Commonwealth v. Ephraim Jean.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1470

COMMONWEALTH

vs.

EPHRAIM JEAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Boston Municipal Court, the

defendant, Ephraim Jean, was convicted of two counts of indecent

assault and battery on a person over the age of fourteen, in

violation of G. L. c. 265, § 13H. On appeal, the defendant

argues three claims of error, only one of which we address:

that the Commonwealth improperly introduced evidence of the

victim's complaints to multiple witnesses, in violation of the

first complaint doctrine. Because we conclude that the

admission of multiple complaints was error creating a

substantial risk of a miscarriage of justice, we vacate the

judgments.
Background. The seventeen year old victim testified that

she went to the dentist to have her teeth cleaned and was

treated by two dentists, one woman and one man. While she was

alone with the male dentist, he touched her crotch over her

clothes for about forty-five seconds, moving his hand up and

down; squeezed her left breast for "a quick second"; and rubbed

his genitals against her arm.1 Throughout the victim's

testimony, the judge and the prosecutor frequently had to ask

her to repeat herself or speak up. During a sidebar conference

the judge explained that he was giving the prosecutor "a bit

more leeway" in examining the victim given "the delicacy . . .

of the witness' demeanor."

The victim also testified that she told many people about

the incident. She told her sister via text message "that the

dentist did something to" her. She talked to and answered

questions from an employee at the dental clinic and a man from

the Boston police department. While being seen at a hospital

after the alleged assaults, she told doctors "[w]hat had

happened." The defendant did not object during this portion of

the victim's testimony.

The Commonwealth called the victim's younger sister as its

first complaint witness. According to the sister, the victim

1 The two convictions were based on the touchings of the
victim's crotch and breast.

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texted her that during the dental appointment "the dentist

started touching her in areas where she didn't feel

comfortable," specifically, that he touched her vagina and

pressed his genitals against her arm. The sister also testified

that because the victim was "too shy" to do so, the sister

communicated to their father "that the person who was cleaning

[the victim's] teeth was inappropriately touching her." The

judge overruled the defendant's objection that this testimony,

drawing in the victim's parents, exceeded the limits of the

first complaint doctrine.

The defendant's attorney did not object, however, when two

other Commonwealth witnesses repeated the victim's report of the

incident. A Boston police officer testified that he responded

to the dental clinic "for a report of a sexual assault," and the

office manager reported to him that "a person was

inappropriately touched while in the office." The officer spoke

with the victim, who told him that the dental assistant "grabbed

her chest," touched her vagina, and "rubbed his crotch on her

elbow." The office manager testified that the victim's mother

returned to the clinic after the appointment and told a

receptionist that "the doctor back there touched my kid."

The Commonwealth also introduced medical records from the

hospital where the victim was taken after the incident, which

contained multiple accounts of the victim's report of the

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alleged assaults and the chain of reporting. The records begin

with the following narrative:

"Patient reports that in exam room the dental assistant
rubbed his genitals on her left arm, he was wearing pants
at the time. Also reports that dental assistant touched
her genital area over the pants . . . . Patient reportedly
told her younger sister who then disclosed this information
to father who then reported to mother what happened."

The records repeated the victim's description of events two more

times. In addition, the records are rife with references to

"sexual assault" and the police response, including a statement

by the attending physician supervising the victim's care, who

opined that "the most likely diagnosis is sexual assault." The

defendant objected that the medical records contained the

hearsay statements of the victim and her mother. He did not

argue that the admission of the records violated the first

complaint doctrine.

The Commonwealth also presented extensive evidence

regarding the police investigation and arrest of the defendant.

The medical records mention the defendant's arrest four times,

and the clinic manager and the responding officer each stated --

in response to the prosecutor's questioning -- that the

defendant was arrested at the dental clinic on the day of the

incident. Moreover, a detective who participated in the

Commonwealth's investigation of the defendant testified

regarding the development of the case, including that the

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investigation was triggered by "a report of a sexual assault" at

the dental clinic and that he and two other officers interviewed

"several witnesses" as part of the investigation, including the

defendant and the victim's younger sister. The defendant's

attorney moved to exclude the entirety of the detective's

testimony, but he did not cite the first complaint doctrine as

the basis for the objection.

