Commonwealth v. Christian M. Reyes.

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-382

COMMONWEALTH

vs.

CHRISTIAN M. REYES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant, Christian M.

Reyes, of rape of a child (occurring in Scituate), dissemination

of material depicting a child in a state of nudity (two counts),

possession of material depicting a child engaged in sexual

conduct (two counts), posing or exhibiting a child engaged in

sexual conduct (two counts), and furnishing alcohol to a minor.

Claiming deficiencies in the grand jury presentation as well as

errors at trial, the defendant appeals. We affirm.

1. Grand Jury. Challenging the denial of a pretrial

motion to dismiss, the defendant claims that the Commonwealth

presented "distorted" and "insufficient" evidence to the grand

jury. Applying de novo review, see Commonwealth v. Barlow-
Tucker, 493 Mass. 197, 204 (2024), we conclude that the motion

judge did not err.

a. Integrity of Grand Jury Presentation. The defendant

has not met his "heavy burden" to show the prosecutor impaired

the integrity of the grand jury presentation. Commonwealth v.

Stevenson, 474 Mass. 372, 376 (2016). He posits that the

prosecutor misled grand jurors to believe that the victim was

less than sixteen years old in two video recordings depicting

sexual acts with the defendant. Evidence before the grand jury

consisted of testimony from an investigating police officer and

four exhibits (including a video recording of the victim and the

defendant in the woods in Scituate, a video recording of the

victim and the defendant in a car in Duxbury, photographs from

the victim's cell phone, and the defendant's statement to the

police). Testimony showed that the victim reported to a school

resource police officer that when she was fifteen the defendant

had sex with her "at least twice." One of those incidents

occurred in the woods in Scituate where the defendant made a

video recording. This Scituate incident formed the basis for

the defendant's indictment and conviction for rape of a child.

Testimony also showed that the defendant had sex "multiple

times" with the victim in his car, where he recorded one of

those incidents while they were in Duxbury. The officer further

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testified that at the time of "the incident in the woods, and

one of the incidents in the car, [the victim] is the age of 15."

From this testimony, we discern no "false or deceptive" evidence

being presented to the grand jury. Commonwealth v. Mayfield,

398 Mass. 615, 621 (1986). The police officer's testimony made

clear that there were multiple incidents, at least two occurred

when the victim was fifteen years old, many occurred in the

defendant's car, the victim was fifteen during the recorded

incident in the woods in Scituate, and the victim was fifteen

during one of the incidents in the defendant's car.

This evidence did not impair the grand jury presentation

simply because more detailed evidence emerged at trial showing

that the Duxbury video recording was made after the victim

turned sixteen. See Commonwealth v. Hall, 485 Mass. 145, 158-

159 (2020) (integrity of grand jury unimpaired though grand jury

witness testified that cell tower data could pinpoint

defendant's location, but trial expert testified data could not

provide exact location). Had the police officer here

"specifically clarified" that the Duxbury video recording

depicted the victim at the age of sixteen, "there is no

likelihood that the grand jury would not have indicted the

defendant" for rape of a child given evidence that the victim

was under the age of sixteen during "at least" two incidents,

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one of which was memorialized by a video recording taken in

Scituate. Id. at 159.

Even if the grand jury testimony could have been more

precise as to the victim's age in the Duxbury video recording,

the defendant has not shown that any possible uncertainty

influenced the decision to indict. See Commonwealth v.

Levesque, 436 Mass. 443, 456 (2002) (grand jury integrity

unimpaired though "presentation of the evidence was not entirely

clear"); Commonwealth v. Drumgold, 423 Mass. 230, 238, (1996)

(grand jury integrity unimpaired though "[t]here was

disagreement among the witnesses as to whether there were two

shooters or three and there was no unanimity with respect to the

clothes the shooters were wearing"); Commonwealth v. Reyes, 98

Mass. App. Ct. 797, 806 (2020) (grand jury integrity unimpaired

though "ambiguity" in evidence).

We likewise discern no impropriety from additional grand

jury testimony related to evidence obtained from cell phones.

The defendant contends that the prosecutor misled grand jurors

to believe that the police extracted incriminating video

recordings from the defendant's cell phone and conducted a

forensic analysis of the victim's cell phone. We disagree.

Testimony before the grand jury showed that, through a "forensic

analysis" of the defendant's cell phone, investigators extracted

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video recordings. The officer testified that "[t]here was also

phone evidence taken from [the victim's] phone" (without

explanation as to the method used to obtain the video

recordings) and "screen shots" that the victim provided. Even

if the forensic analysis of the defendant's cell phone did not

yield incriminating evidence, as the defendant maintains,

additional testimony showed that the defendant "took" the

Scituate video recording and "sent" it to the victim, and he

sent her a sexually explicit photograph in connection with the

Duxbury video recording. Thus, we discern no impropriety.

