Commonwealth v. Jeffrey Fleury.

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-111

COMMONWEALTH

vs.

JEFFREY FLEURY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Superior Court, a jury convicted the

defendant, Jeffrey Fleury, of rape of a child aggravated by more

than a five year age difference1 and witness intimidation.2 The

defendant appeals, arguing the judge erred in denying the

defendant's required finding of not guilty because the evidence

did not establish the elements of the crimes. In addition, the

defendant argues that the Commonwealth's closing argument

improperly referenced facts not in evidence, exploited excluded

evidence, and impermissibly encouraged the jury to speculate,

resulting in a substantial risk of a miscarriage of justice.

1 G. L. c. 265, § 23A (a).

2 G. L. c. 268, § 13B.
Because there was sufficient evidence to support the

convictions, and no substantial risk of a miscarriage of

justice, we affirm.

Background. The jury could have found the following facts.

The victim was born in 2011. The defendant was born in 1967.

At the time of trial, the victim was eleven years of age, and

the defendant was fifty-five years of age.

Starting when the victim was five months old, she and her

brother would routinely visit their grandmother in her trailer,

where the victim's grandmother lived with her then-boyfriend,

the defendant. On multiple visits, when the victim was around

four or five years of age, the defendant brought the victim into

the bathroom and anally raped her. When the defendant was

finished raping the victim, he told her, "Don't tell anyone, and

[you'll] get a surprise."

In May 2020, when the victim was eight years of age, she

disclosed to her grandmother that the defendant had sexually

assaulted her.

Discussion. 1. Sufficiency of evidence. We review the

denial of a motion for a required finding of not guilty "to

determine 'whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.'" Commonwealth v. Tavares, 484 Mass. 650, 655

2
(2020), quoting Commonwealth v. Cole, 473 Mass. 317, 334 (2015).

"The relevant question is whether the evidence would permit a

jury to find guilt, not whether the evidence requires such a

finding." Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

a. Rape of a child. The defendant argues the Commonwealth

did not meet its burden of proof in proving the rape of a child

charges, claiming that the victim's testimony was inconsistent

and speculative concerning details of the rapes. Specifically,

the defendant asserts that because the victim testified that she

had no memory of visiting the trailer after her family moved to

Michigan in August 2015, the abuse could have only taken place

between July 1, 2015, and August 31, 2015.3 The defendant

further claims a number of details in the victim's testimony

cast doubt on her allegations, including the height discrepancy

between the defendant and the victim, the absence of complaints

of pain or physical evidence of rape from the victim in the

aftermath of the abuse, and some conjecture in her testimony

around the details of the abuse. We are not persuaded.

Alleged inconsistencies in a witness's testimony "go to

their credibility and do not affect the sufficiency of the

evidence." Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).

"Once sufficient evidence is presented to warrant submission of

3 The indictments charged that the offenses took place on
various dates from July 1, 2015, to October 31, 2017.

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the charges to the jury, it is for the jury alone to determine

what weight will be accorded to the evidence" (citation

omitted). Id.

Here, the victim testified that, "[m]ore than once," the

defendant "put his pee pee into [her] butt" when she was "around

four [years old]." Based on this testimony, and even in the

absence of physical evidence, we conclude that a rational jury

could have found the essential elements of the crime of rape of

a child aggravated by a five year age difference beyond a

reasonable doubt.4 See Commonwealth v. Alvarez, 480 Mass. 299,

310 n.4 (2018) ("The uncorroborated testimony of a child is

sufficient to support a conviction of sexual assault");

Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021)

(in sexual assault case with no witnesses, physical evidence, or

forensic evidence, "[victim's] testimony, which the jury found

to be credible, was sufficient, standing alone, to support a

finding beyond a reasonable doubt").

b. Witness intimidation. The version of the witness

intimidation statute in effect at the time of the offense, G. L.

4 The elements of rape of a child aggravated by a five year
age difference are (1) the defendant had sexual intercourse or
unnatural sexual intercourse (2) with a victim under twelve
years of age, and (3) there existed more than a five year age
difference between the defendant and the victim. See G. L.
c. 265, § 23A (a).

