Commonwealth v. Alberto D. Exposito.

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

23-P-193

COMMONWEALTH

vs.

ALBERTO D. EXPOSITO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the

defendant, Alberto D. Exposito, was convicted of aggravated rape

and abuse of a child, and two counts of indecent assault and

battery on a child under fourteen (indecent assault and

battery).1 On appeal, he contends that the Commonwealth's

failure to provide "adequate notice of the dates of the charges

against him" violated his due process rights. We affirm.

Background. We summarize the facts at trial in the light

most favorable to the Commonwealth. The defendant started

1The defendant was also charged with two additional counts
of indecent assault and battery, and two counts of intimidation
of a witness. The judge allowed the defendant's motion for a
required finding of not guilty as to one count of indecent
assault and battery, and found the defendant not guilty of the
other count of indecent assault and battery and both counts of
intimidation of a witness.
dating the victim's mother in early 2015, and moved into the

victim's mother's home in or around 2016. For the next three

years, the defendant lived with the victim's mother, her son,

and her daughter (the victim). The victim was approximately six

years old when she met the defendant.2

At trial, the prosecutor asked the victim to describe

events that occurred "around" June 2017. In response, the

victim described an incident during which the defendant played

"a game" where he tied her legs and hands behind her back,

pulled down her pants, and "slapped [her] butt." She next

described how the defendant tickled her stomach, thighs, and

armpits, specifying that he tickled both of her "upper inner

thighs." Finally, she testified to another incident where the

defendant tickled her inner thighs, and "went from under [her]

pantleg and into [her] underwear, . . . touching [her] private."

The victim specified that the defendant was touching the

"inside" of her "private" with his fingers. The defendant then

had the victim "pinky promise[]" not to tell anyone "because it

was a big mistake." The victim further testified that the

events occurred when she was seven or eight years old. The

victim's mother testified that "around June of 2017" or the

beginning of July, the victim disclosed the incidents to her.

2 The victim was thirteen years old at the time of trial.

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The defendant testified and denied the allegations. The

defense centered on the victim's alleged lack of credibility and

inconsistent testimony, and the Commonwealth's failure to

satisfy the reasonable doubt standard.

Discussion. The indictments alleged that the sexual

assaults and rape occurred "on or about between June 1, 2017 and

September 1, 2017." The Commonwealth's response to the

defendant's motion for bill of particulars also stated that the

crimes occurred between June 1, 2017, and September 1, 2017. As

noted above, and consistent with the dates in the indictments

and bill of particulars, the prosecutor asked the victim at

trial to describe events that occurred in "2017, around just

June." The victim did so. Later during direct examination, the

victim testified that the events occurred when she was "seven or

eight" years old. Given this potential inconsistency, defense

counsel elicited on cross-examination that "these events

happened" when she was seven or eight years old, and had the

victim acknowledge that she "would have been seven or eight

years old in 2014 and 2015." On redirect examination, the

victim further acknowledged that she did not "remember exactly

when" these incidents occurred. The defendant now argues, in

essence, that a variance between the dates of offense delineated

in the indictments and the dates of offense described in the

victim's trial testimony constituted a violation of his due

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process rights, thus warranting appellate relief.3 The claim is

unavailing for various reasons.

First, we disagree with the defendant's claim that the

Commonwealth provided untimely and insufficient notice of the

charges and circumstances surrounding the crimes. The victim

testified to events occurring around June 2017, which was within

the time frame stated in the indictment and bill of particulars.

This evidence was corroborated by the mother's testimony that

the victim disclosed the abuse to her "around June of 2017" or

July of that year. That the victim also testified that the

events occurred when she was seven or eight years old does not

mandate a finding of a prejudicial variance. See Commonwealth

v. Lawton, 82 Mass. App. Ct. 528, 532 n.4 (2012) (where victim

"may have testified to events . . . outside the time period

alleged in the indictments" court rejected claim of prejudicial

variance because, inter alia, "the victim's testimony was not

necessarily contrary to the indictments"). Here, the alleged

inconsistency in the victim's testimony provided fodder for

3 The Commonwealth argues that the defendant failed to
"contemporaneously object" at trial to the victim's ambiguous
testimony and thus the due process violation was not preserved
for appeal. Where we discern no prejudice to the defendant, the
standard of review is immaterial to our analysis in the present
case. See G. L. c. 277, § 35 ("A defendant shall not be
acquitted on the ground of variance between the allegations and
proof if the essential elements of the crime are correctly
stated, unless he is thereby prejudiced in his defence").

