COMMONWEALTH v. SANTOS ACOSTA JIMENEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a Superior Court jury trial, the defendant was convicted of one count of aggravated rape of a child, in violation of G. L. c. 265, § 23A; two counts of indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B; and one count of indecent assault and battery on a person fourteen or over, in violation of G. L. c. 265, § 13H. On appeal, the defendant argues that the trial judge erred by (1) admitting first complaint witness testimony; and (2) admitting prior bad act evidence. We affirm.

Background. 1. Pretrial motions. On August 3, 2021, a grand jury returned seven indictments against the defendant, alleging sexual crimes against two children, K.J. and H.H., and intimidation of K.J.’s mother.¹ The Commonwealth filed two motions in limine seeking to admit evidence of the defendant's uncharged contemporaneous bad acts. The first motion sought to admit evidence that at the same time the defendant made K.J. touch his penis (count 5), he also put his penis in her mouth. Following a hearing, the judge allowed the first motion without objection. The second motion was also allowed without objection. The Commonwealth also filed a motion seeking to present one of the victims as the first complaint witness for the other. Again, the judge allowed that motion without objection.

2. Facts. The defendant became involved in K.J.’s life when she was approximately ten years old, at which point they developed a relationship. Initially, their relationship was positive, but it later deteriorated. The defendant was more lenient than K.J.’s mother, and K.J. testified that the defendant would let her curse and smoke electronic cigarettes.

As K.J. got older, the defendant began making comments about sexual intercourse and her body. K.J. testified that when she was approximately twelve years old, the defendant drove her to a Dollar Tree store in Chelsea to buy pickles. When they returned to the defendant's car, the defendant showed K.J. pornography on his cell phone. The defendant then drove around to the back of the Dollar Tree store and told K.J. that she could suck his penis “the way [she] was sucking the pickle.” The defendant then asked K.J. if she wanted to try, to which she said no, but he said that “it was gonna be fine.” The defendant told K.J. to put the pickle down, to put her mouth and hands on his penis and to “[shake] it up and down,” and she did.² The defendant then ejaculated on K.J.’s hand. The defendant instructed K.J. not to tell her mother, and K.J. testified that she did not because she was afraid.³

On another occasion, K.J. went to the pizzeria where the defendant worked, and the defendant took her to his car. In the car, the defendant took a photograph of the two of them kissing. He also put his hand on her vagina, inside her underwear.⁴

On another occasion, the defendant visited K.J. at her apartment and said that he really needed a video recording of him licking her vagina. They went into her bedroom, where K.J. laid down on the bed and the defendant licked her vagina over her clothes.⁵

The final incident occurred when the defendant came to K.J.’s home while her mother was away. The defendant brought marijuana for them to smoke. After smoking for the first time, K.J. testified that she felt dizzy and that defendant took her to the bedroom where she laid down. The defendant proceeded to anally rape her, which left her bleeding and sore. After the defendant left the house, K.J. called H.H. and told her to come pick her up. H.H. and her mother picked K.J. up, and K.J. eventually told H.H. that her father had anally raped her.

H.H. testified both as a victim and a first complaint witness. According to H.H., the defendant said “let me see your pussy” the first time he met her, and texted H.H. asking for video recordings of her dancing naked in exchange for electronic cigarettes. H.H. further testified that, while she was in K.J.’s bedroom, the defendant put his hand on the middle of her thigh.⁶

At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty for counts four and six but denied the motion with respect to the remaining counts.⁷ The jury found the defendant guilty on those counts: one, two, three, and five. The defendant appealed.

Discussion. 1. First complaint testimony. a. Standard of review. We review the judge's decision regarding the admission of first complaint evidence for abuse of discretion because “[t]he 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.” Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).

b. Admissibility of H.H.’s first complaint testimony. The defendant contends that the trial judge erred by permitting H.H. to testify as the first complaint witness for K.J. because H.H. was also a victim, rendering her a biased witness whose testimony improperly bolstered K.J.’s credibility. While the defendant acknowledges that the first complaint doctrine does not require the first complaint witness to be a neutral person, see Commonwealth v. King, 445 Mass. 217 (2005), he argues that H.H.’s status as an additional victim rendered her testimony so unfairly prejudicial that the judge should have either prohibited the Commonwealth from calling her as the first complaint witness or instructed the jury that H.H. was not a neutral recipient of K.J.’s disclosure.

We perceive no error, much less an abuse of discretion. In addition to lacking a neutrality requirement, the first complaint doctrine does not prohibit one complainant from serving as another's first complaint witness. See generally King, 445 Mass. at 241-248. “The weight and credibility of the witnesses’ testimony are solely for the fact finder and are not proper subjects for appeal.” Id. at 235. The jury were fully informed of H.H.’s relationship with K.J., as well as H.H.’s own allegations against the defendant. Furthermore, the judge gave proper limiting instructions as to the first complaint testimony.⁸ “We presume that the jury followed the judge's proper instructions in assessing the first complaint testimony.” Commonwealth v. Lewis, 91 Mass. App. Ct. 651, 664 (2017). As a result, the jury were able to address any potential bias or motive in evaluating H.H.’s credibility. Accordingly, the judge acted within his discretion by permitting H.H. to testify as the first complaint witness.⁹

2. Admission of contemporaneous bad act evidence. The defendant next argues that the trial judge erred in admitting K.J.’s testimony regarding the uncharged misconduct that occurred during the Dollar Tree incident because it constituted inadmissible contemporaneous bad act evidence that unfairly prejudiced him. We disagree.

Once again, we review the admissibility of evidence for abuse of discretion. See Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018) (“We review questions of admissibility, probative value, and unfair prejudice for abuse of discretion”).