We also discern no impairment of the grand jury proceeding

through testimony about a partially recovered text message

exchanged between the defendant and the victim that included the

number "15." During her grand jury testimony, the police

officer stated that the number in the text message "alludes to

the idea that [the victim] was 15." We need not decide whether

such testimony was warranted because even if the officer

overstated the content of the text message, the testimony did

not impair the grand jury proceeding. As previously discussed,

other evidence established that the victim was fifteen during at

least two incidents. Also, the defendant's knowledge of the

victim's age was not required to establish liability for rape of

a child. See Commonwealth v. Miller, 385 Mass. 521, 522 (1982)

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(rape of child "may be committed with or without any knowledge

on the defendant's part of the age of the victim"). Grand

jurors also had the chance to examine the defendant's statement

to the police where he initially denied knowing the victim,

having sex with her, or knowing she was under sixteen, but

ultimately admitted having sex with her and speaking with her

for the last time during a prepandemic period -- a time during

which the victim was still fifteen.

b. Sufficiency of Grand Jury Evidence. The decision of

the grand jury to return an indictment "is enough to call for

trial of the charge[s] on the merits." Costello v. United

States, 350 U.S. 359, 363 (1956). Courts "will not inquire into

the competency or sufficiency of the evidence before the grand

jury," Commonwealth v. Galvin, 323 Mass. 205, 211-12 (1948),

unless the grand jury abdicates its constitutional role and

returns an indictment without receiving "any evidence of

criminal activity by the defendant" (emphasis added),

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1983). A "grand

jury must hear sufficient evidence to establish the identity of

the accused" as well as "probable cause to arrest." Id.

Judicial review of the grand jury's determination is limited to

considering the evidence presented "in the light most favorable

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to the Commonwealth." Commonwealth v. Truong Vo Tam, 49 Mass.

App. Ct. 31, 31 (2000).

We reject the defendant's various claims challenging the

evidence presented to the grand jury. The defendant repeatedly

criticizes the motion judge's reasoning, but our review is de

novo without deference to the judge's rationale. See Barlow-

Tucker, 493 Mass. at 204. We also do not weigh the evidence or

entertain possible competing inferences suggested by the

defendant. See Truong Vo Tam, 49 Mass. App. Ct. at 31.

Furthermore, evidence before the grand jury is not insufficient

or untrustworthy merely because some testimony may be

inadmissible at trial or vulnerable to cross-examination. See

McCarthy, 385 Mass. at 162 ("indictment may be based solely on

hearsay"); Galvin, 323 Mass. at 211-212 (1948) (courts do not

inquire into competency of evidence before grand jury); Mass. G.

Evid. § 1101(c)(2) (2025) (apart from sections on privileges,

guide to evidence does not apply to "[p]roceedings before grand

juries"). "Because the grand jury does not finally adjudicate

guilt or innocence, it has traditionally been allowed to pursue

its investigative and accusatorial functions unimpeded by the

evidentiary and procedural restrictions applicable to a criminal

trial." United States v. Calandra, 414 U.S. 338, 349 (1974).

Evidence before the grand jury here established that the victim

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informed the police that the defendant provided alcohol to her

when she was under twenty-one, had sexual intercourse with her

in the woods of Scituate when she was fifteen, posed or

exhibited her engaged in sexual conduct in Scituate and Duxbury

when she was under eighteen, possessed images depicting their

sexual conduct in Scituate and Duxbury when she was under

eighteen, and disseminated images depicting her in a state of

nudity when she was under the age of eighteen. Viewed in a

light most favorable to the Commonwealth, this evidence, even if

based on hearsay, established probable cause for the indictments

at issue. See Calandra, 414 U.S. at 344-345 ("grand jury's

sources of information are widely drawn, and the validity of an

indictment is not affected by the character of the evidence

considered").

2. Trial. a. Sufficiency of Evidence. We disagree with

the defendant's contention that the Commonwealth failed at trial

to present sufficient evidence of rape of a child and possession

and dissemination of the video recordings. Viewing the evidence

in a light most favorable to the Commonwealth, "[a]ny rational

trier of fact could have found the essential elements of the

crime[s] beyond a reasonable doubt" (citation omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

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Contrary to the defendant's claim, jurors could conclude

from the evidence that the victim was under the age of sixteen

when she and the defendant had sexual intercourse. See G. L.

c. 265, § 23 (prohibiting sexual intercourse with child under

the age of sixteen). The victim so testified, repeatedly on

direct and cross-examination, that they first had sex when she

was "[f]ifteen," and had sex "at least once before I turned 16."

