COMMONWEALTH v. ERIC RIVERA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of one count of indecent assault and battery. On appeal, he raises four issues for our review. Discerning no error, we affirm.

Background. In December 2023, the victim was a patient at the Boston Medical Center (BMC).¹ While sitting in the emergency room waiting area, the victim seemed to go in and out of consciousness, occasionally slumping over in her chair. She was seated next to the defendant. Around 10:15 P.M. while the victim was sleeping, the defendant started to rub her crotch over her pants with his hand. The victim remained in her somnolent state. After about thirty-five seconds, the defendant started to put his hand inside the waistband of the victim's pants. The victim immediately woke up, pushed the defendant's arm away, jumped from her seat, and alerted BMC officers about what had happened. The defendant was arrested and charged with one count of indecent assault and battery on a person aged fourteen or older.

Before trial, the defendant tendered a plea. The judge rejected both this and the Commonwealth's tender (which both included probationary periods) explaining he would require the defendant to serve two years of incarceration because the defendant had not succeeded on probation in the past. The defendant withdrew his plea and was tried and convicted of indecent assault and battery on a person aged fourteen or older. At sentencing, he requested two years of incarceration --referencing the judge's earlier proposal made in the context of rejecting his plea tender. The judge imposed a sentence of two and one-half years’ incarceration. The defendant timely appealed.

Discussion. The defendant raises four issues for our review. First, he argues that the judge erred in refusing to give a missing witness instruction. Second, he argues that his trial counsel provided ineffective assistance by repeatedly failing to object to or move to strike testimony he claims the judge had previously ruled inadmissible. Third, he challenges the sufficiency of the Commonwealth's evidence that the victim did not consent to being touched. Fourth and finally, he argues the cumulative effect of these errors requires reversal and a new trial. We address each argument in turn.

1. Missing witness instruction. The defendant argues that the judge committed prejudicial error by declining his request to give a missing witness instruction. He emphasizes the victim's absence at trial, arguing the instruction was required because there was insufficient evidence of consent. The decision whether to give a missing witness instruction is within the discretion of the trial judge, and we will not reverse the judge's decision unless it is manifestly unreasonable. See Commonwealth v. Wilkerson, 486 Mass. 159, 177 (2020).

“A missing witness instruction permits the jury ․ to infer that the uncalled witness would have given testimony unfavorable to the party that could have, but did not, call that witness.” Wilkerson, 486 Mass. at 177. The instruction is appropriate

“when a party has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case, and the party without explanation fails to call that person as a witness” (quotation and citation omitted).

Id. The instruction should be provided “only in clear cases, and with caution” (citation omitted). Commonwealth v. Saletino, 449 Mass. 657, 668 (2007). The proponent of a missing witness instruction bears the burden of establishing, on the record, a sufficient foundation for the instruction. See Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020).

Here, the judge raised the idea of giving a missing witness instruction but, after hearing argument from the parties, declined to do so. At the earlier plea hearing before the same judge, the Commonwealth represented that it had not had reliable contact with the victim. And during argument on the instruction, the Commonwealth referenced the BMC video evidence in arguing that its case was sufficiently strong that the instruction was not warranted. See Commonwealth v. Franklin, 366 Mass. 284, 293 (1974). The defendant produced no evidence to the contrary, failing to make the necessary showing that he was entitled to the instruction.

While the victim's testimony could have confirmed that she was asleep, given the availability of the video and the eyewitness's testimony, the victim's testimony was not “of distinct importance to the case” (citation omitted). Commonwealth v. Williams, 475 Mass. 705, 720 (2016). Under these circumstances, the judge did not abuse his discretion in refusing to give a missing witness instruction. See Wilkerson, 486 Mass. at 177.

2. Ineffective assistance of counsel. The defendant contends that his counsel was ineffective in two respects, by failing to object to the admission of previously excluded testimony and by failing to object to inappropriate lay opinion testimony. To prevail, the defendant must demonstrate that “serious incompetency, inefficiency, or inattention of counsel ․ likely deprived [him] of an otherwise available, substantial ground of defence” (quotation omitted). Commonwealth v. Rogers, 494 Mass. 629, 639 (2024), quoting Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000).