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cross-examination and was used by defense counsel to argue that

her testimony was neither consistent nor credible. Indeed, the

judge properly considered the alleged "variance between the

dates in the indictment and [the victim's] testimony" as an

issue that "goes to her credibility . . . [a]nd whether I

ultimately credit her testimony or not." Furthermore, the date

of offense is not an essential element of the crimes alleged.

See id. ("Time is not an essential element of rape of a child,

and it need not be precisely alleged"). We also note, in the

context of the present case, that it is unsurprising that the

victim did not identify the precise dates of the offenses with

exactitude. See Commonwealth v. Gamache, 35 Mass. App. Ct. 805,

808-809 (1994) ("appellate courts recognize that young children

have considerable difficulty with the concept of time, and that

a child's inability to place events in a temporal framework does

not render a child incompetent").

We likewise disagree with the defendant's claim that the

purported variance may have precluded him from asserting an

alibi defense. The defendant made no proffer -- at trial or on

appeal -- as to the possible viability of such a defense.

Furthermore, he did not file a motion for a new trial through

which he could have attempted to present facts, witnesses, and

specifics to support any alibi defense. See Mass. R. Crim. P.

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30 (b), as appearing in 435 Mass. 1501 (2001). The claim is

speculative.

Finally, the defense at trial was that the victim was not

credible, and that the incidents did not happen. The record

reflects that the judge conducted a thorough and fair trial and

found the defendant not guilty of one count of indecent assault

and battery and two counts of intimidation of a witness.4 See

Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997)

(difficult to find prejudice where defendant acquitted on two of

three indictments). See also Commonwealth v. Lassiter, 80 Mass.

App. Ct. 125, 132 (2011). Of further note, this was a jury-

waived trial in which we presume that the judge instructed

himself correctly on the law. See Commonwealth v. Kerns, 449

Mass. 641, 650 n.13 (2007), quoting Commonwealth v. Ortiz, 431

Mass. 134, 141 (2000) (judge in jury-waived trial presumed to

have "correctly instructed himself" on law, absent contrary

indication). Accordingly, under these circumstances and under

the facts of this case, we are confident that the alleged

4 After trial, the defendant filed a motion pursuant to
Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995),
for entry of a finding of guilty on a lesser included offense.
The judge denied that motion, ruling in relevant part that the
"defense rested largely, if not entirely, on the credibility of
the victim's and the defendant's conflicting testimony. After
much reflection, I remain convinced beyond any reasonable doubt,
that the defendant digitally achieved vaginal penetration."

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variance did not impact the trial or prejudice the defense. See

Commonwealth v. Sineiro, 432 Mass. 735, 737-738 (2000)

(defendant not prejudiced by lack of more specific dates and

times in indictments where he "was furnished with copies of

police reports and grand jury minutes," "[h]is defense at trial

was that the crimes had never occurred," and "[t]he claimed lack

of precision in the indictments did not bear on the central

question before the jury concerning the credibility of the

victims"). See also G. L. c. 277, § 35, and note 3, supra.5

Judgments affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.6),

Clerk

Entered: October 25, 2024.

5 The defendant's argument regarding the insufficiency of
evidence to prove the first count of indecent assault and
battery is likewise unavailing. In view of the evidence adduced
at trial, viewed in the light most favorable to the
Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979), the judge properly denied the motions for a required
finding of not guilty. This evidence included the victim's
repeated testimony regarding the defendant's touching of her
"upper inner thighs." See generally Commonwealth v. Colon, 93
Mass. App. Ct. 560, 562-563 (2018). See also G. L. c. 277,
§ 35.

6 The panelists are listed in order of seniority.

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