Commonwealth v. Joseph Rodriguez.

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-508

COMMONWEALTH

vs.

JOSEPH RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A grand jury indicted the defendant, Joseph Rodriguez, on

twenty-one charges of rape, assault and battery, strangulation

or suffocation, threats, and various other crimes arising from

separate incidents involving two unrelated female victims, A.H.

and B.G.1 The eight indictments relating to B.G. were tried

separately to a jury, resulting in seven guilty verdicts -- for

rape, assault with intent to commit rape, strangulation or

suffocation, assault and battery by means of a dangerous weapon,

1The crimes charged in indictments 1 through 11, involving
A.H., all occurred on August 25, 2020. The crimes charged in
indictments 20 and 21 occurred on the same day; A.H.'s boyfriend
was the victim. The crimes charged in indictments 12 through
19, involving B.G., occurred four days later, on August 29,
2020.
assault and battery (two charges), and threats -- and acquittal

on one indictment charging assault and battery. The defendant

appeals from the seven judgments of conviction,2 arguing that the

trial judge abused his discretion by allowing the Commonwealth

to present prior bad act evidence through A.H. We affirm.

1. Background. a. Procedural history. After

arraignment, the defendant moved for relief from prejudicial

joinder and a motion judge severed the eight indictments

relating to B.G. from the other thirteen indictments. The

Commonwealth elected to try the indictments involving B.G.

first. The Commonwealth filed a motion in limine to introduce

evidence of the defendant's prior bad acts through the testimony

of A.H. and C.B., another alleged victim. The Commonwealth

argued that the testimony of the two prior victims should be

allowed because it was probative of the defendant's motive,

criminal intent, and pattern of conduct, and of the victim's

lack of consent. The defendant opposed the motion, arguing that

the testimony was more prejudicial than probative and that its

admission would negate any chance of him receiving a fair trial,

which was precisely the reason the motion judge had allowed the

defendant's motion to sever. In a written decision, the trial

2 Indictments 1 through 11, 20, and 21 were resolved by
guilty pleas several months after the trial on indictments 12
through 19 and are not relevant to this appeal.

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judge, who was not the motion judge, ruled that A.H.'s testimony

was admissible because it was close in time, probative of a

common course of conduct by the defendant, and served to

corroborate B.G.'s testimony. The judge excluded C.B.'s

testimony, however, as "too remote in time" and "lack[ing]

sufficient similar facts."

b. The charged conduct. B.G. knew the defendant from high

school. They never dated, but she did have a crush on him. The

two lost touch but reconnected over social media in 2020 while

the defendant was living in Missouri. In the summer of 2020,

the defendant sent B.G. a text message telling her that he was

in Taunton, and they made plans to see each other in August.

The first time they met they went to B.G.'s house, smoked

marijuana, and reminisced about high school. Two days later

they met again and ran errands. The defendant gave her a book

on Tarot cards and they went back to her house where they had

"typical sexual intercourse." A few days later they met for a

third time. They picked up food and alcohol then went back to

B.G.'s house where they watched television. The defendant drank

an entire bottle of liquor. B.G. had a few sips but preferred

to smoke marijuana. Eventually, they went into her bedroom and

"were kind of just fooling around" but did not have sexual

intercourse. The defendant began getting rough with B.G. and

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called her a pig. To calm him down, she suggested they take a

shower.

While in the shower the defendant repeatedly spit on B.G.

and threatened her. When she asked him to stop, his behavior

became more aggressive. His eyes suddenly "went all black" and

"[h]e looked like the devil." He continued calling her names,

threatened to kill her, and smashed her head against the glass

shower door. She got out of the shower and he chased her into

the bedroom, pinned her on the bed, and strangled her. At some

point, he put something "long and skinny" in her anus. She

eventually blacked out. When she woke up, her television and

laundry hamper had been smashed in half and the defendant was

repeatedly threatening to kill her. At one point the defendant

fell, and B.G. was able to run to a neighbor's house and call

the police.