To establish her age at the time of the event, nothing more than

the victim's testimony was required to survive a motion for a

required finding of not guilty. See Commonwealth v. Santos, 100

Mass. App. Ct. 1, 3 (2021) ("sworn testimony of the victim of a

sexual assault, including rape, is evidence of the facts

asserted" and standing alone suffices to support conviction).

Because this evidence must be viewed in a light most favorable

to the Commonwealth, notwithstanding the absence of

corroborating evidence or the presence of conflicting evidence,

the judge properly denied the motion for a required finding of

not guilty.

Evidence also contradicts the defendant's claim that he

neither possessed nor disseminated the two video recordings

(created in Scituate and Duxbury) depicting nudity and sex with

the victim. Because the victim testified that the defendant

"sent" the Scituate video recording to her, sent the "videos" to

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her, and "record[ed]" the Duxbury video recording, jurors could

logically conclude that the defendant possessed and disseminated

the material depicted in the video recordings. See G. L.

c. 272, § 29B (a) (prohibiting dissemination of material

depicting child under eighteen in state of nudity); G. L.

c. 272, § 29C (vii) (prohibiting possession of material

depicting child under eighteen engaging in sexual conduct). The

defendant argues that because the victim testified that she was

"not positive" whether the Duxbury video recording was made with

the defendant's cell phone or her cell phone, he was entitled to

a required finding of not guilty on charges related to that

video recording. We disagree. The device used to make the

recording is not determinative. Assuming the defendant borrowed

the victim's cell phone to create the Duxbury video recording,

jurors could reasonably infer that he possessed the Duxbury

video recording and disseminated it to her by returning her cell

phone. Thus, whether he created the Duxbury recording on his

own cell phone and sent it to her electronically or created the

Duxbury video recording on the victim's cell phone and gave the

cell phone to her, the defendant both possessed and disseminated

the contents of the cell phone.

b. Closing argument. Although the defendant objected to

only one phrase in the prosecutor's closing argument, he now

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raises four claims on appeal. None of these claims evince an

error that merits relief.

The prosecutor argued that the defendant and the victim

"had sex pretty much right off the bat." Noting the defendant's

objection, the judge concluded, "I do think there is some basis

to infer that [sex] was early" in their relationship. Given the

timeline of their relationship, this argument was fair. They

met in the summer and first had sex sometime before her

sixteenth birthday in the middle of August. Thus, they

necessarily started a sexual relationship within weeks (June

through the middle of August) of meeting, which could arguably

be considered "pretty much right off the bat" as the prosecutor

put it. Especially given the judge's instruction that arguments

are not evidence, and the ability of jurors to evaluate the

timeline for themselves, we discern no error and no prejudice.

See Commonwealth v. Chism, 495 Mass. 358, 401 (2025) (review for

prejudicial error where objection raised to closing argument).

As to the remaining claims, raised for the first time, the

prosecutor's arguments did not amount to an error creating a

"substantial risk of a miscarriage of justice." Commonwealth v.

Freeman, 352 Mass. 556, 564 (1967). In his brief, the defendant

claimed the prosecutor falsely said, "he finally admits it [in

his statement]" but the prosecutor actually said, "Listen to how

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he finally admits it. Kind of like I had sex with her once,"

and encouraged jurors to watch the video recording of his

statement and trace the denials evolving into an admission. He

next contends that the prosecutor misstated the evidence by

saying that the defendant "sent" the video recordings to the

victim, but evidence showed that the defendant disseminated the

video recordings either by creating them on his cell phone and

sending video recordings to the victim's cell phone or by

borrowing the victim's cell phone to create the video recordings

and returning the cell phone to her. Finally, the defendant

claims that the prosecutor misstated the evidence by saying that

the defendant "keeps reaching out, and . . . makes her feel

overwhelmed to finally" talk to a counselor, but the evidence

showed that on cross-examination the victim testified, "That's

why I had wanted to talk to my counselor because I was just kind

of overwhelmed, and I wanted him to stop reaching out to me."

Bearing in mind that "[a] prosecutor's argument may be based not

only on the evidence, but also on the fair inferences to be

drawn from it," Commonwealth v. Phillips, 495 Mass. 491, 502

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(2025), we discern no error. That alternative arguments may be

made does not render the arguments improper.

Judgments affirmed.

By the Court (Meade, Walsh &
Hodgens, JJ.1),

Clerk

Entered: September 26, 2025.

1 The panelists are listed in order of seniority.

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