“It is well settled that [e]vidence of prior bad acts may not be offered to prove bad character” (quotation and citation omitted). Commonwealth v. Cutts, 444 Mass. 821, 834 (2005). See Mass. G. Evid. § 404(b)(1) (2026). However, evidence of uncharged misconduct is admissible when offered for a proper, nonpropensity purpose, including to show “a common plan or course of conduct ․ where each incident is part of an ongoing plan,” Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 (1998), provided its probative value outweighs the danger of unfair prejudice, see Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986); Mass. G. Evid. § 404(b)(2) (2026).

K.J.’s testimony that the defendant put his penis in her mouth in the Dollar Tree parking lot was properly admitted to show “a common pattern or course of conduct” and “was sufficiently related in time and location [to the charged offense] to be logically probative.” Commonwealth v. King, 387 Mass. 464, 472 (1982). In King, the Supreme Judicial Court held that evidence of the defendant's uncharged sexual abuse of a different victim was admissible because it demonstrated a common pattern of conduct and was sufficiently related in time, place, and form to the charged offenses. Id. at 471-472. The temporal and schematic nexus here is even stronger, because the uncharged conduct involved the same victim and occurred at the same time as charged sexual abuse. See McDonagh, 480 Mass. at 143 (uncharged sexual assaults involving same victim admitted to establish defendant's pattern of conduct toward that victim).

Furthermore, even if K.J.’s testimony about the uncharged misconduct was erroneously admitted, the other properly admitted evidence demonstrates that it did not materially influence the guilty verdict. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict” [citation omitted]). The sheer quantity of K.J.’s testimony about charged sexual misconduct, including charged sexual abuse in this very same incident, satisfies us that the uncharged misconduct did not have a material impact on the jury's assessment of K.J.’s credibility. Contrast Commonwealth v. Figueroa, 107 Mass. App. Ct. 60 (2026) (vacating sexual assault convictions where volume of and emphasis on testimony describing years of near-continuous uncharged sexual abuse overwhelmed evidence of charged crimes and may have diverted jury's attention from charged crimes). Finally, H.H.’s first complaint testimony corroborated K.J.’s testimony. Accordingly, assuming this evidence of uncharged misconduct was inadmissible, something we do not hold, it did not create “a serious doubt whether the result of the trial might have been different had the error not been made” (citation omitted). Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

The defendant also argues that the judge erred in failing to give a limiting instruction sua sponte. We disagree. At the time the Commonwealth's first motion in limine was allowed, defense counsel stated that the defendant did not want a cautionary instruction. Likewise, in the charge conference, counsel did not request a limiting instruction. In these circumstances, the judge was not required to provide a limiting instruction sua sponte, over the defendant's objection. See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992).

Judgments affirmed.

FOOTNOTES

1.   Count one -- aggravated rape of child with a ten-year age difference, in violation of G. L. c. 265, § 23A; Count two -- indecent assault and battery on a child under fourteen by licking her vagina over her clothes, in violation of G. L. c. 265, § 13B; Count three -- indecent assault and battery on a child under fourteen, by touching her vagina, in violation of G. L. c. 265, § 13B; Count four -- indecent assault and battery on a person over fourteen by touching her vagina with his hand, in violation of G. L. c. 265, § 13H; Count five -- indecent assault and battery on a person over fourteen by having her touch his penis with her hand, in violation of G. L. c. 265, § 13H; Count six -- posing or exhibiting a child in a state of nudity with lascivious intent, in violation of G. L. c. 272 § 29A (a); Count seven -- witness intimidation, in violation of G. L. c. 268, § 13B.

2.   The evidence that the defendant made K.J. touch his penis was charged conduct, specifically the basis for count five. The evidence that the defendant put his penis in her mouth was uncharged conduct and the subject of the Commonwealth's first motion in limine to admit evidence of the defendant's uncharged contemporaneous bad acts, which the judge had allowed without objection.

3.   Again, this episode was the basis for count five, which charged the defendant with indecent assault and battery on a person fourteen or over, in violation of G. L. c. 265, § 13H. Although the parties did not raise the issue, we note a variance between K.J.’s alleged age in the indictment (fourteen or over) and her testimony that she was twelve at the time of the incident. Proof of the victim's age is not an element of indecent assault and battery in violation of G. L. c. 265, § 13H. See Commonwealth v. Lahens, 100 Mass. App. Ct. 310, 319 (2021). Furthermore, the judge explicitly instructed the jury that “the Commonwealth here does not have an element of proving age. Instead, they have an element of proving consent.” As a result, we perceive no prejudice to the defendant.

4.   The evidence that the defendant touched K.J.’s vagina with his hand was charged conduct, specifically the basis for count four.

5.   The evidence that the defendant licked K.J.’s vagina over her clothes was charged conduct, specifically the basis for count two.

6.   This conduct became the basis for the verdict on count three.

7.   The Commonwealth had previously filed a nolle prosequi as to count seven.

8.   The judge instructed the jury as follows: “[H.H.] testified about a phone call with [K.J.] after the incident and conversation they had in person. [K.J.’s] testimony is direct evidence of the events. [H.H.’s] testimony is not direct evidence. Instead, it is testimony about [K.J.’s] first complaint about the alleged assault. You may consider that testimony when you assess the credibility of [K.J.]. You may not use the details from that first complaint testimony as direct evidence.” The defendant did not object to the instruction.

9.   The defendant claims that his trial counsel was ineffective for failing to object to the first complaint testimony or request a jury instruction. To prevail on this claim, the defendant must show that “there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and ․ [that] it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where we find that the first complaint testimony was admissible, counsel was not ineffective for failing to object.