4
c. 268, § 13B, as amended through St. 2010, c. 256, § 120,

provided, in relevant part, the following:

"Whoever, directly or indirectly, willfully . . . conveys a
gift, offer or promise of anything of value to . . .
another person who is . . . a witness or potential witness
. . . with the intent to impede, obstruct, delay, harm,
punish or otherwise interfere thereby, or do so with
reckless disregard, with such a proceeding shall be
punished."

The defendant argues the Commonwealth did not present sufficient

evidence to support a conviction on this charge, contending that

a promise of an unspecified surprise is not a promise of

something "of value."5 See Commonwealth v. Cruz, 442 Mass. 299,

309 (2004) ("An essential element of [§ 13B] is the offer of a

bribe or the use of intimidation, force, or the threat of

force"). We disagree.

"[T]he word 'value' . . . may refer to things (tangible or

intangible) that are of significance, desirability, or

importance to the witness." Bellard, 494 Mass. at 449-450.

Further, the "thing" promised need not actually be delivered;

5 The Commonwealth was not required to demonstrate that the
defendant intimidated the victim in order to support the witness
intimidation conviction, as the defendant argues, because "the
witness intimidation statute . . . prohibits more than acts of
intimidation, threats, or violence against witnesses."
Commonwealth v. Bellard, 494 Mass. 446, 448 (2024). Relevant to
this case, the statute also prohibits bribery with the intent to
obstruct or delay a criminal investigation or proceeding. See
Commonwealth v. Hamilton, 459 Mass. 422, 434 (2011).

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rather, a defendant must simply have "some conceivable ability

to deliver." Id. at 454.

Here, the defendant promised the victim "Don't tell anyone,

and [you'll] get a surprise." The "surprise" promised by the

defendant to the victim, while not descriptive, references a

specific tangible "thing" that the victim, as a four year old

girl, could have reasonably viewed subjectively as valuable.

See Bellard, 494 Mass. at 449-450. The defendant also had ample

opportunity to deliver the "surprise" to the victim, as he lived

with the victim's grandmother and saw the victim often. See id.

at 454. Thus, where the defendant made a promise of a

"surprise" to the victim that she, as a four year old child,

viewed as valuable and imminent, and he did so hoping to prevent

the victim from exposing his abuse of her, a rational jury could

have found the defendant guilty of witness intimidation.6 See

Commonwealth v. Fragata, 480 Mass. 121, 126 (2018) ("It is

enough that the jury reasonably conclude from the surrounding

circumstances that it was likely that the victim would furnish

to an official investigating authority information pertaining to

6 Further, according to the victim's testimony, the promise
of the "surprise" delayed her reporting of the sexual abuse.
When asked why she didn't tell anyone about the abuse "for a
while," the victim replied, "I thought it was okay . . . [a]nd I
guess I just wanted a surprise."

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the crime and that the defendant intended to discourage such

communication" [citation omitted]).

2. Closing argument. The defendant next argues that the

Commonwealth erred in its closing argument by referring to facts

not in evidence, exploiting excluded evidence, and improperly

encouraging jurors to speculate. When evaluating error in a

prosecutor's closing argument, we must consider "(1) whether the

defendant seasonably objected; (2) whether the error was limited

to collateral issues or went to the heart of the case; (3) what

specific or general instructions the judge gave the jury which

may have mitigated the mistake; and (4) whether the error, in

the circumstances, possibly made a difference in the jury's

conclusions." Commonwealth v. Kater, 432 Mass. 404, 422-423

(2000). "Because there was no objection to the admission of the

challenged remarks, we review the defendant's claim[s] under the

substantial risk of a miscarriage of justice standard."

Commonwealth v. Rivera, 97 Mass. App. Ct. 285, 289 (2020).

a. Facts not in evidence. First, the defendant asserts

that in its closing, the Commonwealth impermissibly referred to

the victim's Sexual Abuse Intervention Network (SAIN) Zoom

interview, which was not in evidence. In its closing, the

Commonwealth stated, "It was defense counsel that was

misunderstanding what [the victim] had said in her Zoom

interview; versus standing on the side of the toilet versus

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standing facing the toilet. [The victim] never said during her

Zoom interview that she faced the front of the toilet."