B.G.'s testimony was corroborated by eleven other witnesses

-- including a first complaint witness, responding and

investigating police officers, a civilian investigator, the

victim's mother, a sexual assault nurse examiner, and forensic

scientists -- as well as photographs, medical records, and

forensic test results.

c. Prior bad act evidence. A.H. testified that she and

the defendant had dated in middle school, lost touch, and then

reconnected via social media. In the summer of 2020, the

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defendant told her that he would be visiting Taunton and that he

needed a place to stay. A.H. was initially apprehensive about

letting him stay with her but eventually agreed. During the

three weeks the defendant stayed with A.H. their relationship

remained platonic, with him sleeping in the living room on a

recliner. One night -- four days before the defendant's rape

and assault of B.G. -- the defendant and A.H. were drinking

alcohol and having a casual conversation when suddenly the

defendant's "eyes changed" and "[i]t was like he wasn't there

anymore."

The defendant became violent and grabbed A.H. by her hair.

He dragged her to the bedroom, spit on her, then raped her.

During the attack, he made a derogatory comment about her

weight. At some point, the defendant stopped to look for his

phone and passed out on the floor. A.H. ran outside and called

a friend to come pick her up. When the friend declined, she

went back inside the apartment to retrieve her car keys. The

defendant, who was then awake and angry, grabbed her by the

neck, pushed her against a wall, and strangled her. He said "he

could drive [A.H.] around in the trunk of [her] car for two

weeks and nobody would know." Eventually, A.H.'s friend showed

up, and the police arrived shortly after. After she was taken

to the hospital and examined, A.H. returned home to find

everything in her apartment "flipped upside down."

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2. Discussion. The defendant argues that the trial judge

"legally did take leave of [his] senses" by admitting A.H.'s

testimony and "made it impossible for the jury to assess the

. . . relevant evidence in this case."3 We disagree.

"It is well settled that the prosecution may not introduce

evidence of a defendant's prior or subsequent bad acts for the

purpose of demonstrating bad character or propensity to commit

the crime charged." Commonwealth v. Barrett, 418 Mass. 788, 793

(1994). "Such evidence may, however, 'be admissible for another

purpose,' such as to prove 'motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.'" Commonwealth v. Peno, 485 Mass. 378, 385

(2020), quoting Mass. G. Evid. § 404(b)(2).

"[E]ven if offered for a permissible purpose, bad act

evidence nevertheless is inadmissible where 'its probative value

is outweighed by the risk of unfair prejudice to the defendant,

even if not substantially outweighed by that risk.'"

Commonwealth v. Correia, 492 Mass. 220, 228-229 (2023), quoting

3 We recognize that "[o]fficers of the court may
appropriately express criticism" of the judicial process and the
law, In re Snyder, 472 U.S. 634, 646 (1985), and that counsel
was paraphrasing case law (which has since been repudiated). We
remind counsel, however, that "[t]he necessity for civility in
the inherently contentious setting of the adversary process
suggests that members of the bar cast criticisms of the system
in a professional and civil tone." Id. at 647.

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Mass. G. Evid. § 404(b)(2). Determining relevance and weighing

probative value against the risk of undue prejudice "are left to

the sound discretion of the trial judge," Commonwealth v. West,

487 Mass. 794, 805 (2021), and the judge's decision will be

affirmed "unless the judge made a clear error of judgment in

weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). Id. at 805-806. Factors to

be considered include (1) "whether the trial judge carefully

weighed the probative value and prejudicial effect of the

evidence to be introduced"; (2) the use of limiting

instructions; (3) "whether the challenged evidence was

cumulative . . . thereby reducing the risk of any additional

prejudicial effect; and (4) whether the challenged evidence was

so similar to the charged offense that it increased the risk of

propensity reasoning by the jury" (quotation and citation

omitted). Commonwealth v. MacCormack, 491 Mass. 848, 863

(2023).

The trial judge carefully weighed the evidence. In his

memorandum of decision on the motion in limine, the judge,

quoting Barrett, 418 Mass. at 794, found that A.H.'s prior bad

act evidence was "closely related in time, place, and form of

acts to show a common course of conduct by the defendant . . .

so as to be logically probative." Although the judge did not

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specifically address his weighing of prejudice versus probative

value, his finding that the risk of unfair prejudice did not

outweigh the probative value of A.H.'s testimony was implicit in

his ruling. See Commonwealth v. Samia, 492 Mass. 135, 148

(2023), quoting Commonwealth v. Mahan, 18 Mass. App. Ct. 738,

741 n.1 (1984) (while "not the best practice," judge's failure

to conduct balancing on record "not fatal" because "[s]uch a

determination is implicit in the judge's consideration of the

tender of, and the objection to, the evidence and the judge's

ultimate decision to admit it"). The implicit weighing is

apparent in the fact that the judge denied the Commonwealth's

motion in part and excluded C.B.'s proffered testimony,

necessarily finding it to be more prejudicial than probative.

