there was no substantial risk of a miscarriage of justice. The second complaint testimony was brief and did not repeat any details of the sexual assaults. The father did not mention this second complaint in his testimony nor did the prosecutor mention it in his closing. There was no “piling on” of complaint witnesses and the testimony “was so lacking in detail as to be virtually insignificant.” Commonwealth v. Murungu, 450 Mass. 441, 448 (2008).

5. Insufficient evidence. The defendant also contends that there was insufficient evidence to convict him of forcible rape of a child. The statute requires the Commonwealth to prove that the defendant (1) had “sexual intercourse or unnatural sexual intercourse”; (2) “with a child under 16”; (3) and “compel[led] such child to submit by force and against his will” or “by threat of bodily injury.” G. L. c. 265, § 22A. Specifically, the defendant argues that the Commonwealth failed to prove use of force, the third element. In reviewing a sufficiency of the evidence claim, we must view the evidence in the light most favorable to the Commonwealth and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

“Proof of the force element of rape under G. L. c. 265, § 22A, may be established by physical force or constructive force.” Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254 (2008). With regard to physical force, the victim testified that the defendant at times put his hands on his back and around his waist during intercourse and that he felt that he could not leave the bathroom during intercourse because the defendant “had me blocked in because he was behind me.” If we were limited to considering only physical force in determining whether there was sufficient evidence of force, it would be a difficult question. See Commonwealth v. Lopez, 433 Mass. 722, 727 (2001) (sexual intercourse element and force element are “two separate elements each of which much be independently satisfied”). However, we need not and do not reach that issue because we find sufficient evidence of constructive force.

According to Armstrong, we may consider a “spectrum of factors” when considering the sufficiency of the evidence proving constructive force including “the historical and contextual relationship between the victim and the defendant” and “the manner and means by which the rape is perpetrated,” among other factors that “bear on whether the victim's ability to resist the rape was overborne or negated.” Armstrong, 73 Mass. App. Ct. at 255. In that case, the court found sufficient evidence of constructive force, noting that there was an age disparity between the defendant and the victim and that the defendant was “an authority figure” who had a relationship of trust with the victim. Id.

The defendant argues that the victim must have submitted out of fear or intimidation for there to be sufficient evidence of constructive force. See Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 521 (2011). However, this is contradicted by Armstrong, which held that the fact that the victim explicitly denied feeling fear or feeling threatened by the defendant did not preclude finding sufficient evidence of constructive force. See Armstrong, 73 Mass. App. Ct. at 256. Instead, it found the fact that “the victim endured the rapes with resignation and with no will to resist the defendant's sexual exploitation is reflective of the very nature of the application of constructive force with respect to the crime of rape of a young person.” Id.

Here, the victim testified that he looked up to the defendant, trusted him, and considered him a parental figure. The victim stated that he obeyed the defendant's instructions because the defendant was an older person and he was following what he was told to do. The power the defendant had over the victim is demonstrated by the victim's testimony that at some point during the first sexual assault he looked back at the defendant and said it hurt, but the defendant said that it was fine and that he was almost done, causing the victim to turn around and wait until the defendant finished. The victim also lacked sophistication due to his young age, making it difficult for him to object or disclose the abuse to others: he said that he was “confused” and “lost” and didn't tell anyone because he “didn't know what was right or wrong,” “didn't know what was going on,” and didn't know “if it was just okay.” See Armstrong, 73 Mass. App. Ct. at 256 (victim stated that she “didn't think anything was wrong with [the sexual assaults and] just accepted it”). Lastly, the multiple sexual assaults occurred when the victim was alone with the defendant and in an enclosed space where they would not be discovered, thus making the victim particularly vulnerable. We conclude that the defendant's exploitation of his relationship of trust and authority with the victim, the victim's lack of sophistication due to his young age, and the pattern of sexually assaulting the victim when he was vulnerable are sufficient to prove that the defendant used constructive force.

6. Improper closing argument. The defendant lastly argues that the prosecutor's closing argument created a substantial risk of a miscarriage of justice because he stated facts that were not introduced in evidence and they were not reasonable inferences drawn from the evidence. During closing, the prosecutor stated:

“I'd suggest to you, there is no motive [for the victim and his parents] to lie. What do they hope to gain by taking the stand and testifying? As a matter of fact I would suggest to you they lost more, that their family has now since been torn apart and certain members of the family don't even speak to each other anymore.”

“Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence.” Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). The evidence the Commonwealth points to consists of statements by the victim and the father regarding their relationship with the defendant at the time of the assaults, the victim's testimony that he lost trust in the defendant and was angry with him after the sexual assaults, and the defendant's aunt's statement that she was becoming emotional during her testimony because of “the whole situation.” This evidence could not lead to the reasonable inference that the family was “torn apart and certain members of the family don't even speak to each other anymore.” Thus, we find the prosecutor's statement in closing argument was error.

We must therefore evaluate whether this statement caused a substantial risk of a miscarriage of justice. The Commonwealth's case, which consisted of the testimony of three witnesses, while not overwhelming, was strong. Additionally, the judge instructed the jury three times during the trial that closing arguments were not evidence. Finally, we note that the preface to the erroneous statement, that the prosecution's witnesses had no motive to lie, was entirely proper, especially as a fair response to the defense's attempts to attack the credibility of the victim. See Commonwealth v. Heldberg, 73 Mass. App. Ct. 175, 179 (2008). Defense counsel also acknowledged that there was no obvious motive for the victim to lie, saying, “I can't tell you why he's lying.” Therefore, at most, the improper statement strengthened an argument which the Commonwealth could properly make and which the defense put little effort into disputing. Given the limited significance of the error, the strength of the Commonwealth's case, and the judge's repeated instructions, we find no substantial risk of a miscarriage of justice.

Judgments affirmed.


2.   The mother also testified that her son “wouldn't stay still” and “wouldn't listen” at school. Although she did not testify that she was told this information by the school, we assume without deciding that these statements were also inadmissible either as hearsay or for lack of personal knowledge. See Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 207 (1990) (lay witnesses must “confine their testimony to what they have themselves gleaned by the use of their senses”).

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