Commonwealth v. Crystal Monsanto.

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-1234

COMMONWEALTH

vs.

CRYSTAL MONSANTO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of three

counts of aggravated rape of a child in violation of G. L.

c. 265, § 23A. On appeal, she claims a variety of errors in the

prosecutor's closing argument. We affirm.

The defendant claims the prosecutor improperly asked in

closing what motive would the victim have to lie about the

allegations, and improperly employed rhetorical questions that

had the effect of shifting the burden of proof to the defendant.

In part, the prosecutor argued as follows:

"If she didn't remember something, she said so. She
said I don't remember[;] I don't recall. And, yes, there
were some peripheral details she did not remember, what
people were wearing, what she ate for dinner after she was
raped. But she remembered the central details.
"How would it be convenient to sit here and say I
don't remember the details? If she was making this up,
wouldn't she just make up those details? No, because she
was here to tell you what happened and to testify as to
what she remembered."

". . .

"I ask you to consider why would [the victim] make
this up? What motive would she have to lie? You heard she
was close to the [d]efendant. She looked up to her. She
visited her often.

"You heard she was struggling with her mom. Why would
she make this up? What's she hoping to gain? Is it
attention? What kind of attention is she hoping to get by
saying that [a family member] repeatedly raped her?

"Does she seem like someone who's craving attention?
She told you she wasn't popular, had no interest in being
popular. She read books. She liked reading apps. She
tried to do well in school."

Relative to these claims, the defendant objected to the

argument that the victim had no motive to lie, but she lodged no

objection to the prosecutor's use of rhetorical questions. In

this posture, we will evaluate the former for the existence of

error and any resulting prejudice. See Commonwealth v. Beaudry,

445 Mass. 577, 584-585 (2005). As for the latter, we review for

error, and if any, whether it created a substantial risk of a

miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.

290, 297 (2002).

"A prosecutor can address, in a closing argument, a

witness's demeanor, motive for testifying, and believability,

provided that such remarks are based on the evidence, or fair

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inferences drawn from it, and are not based on the prosecutor's

personal beliefs. . . . When credibility is an issue before the

jury, 'it is certainly proper for counsel to argue from the

evidence why a witness should be believed.'" Commonwealth v.

Freeman, 430 Mass. 111, 118–119 (1999), quoting Commonwealth v.

Raymond, 424 Mass. 382, 391 (1997).

Here, the entire premise of defense counsel's closing

argument was that the victim was not credible. Defense counsel

stressed that the victim lacked credibility because her

testimony was uncorroborated, she had made prior inconsistent

statements, and that she could not recall details from the time

of the sexual abuse. In light of this, the prosecutor's

argument that the victim had no motive to lie was entirely

proper. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012);

Commonwealth v. Chavis, 415 Mass. 703, 714 n.15 (1993). There

was no error.

Contrary to the defendant's unpreserved claim, the

prosecutor did not improperly employ rhetorical questions in his

argument. In general, rhetorical questions can become

problematic "where they could be perceived by the jury as

shifting the Commonwealth's burden of proof to the defendant."

Commonwealth v. Habarek, 402 Mass. 105, 111 (1988). Unlike in

Habarek, where the questions suggested that the defendant had to

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explain why he did not possess an intent to kill, id. at 110-

111, here the prosecutor's rhetorical questions were directed at

the victim's state of mind or her demeanor and were made in

response to defense counsel's suggestions that the victim had

fabricated her testimony. See Commonwealth v. Miranda, 458

Mass. 100, 115-116 (2010); Freeman, 430 Mass. at 118-119. The

questions did not shift the burden of proof to the defendant.

Accordingly, there was no error, and thus, no risk that justice

miscarried.

The defendant also claims the prosecutor misstated the

evidence and referred to facts not in evidence in his closing

argument. Specifically, the defendant claims this occurred in

reference to the "purple Victoria's Secret bag." The prosecutor

argued as follows:

"[The victim] said the [d]efendant kept the sex toys
in a pink Victoria's Secret bag. She didn't say there was
writing on it. She said it was a pink Victoria's Secret
bag. Ask yourself, does every bag have a brand on it?
Does Victoria's Secret sell more than one kind of bag? You
come in here with your common sense, use that common sense,
your life experiences.

"So, she was asked about that bag, and she was shown
this picture. Is this the bag you're talking about? And
she said no. That's the [d]efendant's makeup bag. And
when you're able to see inside the bag, lo and behold, it
was a makeup bag.

"So, where is the pink bag [the victim] is talking
about? Well, as the detective said, people throw out their
bags. Isn't it possible that the [d]efendant found a new

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place to store her sex toys when she moved to her new home
in Lowell?"

To this portion of the argument, the defendant objected on

the ground that the photograph shown to the victim was never

marked for identification, and it was never established that the

victim identified the bag as the defendant's makeup bag, as the

photograph was offered through a police detective. We need not

decide whether this objection preserved all the current

appellate claims because they are simply without merit.