He also refused to allow the Commonwealth to put on two

additional witnesses to corroborate A.H.'s testimony, firmly

stating that "the prior bad act [evidence] ends with this

witness." "This is not a case where the judge failed to

exercise any discretion by making no effort at all to scrutinize

the contested evidence" (quotation and citation omitted). West,

487 Mass. at 807.

The judge also took care to mitigate any risk that the jury

might misuse the prior bad act evidence by providing forceful,

detailed limiting instructions. The judge gave limiting

instructions regarding the use of A.H.'s prior bad act testimony

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four separate times -- during his preliminary charge, both in

the middle of and immediately after A.H.'s testimony, and in the

final charge -- pointedly telling the jury that the evidence was

not a substitute for proof that the defendant committed the

crimes charged, that they may not consider it as proof that he

had criminal propensity or a bad character, and that they may

not use it to conclude that if he had committed the prior bad

acts he must have also committed the crimes charged. He "was

aware of this issue early in the proceedings and monitored the

development of the evidence closely," Commonwealth v. Copney,

468 Mass. 405, 414 (2014), and followed the favored practice of

giving "contemporaneous limiting instructions," Commonwealth v.

Facella, 478 Mass. 393, 402 (2017), as well as giving the

limiting instruction at the beginning and end of the trial. See

Commonwealth v. Walker, 442 Mass. 185, 202 (2004) (risk of

prejudice from prior bad act testimony "sufficiently ameliorated

by the judge's limiting instructions, given immediately after

the testimony and repeated during the final instructions").

A.H.'s testimony was somewhat cumulative of the evidence

concerning the defendant's assault on B.G., thus mitigating its

prejudicial effect. Her testimony included several elements

already in evidence concerning the assault on B.G., such as the

drastic effect that alcohol had on the defendant, his

destruction of property, and his extreme sexual violence.

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Having already heard similar evidence from B.G. and other

witnesses to her assault, the jury would not have been shocked,

or unduly prejudiced, by A.H.'s account of such conduct.

Finally, the incident A.H. described was similar to the

crimes charged involving B.G. -- A.H.'s testimony would not have

been admissible to show a pattern of conduct or be relevant to

the defendant's motive and the victim's lack of consent if it

was not. The fact that the incidents took place only four days

apart and that, in both incidents, the defendant's behavior

changed markedly after excessive drinking created a "temporal

and schematic nexus" that bore on the defendant's state of mind

and provided an explanation for his seemingly inexplicable

change in temperament. Commonwealth v. Hanlon, 44 Mass. App.

Ct. 810, 818 (1998), quoting Barrett, 418 Mass. at 794.

Likewise, the evidence suggested a pattern of conduct that

tended to refute any suggestion that B.G., who had previously

had consensual sex with the defendant, consented to the violent

sexual activity charged in the indictments. See Commonwealth v.

Pillai, 445 Mass. 175, 183 (2005), quoting Commonwealth v. King,

387 Mass. 464, 472 (1982) (evidence of similarities admissible

to corroborate victim's testimony and "render[] it not

improbable that the acts charged might have occurred"). In

sexual assault cases, similar conduct is admissible in the

judge's discretion:

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"One of the recognized exceptions invariably followed in
this Commonwealth is that, when a defendant is charged with
any form of illicit sexual intercourse, evidence of the
commission of similar crimes by the same parties though
committed in another place, if not too remote in time, is
competent to prove an inclination to commit the [acts]
charged in the indictment . . . and is relevant to show the
probable existence of the same passion or emotion at the
time in issue."

King, supra at 469-470, quoting Commonwealth v. Bemis, 242 Mass.

582, 585 (1922).

But A.H.'s testimony was not so similar that the jury would

necessarily have engaged in propensity thinking.

"Notwithstanding the defendant's contention, the prior bad act

evidence did not overwhelm the case." West, 487 Mass. at 808.

Twelve witnesses testified about the attack on B.G., while

evidence of the prior bad act was limited to the testimony of a

single witness -- and the jury were guided by repeated limiting

instructions. The judge did not abuse his discretion in

admitting A.H.'s testimony.

Judgments affirmed.

By the Court (Massing,
Hershfang & Tan, JJ.4),

Clerk

Entered: March 14, 2025.

4 The panelists are listed in order of seniority.

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