Prior to trial, the parties had raised issues regarding a statement the victim may have made after the defendant put his hand down her pants -- “What the fuck?” The judge made no ruling at that time, stating he would take it up if and when it became an issue at trial. Later, during trial, when a witness was about to testify to the victim's alleged statement, the judge took a break, heard from the parties on the issue, and ruled that the victim's alleged statement would be struck due to late notice provided by the Commonwealth. Immediately thereafter, when trial resumed, the witness testified to the victim's statement -- “Oh, my God” -- and that she screamed following the defendant's assault. The same witness also testified unsolicited that “I think [the defendant] was on the drugs.”²

The defendant argues that trial counsel's failure to object was unreasonable and prejudicial. In particular, the defendant argues that, without the victim's statement, “[t]he jury would not have heard of any evidence that the victim voiced any kind of objection to the touching” and that “there would have been no testimony as to lack of consent.” Whether the failure to object was intentional -- to avoid drawing the jury's attention to the testimony -- or an oversight, the record belies the claim that it resulted in the admission of the only evidence of lack of consent. The jury had a video which depicted the assault; specifically, the video showed the victim pushing the defendant away and jumping out of her chair. Additionally, the testimony complained of on appeal was not highlighted by the prosecutor in closing. Under the circumstances, we doubt that “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

3. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence of lack of consent. He argues that lay opinion testimony that the victim was asleep when the defendant was touching her cannot substitute for direct testimony from the victim about her state of consciousness.

When reviewing a sufficiency claim, “we assess the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found each element of the crime beyond a reasonable doubt” (quotation and citation omitted). Commonwealth v. Baez, 494 Mass. 396, 400 (2024). “The evidence may be direct or circumstantial, and we draw all reasonable inferences in favor of the Commonwealth” (citation omitted). Id.

To prove indecent assault and battery on a person aged fourteen or older, the Commonwealth must “establish that the defendant committed an intentional, unprivileged, and indecent touching of the victim without the victim's consent” (quotation and citation omitted). Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020). Here, the defendant claims only that the evidence was insufficient to prove lack of consent. Lack of consent may be established without explicit verbal expression, and it may be inferred from the overall facts and circumstances surrounding the sexual assault. See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 432-433 (2006).

The BMC video footage shows the victim leaning backwards in her chair with her eyes closed. When the defendant reaches his hand inside her waistband, the video footage shows the victim startle, push the defendant's arm away, jump up, alert hospital staff, and hurry off to a different area of the waiting room. This evidence of the victim's demeanor while and after the defendant touched her, viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that she did not consent.³ See Shore, 65 Mass. App. Ct. at 432-433. And because this was a reasonable inference from the evidence, the defendant's argument that the prosecutor compounded the problem during closing argument (by emphasizing the witness's testimony that the victim was asleep) similarly fails.

4. Cumulative error. Finally, the defendant argues that the cumulative effect of these alleged errors requires reversal of his conviction and a new trial. See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 672 (1998). Because the defendant has not shown any error, we affirm. See Commonwealth v. Norris, 483 Mass. 681, 696 (2019) (without error there can be no cumulative error and thus, no relief).⁴

Judgment affirmed.

FOOTNOTES

1.   While the victim did not testify at trial, the security cameras in the BMC waiting room captured the assault on video. The video was played for the jury at the defendant's trial. The jury also heard testimony from the responding officer and a witness who was sitting across from the victim in the waiting room and saw what happened.

2.   The defendant also faults counsel for failing to object to another witness's testimony that the victim “was upset.” However, the testimony was appropriate and did not call for an objection. “The rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description.” Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). See Mass. G. Evid., § 701 note (2026) (admission of summary description of observed actions left to judge's discretion). See also Commonwealth v. Harrison, 342 Mass. 279, 285 (1961) (characterization of defendant's emotion as “angry” and “upset” properly admitted).

3.   The defendant argues that in testifying that the victim was asleep, the witness improperly drew a conclusion and tainted the jury's deliberations. “A lay opinion is admissible only where it lies within the realm of common experience, because [it] is relevant only where ․ the principal objective symptoms are so well known that we consider the lay opinion to have probative value” (quotation and citation omitted). Commonwealth v. Canty, 466 Mass. 535, 542 (2013). Whether someone is asleep or awake lies within the realm of common experience and was the proper subject for lay opinion testimony, here. See id. at 544 (lay witness may offer opinion regarding defendant's level of sobriety or intoxication).

4.   In addition, the defendant argues that the judge who rejected his tender of plea should not have presided over his jury trial. Because the defendant recognizes that we are bound by precedent on this issue and raises it only to preserve it for further appellate review by our Supreme Judicial Court, we do not address this issue further. See Commonwealth v. Armand, 411 Mass. 167, 173-175 (1991).