The prosecutor's comment that the defendant kept her sex

toys in a "pink Victoria's Secret bag" was rooted in the

evidence and commonsense inferences, which the jury were

entitled to draw. The victim testified that the defendant kept

her sex toys in a purple bag in the living room. The

investigating detective testified that the victim told him that

the defendant kept her sex toys in a "purple or pink" Victoria's

Secret bag. The detective also testified that he recovered from

the defendant's Lowell residence a purple Victoria's Secret bag,

which contained makeup products. The prosecutor was not

required to accept that the bag found in Lowell was the same bag

as the one that held the defendant's sex toys in Dorchester

where the rapes occurred years earlier. See Commonwealth v.

Parker, 481 Mass. 69, 74 (2018). Also, even assuming the bag

was purple and not pink, that fact was entirely collateral to

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whether the defendant raped the victim and was not prejudicial

to the defendant. See Commonwealth v. Jones, 432 Mass. 623, 629

(2000) (prosecutor's erroneous remark was aimed only at

collateral issue, not heart of defendant's case).

Furthermore, the prosecutor did not mischaracterize the

evidence in suggesting that the photograph that defense counsel

showed the victim was the defendant's makeup bag. When defense

counsel showed the victim the photograph and asked her whether

it depicted the bag that contained the defendant's sex toys, the

victim responded, "No. . . . That was [the defendant's] makeup

bag." Although the photograph was neither marked for

identification nor entered in evidence, the victim's testimony

on the matter provided a proper evidentiary basis for the

argument.1

Similarly, the prosecutor's suggestion that the defendant

had "throw[n] out" the bag that she had kept her sex toys in or

had "found a new place to store her sex toys when she moved to

her new home in Lowell" was also grounded in the evidence. The

victim testified that the rapes and the use of the sex toys

1 Also contrary to the defendant's claim, the prosecutor did
not ask the jury to speculate when he asked, "Does Victoria's
Secret sell more than one kind of bag?" Indeed, he expressly
asked the jury to employ their "common sense and "life
experiences" to evaluate the evidence. This was entirely
proper. See Commonwealth v. Salazar, 481 Mass. 105, 117 (2018).

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occurred in Dorchester, and that the defendant later moved to

Lowell. The detective testified that the bag found in the

Lowell residence contained makeup products, not sex toys, and

that people throw out bags. Thus, the argument was based on the

evidence and the fair inferences to be drawn therefrom. It was

also a fair response to defense counsel's argument that the

victim was not credible because she had changed her story about

the contents of the bag. See Commonwealth v. Witkowski, 487

Mass. 675, 686 (2021).

The defendant also claims, for the first time on appeal,

that the prosecutor vouched for the victim's credibility,

referred to matters outside the record, and made improper

appeals to sympathy in his closing argument. In this posture,

we review for error, and if any, whether it created a

substantial risk of a miscarriage of justice. See Randolph, 438

Mass. at 297.

The overarching theme of defense counsel's closing argument

was an attack on the victim's credibility. In particular, he

argued that the victim had made other allegations that the

defendant had sexually assaulted her but, despite meetings with

the prosecution team to discuss her testimony, the victim could

not remember what had occurred or she told inconsistent stories.

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Because of this, defense counsel urged the jury to discredit the

victim and her testimony.

In response, the prosecutor argued as follows:

"If [the victim] were making this up, if she were
trying to get the [d]efendant in trouble for some reason,
would she really admit to not remembering that?

"When she met with the prosecution team and it was
brought up to her, wouldn't she then suddenly remember, oh,
yeah, that happened also? But she didn't because she's not
here to get someone in trouble. She's here to tell you
what happened. She's here to tell you what she remembers.

"Ladies and gentlemen, if you believe [the victim],
that is proof beyond a reasonable doubt."

The prosecutor's argument was a proper, evidence-based

response to defense counsel's challenge to the victim's

credibility. See Commonwealth v. Gonsalves, 488 Mass. 827, 842

(2022). Contrary to the defendant's claim, the reference to the

out-of-court meeting did not inject the prosecutor's personal

knowledge of the victim's credibility. In fact, it was defense

counsel who first raised the meeting and put the matter before

the jury. When he cross-examined the victim, defense counsel

elicited that she had met with the prosecution team, and that

she was unable to recall a prior allegation. Also, defense

counsel raised those matters in his closing argument. See

Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). Presenting

an alterative explanation for the inconsistencies in the

victim's testimony was not vouching. Contrast Commonwealth v.

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Nicholson, 20 Mass. App. Ct. 9, 17-18 (1985) (improper to state

"in my years of experience, [she] is one of the most truthful,

sincere, candid witnesses that I have seen in any courtroom").

The defendant also claims that the prosecutor improperly

suggested that the victim was forced to "console and comfort the

person who ha[d] just raped her" on "numerous occasions" where

the evidence suggested it had occurred on only one occasion. We

disagree. Specifically, the prosecuter argued:

"On numerous occasions [the defendant] would take [the
victim] into the living room, undress, and make [the
victim] rub her vagina and clitoris. Often times,
afterwards the [d]efendant would cry and say she was
worried [the victim] would hate her. And [the victim]
would have to console and comfort the person who had just
raped her."

