COMMONWEALTH v. JORGE LUGO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in District Court, the defendant was convicted of four counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. The alleged victims, J.C. and C.C., were relatives of the defendant's girlfriend, with whom he was living at the time of the events in question. On appeal, the defendant argues, among other things, that the improper admission of prior bad act evidence created a substantial risk of a miscarriage of justice. We agree. Consequently, we must vacate the judgments of conviction and set aside the verdicts.¹

Background. This case has a lengthy procedural history. Although the record is not clear as to how or when J.C. and C.C. initially alleged that the defendant had sexually abused them, at some point in 2010, J.C. and C.C. were interviewed by the police and made statements inculpating the defendant. Thereafter, on May 24, 2010, the defendant was charged in a complaint alleging five counts of indecent assault and battery on a child under the age of fourteen. Two years later, on June 25, 2012, the defendant pleaded guilty to three of the five counts.² He later filed a motion for a new trial seeking to withdraw his guilty plea, which was denied. Another panel of this court subsequently vacated the denial of that motion in an unpublished memorandum of decision. See Commonwealth v. Lugo, 92 Mass. App. Ct. 1119 (2017). On remand, the motion was allowed, and a new trial took place on October 13, 2022.³ Thus, while the events in question occurred in 2010 when J.C. and C.C. were children, the two were adults at the time of trial.

At trial, both J.C. and C.C. had some difficulty recalling statements that they had made when they were interviewed by police about the abuse approximately twelve years earlier. In particular, C.C.’s memory of the defendant's conduct was different at trial. He acknowledged that he did not remember being interviewed by the police until he watched a video recording of the interview prior to trial. During that interview, C.C. denied that the defendant had touched his “private.” At trial, however, C.C. testified that the defendant touched the area near his penis “regularly.” In response to a question posed by the prosecutor asking what C.C. remembered happening with the defendant, C.C. stated, “[T]wo things come to mind; I guess the first thing isn't necessarily a specific instance but something that happened more regularly, like an occurrence I would say, in the sense of touching.” C.C. went on to explain that the “touching” was not a “specific instance, because I think of numerous times.” C.C. then described the defendant's touching him as follows: “I was always fully clothed, so was he. A hand would always be either on the inside of my thigh or on or near my penis, in that kind of general area.” C.C. further stated that the two were always seated, usually on the couch next to each other when the defendant touched him.

Discussion. From what we can reasonably infer from the record, despite the prosecutor's acquiescence to the defendant's motion in limine to preclude prior bad acts, it appears that C.C.’s testimony that he was repeatedly abused was not expected. That said, it is well settled that “evidence of a defendant's prior bad acts may not be introduced to show the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. MacCormack, 491 Mass. 848, 863 (2023). Even when such evidence is admissible for other purposes such as to establish motive or intent, “such evidence is inadmissible if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Id. Here, similar prior bad act evidence was admitted without the appropriate scrutiny by the trial judge who, given the circumstances, did not have the opportunity to weigh the probative value of the evidence against the risk of unfair prejudice.⁴ Second, the risk of prejudice was not mitigated by a specific curative or limiting instruction. See Commonwealth v. Almeida, 479 Mass. 562, 529 (2018) (“The judge also provided a limiting instruction to the jury regarding the prior bad act evidence when it was offered and again in his final charge, thus minimizing any prejudicial effect”). Furthermore, the prior bad act evidence was so similar to the charged offense that it increased the risk of propensity reasoning by the jury. Contrast Commonwealth v. West, 487 Mass. 794, 808 (2021), citing Commonwealth v. Peno, 485 Mass. 378, 389-390 (2020) (“the challenged evidence was not so similar to the charged offense as to increase the risk of impermissible propensity reasoning”).

Conclusion. Based on the foregoing, the judgments of conviction are vacated, and the verdicts are set aside.

So ordered.

FOOTNOTES

1.   While his appeal was pending, the defendant filed a motion for a new trial alleging ineffective assistance of counsel. The motion was denied by a judge who was not the trial judge. The defendant has appealed from the denial of his new trial motion, and that appeal has been consolidated with his direct appeal. However, given our conclusion that a new trial is required based on the erroneous admission of prior bad act evidence, it is not necessary to address any of the claims of error advanced by the defendant in connection with his appeal from the denial of his new trial motion. See Commonwealth v. Anestal, 463 Mass. 655, 663 n.12 (2012).

2.   We glean this information from Commonwealth v. Lugo, 92 Mass. App. Ct. 1119 (2017).

3.   Prior to trial, count five of the complaint was dismissed with the consent of the Commonwealth.

4.   We express no view on whether the challenged testimony would be admissible at a second trial if the Commonwealth were to move for its admission and submit evidence supporting its use to show a pattern of conduct. That is a question to be resolved by the trial judge.