The defendant called as a witness the woman dentist who

treated the victim. She testified that the defendant, her

regular dental assistant, helped her with a small filling on one

of the victim's teeth. The dentist said that she never saw the

defendant touch the victim inappropriately and was "certain"

that he did not. The defendant testified in his own defense and

denied that he inappropriately touched the victim during her

appointment.

Discussion. The defendant contends the admission of

evidence of complaints beyond the victim's first report to her

younger sister amounted to reversible error.

Where an issue is preserved by a timely objection at trial,

we review the claim for prejudicial error, meaning that "the

Commonwealth must show that any error did not influence the

jury, or had but very slight effect" (quotation and citation

omitted). Commonwealth v. Dargon, 457 Mass. 387, 399 (2010).

Where there was no objection at trial, we review the claim to

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determine, first, whether error occurred, and second, whether

that error created a substantial risk of a miscarriage of

justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010).

In this case, the defendant objected inconsistently to the

evidence he now contends was admitted in violation of the first

complaint doctrine. We need not resolve whether the defendant's

claims were properly preserved, however, because our conclusion

would be the same under either standard of review. See

Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011).

Accordingly, we will review all claims under the "more

demanding" substantial risk of a miscarriage of justice

standard. Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 493

(2012).

Our inquiry proceeds in four steps: (1) whether there was

error, (2) whether the defendant was prejudiced by that error,

(3) whether it would be "reasonable to conclude that the error

materially influenced the verdict," and (4) whether we can

"infer from the record that counsel's failure to object or raise

a claim of error at an earlier date was not a reasonable

tactical decision." Dargon, 457 Mass. at 397, quoting McCoy,

456 Mass. at 850. "Only if the answer to all four questions is

'yes' may we grant relief." Commonwealth v. Randolph, 438 Mass.

290, 298 (2002).

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1. Was there error? First, the admission of evidence of

the victim's subsequent complaints, in the form of witness

testimony and the victim's medical records, was error. Under

the first complaint doctrine, we "no longer permit in evidence

testimony from multiple complaint witnesses, limiting the

testimony to that of one witness -- the first person told of the

assault." Commonwealth v. King, 445 Mass. 217, 242-243 (2005),

cert. denied, 546 U.S. 1216 (2006). This is because "[t]he

testimony of multiple complaint witnesses likely serves no

additional corroborative purpose, and 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." Id. at 243. For the same reason, a complainant may not

"testify to the fact that she 'told' others, apart from the

first complaint witness, about the sexual assault, even where

the details of the conversation have been omitted."

Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). See

Commonwealth v. Cruz, 98 Mass. App. Ct. 383, 387 (2020).

In this case, the Commonwealth presented evidence that

repeatedly violated the first complaint rule. In addition to

the testimony of the designated first complaint witness, the

victim's younger sister, the Commonwealth presented testimony

from the responding police officer and the clinic manager, as

well as the victim's medical records, all recounting the

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victim's subsequent reports.2 The Commonwealth also elicited

excessive testimony from the victim and her younger sister

regarding when and how they "told" the victim's father, the

dental clinic, the police, and the hospital staff about the

incident. "[K]eeping in mind the underlying goals of the first

complaint doctrine, our established first complaint

jurisprudence, and our guidelines for admitting or excluding

relevant evidence," Aviles, 461 Mass. at 73, evidence concerning

the victim's multiple complaints was erroneously admitted.

This error was compounded by the introduction of evidence

regarding the defendant's arrest, which was similarly improper.

"The fact that the Commonwealth brought its resources to
bear on this incident creates the imprimatur of official
belief in the complainant. . . . It has no relevance to
whether the defendant in fact committed the acts charged,
and the jury did not need to know how the complaint of
abuse evolved into the case before them."

Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The

prosecutor mentioned the defendant's arrest multiple times in

her opening statement and closing argument, questioned the

dental clinic manager about the police response to the clinic

and arrest of the defendant, and called two police witnesses who

discussed the Commonwealth's investigation and arrest of the

defendant. Like the duplicative complaint testimony, this

2 The Commonwealth appropriately concedes that the police
officer's testimony and the hospital records violated the first
complaint rule.

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evidence "undermines the purpose of the first complaint

doctrine" and should not have been admitted. Id. at 456.