The Commonwealth's reference to the Zoom interview, which

was not in evidence, did not amount to a substantial risk of a

miscarriage of justice. The defendant's counsel was the first

to refer to the victim's Zoom interview with specificity, and

did so extensively both on cross examination of the victim and

during her closing argument.7 In her closing, the defendant's

counsel relied on the Zoom interview to argue that the victim's

testimony was inconsistent as to her body position while the

defendant raped her, and to refute an essential element of the

witness intimidation charge where the victim stated, "I don't

remember that [the defendant] promised me anything." The

Commonwealth was entitled to respond to the defendant's

arguments, and any reference to the Zoom interview in the

Commonwealth's closing was done only to acknowledge, and

subsequently refute, the defendant's closing statement. See

Commonwealth v. Bresilla, 470 Mass. 422, 438 (2015) ("The

prosecutor was entitled to offer a response to defense counsel's

closing argument . . ."); Commonwealth v. Bradshaw, 385 Mass.

244, 277 (1982) (prosecutor has right of retaliatory reply to

correct "an erroneous impression created by opposing counsel"

7 The Commonwealth, in response, asked the victim about the
Zoom interview on redirect examination.

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[citation omitted]). Further, the information the defendant

argues the Commonwealth improperly referenced was not new to the

jury; the victim stated multiple times during her testimony that

she was on the side of the toilet and facing the toilet when the

rapes occurred. Thus, even if the Commonwealth's reference to

the interview was an error, we do not have "serious doubt

whether the result of the trial might have been different had

the [reference] not been made." Commonwealth v. Silvelo, 96

Mass. App. Ct. 85, 91 (2019), quoting Commonwealth v. Dirgo, 474

Mass. 1012, 1016 (2016).

b. Excluded evidence. Second, the defendant asserts that

the Commonwealth improperly exploited excluded evidence in its

closing. In its closing, the Commonwealth stated,

"[w]hile the evidence shows that [the victim's grandmother]
was upset and angry at the defendant immediately after
being kicked out of the trailer in October of 2017, there
is no evidence that her anger lasted beyond late 2017, let
alone two and a half years later into May of 2020 or five
years later to today."

Specifically, where the Commonwealth claims that there was no

evidence the victim's grandmother's anger lasted beyond late

2017, the defendant claims it exploited excluded evidence

including a small claims suit the victim's grandmother filed

against the defendant in November 2017 and testimony that the

victim's grandmother threatened to hurt the defendant with a

knife. We are not persuaded. The small claims suit was brought

9
in November 2017. The knife threat occurred around the same

time that the victim's grandmother was arrested for assault and

battery and had a restraining order issued against her by the

defendant; both of these events occurred in late 2017 as well.

Therefore, the Commonwealth's statement was an accurate

representation of the evidence and did not reference, or

improperly exploit, excluded evidence. Contrast Commonwealth v.

Harris, 443 Mass. 714, 732-733 (2005) (substantial risk of

miscarriage of justice where Commonwealth requested prior acts

evidence showing complainant was sex worker be excluded and then

argued absence of such evidence allowed inference that

complainant was not sex worker).

c. Improper jury speculation. The defendant argues that

the Commonwealth impermissibly encouraged the jury to speculate.

Specifically, he argues that because the victim did not recall

the exact dates of the abuse, the Commonwealth's statement that

"the defendant had plenty of opportunities to sexually abuse

[the victim] during her visits to the trailer" is not a

reasonable inference from the evidence.

The Commonwealth's statement did not create a substantial

risk of a miscarriage of justice because the Commonwealth was

not required to prove the exact date the offenses occurred. See

G. L. c. 265, § 23A (a). See also Commonwealth v. Clarke, 48

Mass. App. Ct. 482, 489 (2000) ("the date and time of the

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offense are not elements of the crime of aggravated rape"). The

argument was properly grounded in the evidence, as the victim's

mother recalled what the victim herself had forgotten,

testifying to their family's visits from Michigan to

Massachusetts and the dates of those visits. See Brandt v.

Davis, 98 Mass. App. Ct. 734, 739 (2020) ("failure of memory

. . . does not directly contradict [another’s] affirmative

recollection"). Finally, even assuming arguendo that the

Commonwealth's statement impermissibly prompted the jury to

speculate as to the nature of the evidence, the judge's numerous

instructions to the jury that arguments of counsel are not

evidence eliminated any substantial risk of a miscarriage of

justice. See Kater, 432 Mass. at 423.

Judgments affirmed.

By the Court (Henry, Smyth &
Toone, JJ.8),

Clerk

Entered: July 18, 2025.

8 The panelists are listed in order of seniority.

11