The victim testified that the defendant made the victim

touch her, that the defendant did not want the victim to hate

her, and that the victim "had to sit there and comfort" the

defendant. The victim further stated these touchings occurred

on "multiple" occasions, and importantly, that each time was

"similar." Based on this record evidence, it was proper for the

prosecutor to argue that the touchings, in conjunction with the

postassault consolations, occurred on numerous occasions. It

was not an appeal to sympathy. See Commonwealth v. Barbosa, 477

Mass. 658, 669-670 (2017).

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The defendant further claims that the prosecutor's argument

vouched for the victim's credibility and played on the

sympathies of the jury when he discussed the victim's delayed

disclosure of the rapes:

"You heard when [the defendant] would beat [the
victim], what would other people in the house do? Nothing.
They would ask the [d]efendant, oh, what did [the victim]
do? [The defendant] acted with impunity. No one else
there cared. That's why [the defendant] felt free to rape
[the victim] in that home again and again."

". . .

"As I said, what did other people in the house do when
she did? Nothing. They walked on by when the [d]efendant
used that corporal punishment."

Again, this argument was grounded in the evidence and the

fair inferences to be drawn from it. The victim testified that

in addition to the sexual assault, the defendant would also yell

at her, and beat her, while other family members were home in

their respective bedrooms. One form of the defendant's

punishment was to make the victim do "wall squats." If a family

member witnessed this and inquired, the defendant would tell

them the victim had been misbehaving.

Based on this evidence, and the reasonable inferences to be

drawn from it, the prosecutor could properly argue that the

people living in or visiting the home knew the defendant had

been physically abusing the victim, and they did not come to her

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aid.2 Because those present arguably knew and did nothing, the

prosecutor properly suggested that the defendant felt empowered

to sexually assault the victim and to do so with impunity. It

was also permissible for the prosecutor use this evidence to

explain the context that surrounded the sexual assaults, and

despite the unseemly nature of the physical abuse, it was not

unnecessarily inflammatory so as to provoke sympathy or vouch

for the victim.

We also reject the defendant's claim that the prosecutor

impermissibly vouched for the victim's credibility and appealed

to sympathy when he stated:

"[The victim] had nobody in that house to go to. And
because of her strained relationship with her mom[,] she
had nobody at her own home to go to. She was alone, and
the [d]efendant took advantage of that, to rape and abuse
her. She told her it's okay, and she pressured her.

"[The victim] used the phrase 'peer pressure,' but the
[d]efendant is not her peer. She is [eighteen] years older
than her. She was an adult with the authority and ability
to punish her. And [the victim] was alone. She was a
young girl unable to consent. And the [d]efendant took
advantage of that authority to rape [the victim] again and
again and again."

The entirety of this passage was supported by the evidence

regarding the once-close, family relationship that the victim

This inference of knowledge is further buttressed by the
2

fact that both entrances to the living room were merely covered
by blankets, which would not have insulated the residence's
other occupants from the noise generated by the abuse.

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enjoyed with the defendant. That relationship, however, changed

when the victim was fourteen or fifteen years old and the

defendant's sexual assaults began. The victim also testified

that she did not disclose the abuse to her mother due to their

strained relationship. Although she feared the defendant, the

victim felt that she was the only person close to her and she

"had nobody to tell." From this evidence, the prosecutor

properly argued that the defendant took advantage of the

familiar relationship she had with the victim, and of the

victim's isolation from her mother, and repeatedly raped her.

See Commonwealth v. Sun, 490 Mass. 196, 209 (2022).

Finally, we have examined all the challenged arguments in

the context of the entire closing, the evidence introduced at

trial, and the judge's proper and clear jury instructions. See

Commonwealth v. Wilkerson, 486 Mass. 159, 180 (2020). In

particular, on four separate occasions, the judge instructed the

jury that closing arguments are not evidence. She specifically

told the jury that "the Commonwealth does not have any greater

insight or knowledge into the credibility of the witnesses who

testified before you. It is for you and you alone to determine

the credibility of the witnesses." The judge added that it was

the jury's memory of the testimony that controlled, and they

must reach a verdict without passion or prejudice. The judge

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also instructed the jury that the burden of proof remained with

the prosecution and "never shifts." See Commonwealth v. Brewer,

472 Mass. 307, 315 (2015) ("judge's careful and clear

instructions concerning the role of the closing arguments and

how to determine the credibility of witnesses adequately offset

any semblance of impropriety"). There was no error,3 and thus,

no risk that justice miscarried.

Judgments affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.4),

Clerk

Entered: March 7, 2025.

3 Having found no error in the prosecutor's closing
argument, we need not address the defendant's additional claim
of cumulative error. DB35-36.

4 The panelists are listed in order of seniority.

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