2. Was the defendant prejudiced by the error? We readily

conclude that these errors prejudiced the defendant. See

Stuckich, 450 Mass. at 457 ("Repetition of the narrative tends

to enhance the credibility of the complainant to the prejudice

of the defendant"); Commonwealth v. Lavalley, 410 Mass. 641, 646

(1991) ("The overuse or 'piling on' of evidence regarding the

details of several fresh complaints may create the risk that the

jury will use the details of the fresh complaints as substantive

evidence that the crime actually occurred"). The record does

not support the Commonwealth's argument that the defendant

effectively used the erroneously admitted evidence to attack the

victim's credibility, counteracting its prejudicial effect.

Defense counsel did not cross-examine the victim with, or

otherwise use, the multiple complaints to impeach her testimony.

Indeed, it would have been nearly impossible to do so, as the

multiple statements were consistent and served only to

corroborate the victim's testimony. Defense counsel's reference

to the police officer's testimony in closing argument -- "You

heard the officer testify. At no point did the complaining

witness speak about what allegedly happened to her" -- was

contrary to the evidence and, if anything, harmful to the

defendant. The officer, in fact, repeated the victim's

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statements on the scene, which were consistent with her trial

testimony.

3. Did the error affect the verdict? The prejudicial

effect of the repeated complaints was strong enough to have

materially influenced the jury's ultimate verdicts. "In

applying this standard, we analyze the potential impact of the

error on the verdict and review the record to determine the

strength of the Commonwealth's case, absent the improper

evidence" (citations omitted). Commonwealth v. Horne, 476 Mass.

222, 228 (2017). While the Commonwealth's multiple complaint

evidence was extensive, "[t]he evidence against the defendant

was far from overwhelming." Commonwealth v. Trowbridge, 419

Mass. 750, 762 (1995). Due to the absence of corroborative

physical evidence and the victim's difficulty testifying, the

Commonwealth relied heavily on the testimony of the other

witnesses to establish the victim's credibility. See id. The

erroneously admitted evidence was unlikely to have gone

unnoticed -- it came from no fewer than five witnesses and a

written exhibit, and the prosecutor called each source to the

attention of the jury in her closing argument.3 The extent of

the error in this case exceeded that in Cruz, 98 Mass. App. Ct.

at 387-390, where we concluded that the admission of the

3 As the prosecutor referred to record evidence that had
been admitted for all purposes, the closing argument was proper.

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victim's testimony about multiple complaints she made, coupled

with hospital records with two additional accounts of the

incident, created a substantial risk of a miscarriage of

justice. "In a case such as this one, which turned on

credibility, there is a particularly high probability of

prejudice from the admission of duplicative complaint evidence."

Id. at 389, quoting Commonwealth v. Monteiro, 75 Mass. App. Ct.

489, 497 (2009).

4. Did counsel withhold objection for tactical reasons?

As to the fourth inquiry, we note that defense counsel objected

to some, but not all, of the now complained-of testimony. "We

can see no valid tactical reason for challenging some" instances

of multiple complaint testimony, "but not others." Randolph,

438 Mass. at 299. Considering, too, the volume of the

erroneously admitted evidence, its prejudicial effect on the

defendant, and counsel's inability to use the evidence to the

defendant's advantage, we can comfortably infer counsel's

failure to object to the multiple complaints and the admission

of the medical records was not a reasonable tactical decision.

Contrast Hanino, 82 Mass. App. Ct. at 496 (defense's failure to

object could have been reasonable tactical decision where "the

defendant used the challenged evidence in order to advance his

defense").

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Conclusion. The admission of the victim's multiple

complaints was error creating a substantial risk of a

miscarriage of justice.4

Judgments vacated.

Verdicts set aside.

By the Court (Massing, Hand &
Allen, JJ.5),

Clerk

Entered: December 5, 2025.

4 The defendant's brief alleges two additional errors.
First, he argues that the Commonwealth's late disclosure of the
victim's text messages to her sister requires a new trial.
Although the judge excluded the text messages as a sanction for
the late disclosure, the defendant nevertheless argues that he
was deprived of the opportunity to utilize that evidence to his
benefit. Second, he argues that the judge excluded a
prospective juror for cause based on the juror's national
origin, violating the defendant's right to an impartial jury of
his peers and to the equal protection of the laws. Because the
judgments must be vacated on other grounds, and because neither
of these issues is likely to recur at any retrial, we need not
address either claim. See Commonwealth v. Patry, 48 Mass. App.
Ct. 470, 476 (2000).

5 The panelists are listed in order of seniority.

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