Commonwealth v. Jorge A. Castillo.

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-341

COMMONWEALTH

vs.

JORGE A. CASTILLO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Jorge A. Castillo, was convicted of five counts of

indecent assault and battery on a child under fourteen, in

violation of G. L. c. 265, § 13B, and intimidation of a witness,

in violation of G. L. c. 268, § 13B.1 On appeal, the defendant

claims that the judge abused his discretion by permitting the

victim to testify that the defendant had abused her on multiple

1The defendant was acquitted on one additional charge of
indecent assault and battery on a child under fourteen. The
defendant was also charged with two counts of aggravated rape
and abuse of a child, in violation of G. L. c. 265, § 23A (a),
and one count of open and gross behavior in violation of G. L.
c. 272, § 16. The jury could not reach a verdict as to those
charges, and the judge declared a mistrial as to each of them.
After the defendant was convicted and sentenced, the
Commonwealth filed a nolle prosequi as to those charges.
prior occasions, and that the prosecutor's closing argument

exceeded the bounds of proper argument. We affirm.

Background. We summarize the facts the jury could have

found and reserve certain details for later discussion. From

2013 to 2015, the defendant's girlfriend babysat for her aunt's

children, the two victims whom we shall call J.S. and C.S., once

or twice a week at the home she shared with the defendant. J.S.

was between ten and twelve years old during this time, and C.S.

was between eleven and thirteen.

On one occasion, J.S. was at the defendant's home when she

came in from playing outside to get something from the kitchen.

While she stood at the refrigerator, the defendant came up from

behind her and touched her vaginal area over her clothing. J.S.

said she should go back outside, and the defendant told her not

to tell anyone in her family. J.S. agreed and walked out. On

three other occasions, the defendant sexually assaulted J.S.

when they were alone in the master bedroom of the home. Once,

the defendant touched J.S.'s breasts while forcing his penis

into her mouth while she sat on a "baby bed." On another

occasion, the defendant sat down on his bed and put his penis in

J.S.'s mouth. And another time, J.S. stood next to the

defendant as he made her touch his penis before he masturbated

next to her. Each time J.S. left the bedroom, the defendant

told her not to tell anyone in her family.

2
During the same time period, J.S. accompanied the defendant

when he drove to pick up his son from soccer practice. On the

way, the defendant pulled the car into a parking lot, parked,

and, while she sat in the passenger seat, touched J.S.'s vagina

and forced her to touch his penis. Again, the defendant told

J.S. not to tell anyone.

At some point, J.S. told her younger sister, C.S., how the

defendant had touched her, and the two agreed that they would

not leave each other alone with the defendant going forward.2 A

few years later, when she was fifteen, J.S. told her mother and

father and asked them not to inform the police about the abuse,

and they agreed not to do so.

Two years later, when J.S. was seventeen, she reported the

abuse to the police herself. This disclosure followed a party

at J.S.'s parents' home, where a guest's dog bit the defendant's

daughter. The defendant was not at the party, but after

learning what happened, he drove to J.S.'s parents' home and

told them that he was going to call the police. An argument

ensued, and as noted, J.S. told the police about the defendant's

conduct. Thereafter, the defendant consented to an interview

2 C.S. also testified that while she was alone with the
defendant in the living room of the home, the defendant touched
her breasts. For this incident, the defendant was charged with
indecent assault and battery on a child under fourteen, in
violation of G. L. c. 265 § 13B, but the jury found him not
guilty. See note 1, supra.

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which occurred at the Amherst police department. The defendant

denied any wrongdoing but acknowledged that he would play

outside with J.S. and C.S., and "grab" or "spin" them.

Discussion. 1. Uncharged prior bad acts. The defendant

contends that the judge abused his discretion by allowing the

Commonwealth to solicit testimony from J.S. that the defendant

sexually assaulted her on several other occasions. We are not

persuaded that the evidence at issue unduly prejudiced the

defendant and further conclude that the testimony did not, as

the defendant claims, amount to improper character evidence.

Prior to trial, the prosecutor filed a motion in limine

seeking to introduce testimony that the defendant sexually

assaulted J.S. on fifteen to twenty additional occasions. The

defendant opposed the motion, and, after a hearing, the judge

initially reserved ruling pending the start of trial, at which

time, he allowed the Commonwealth's motion to admit J.S.'s

testimony. He reasoned that since the uncharged acts were not

too remote in time and were between the same parties, the

evidence was relevant to show the defendant's intent and the

relationship between the parties. The defense requested, and

the judge gave, instructions limiting the jury's consideration

of this evidence both at the time J.S. testified about the prior

acts of sexual abuse and in the judge's final instructions to

the jury.

4
"It is well settled that the prosecution may not introduce

evidence that a defendant previously has misbehaved . . . for

the purposes of showing his bad character or propensity to

commit the crime charged" (citation omitted). Commonwealth v.

Morgan, 460 Mass. 277, 289 (2011). See Mass. G. Evid. § 404(b)

(2021). However, the prosecution may introduce that same

evidence for other valid reasons, including to show intent or

the relationship between the parties, so long as its probative

value is not outweighed by the danger of unfair prejudice. See

Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998).

The defendant argues that J.S.'s testimony was marginally

probative as it did not have "specifics attached to it." This

argument is not availing. Trial judges are encouraged to limit

prior bad act testimony to establishing in "summary fashion" any

uncharged evidence of abuse. Commonwealth v. Dwyer, 448 Mass.

122, 130 (2006). In addition, "[t]he case law is particularly

clear that evidence of uncharged sexual misconduct, when not too

remote in time, 'is competent to prove an inclination to commit

the [acts] charged . . . and is relevant to show the probable

existence of the same passion or emotion at the time in issue.'"

Hanlon, Mass. App. Ct. at 817, quoting Commonwealth v. King, 387

Mass. 464, 470 (1982). Here, the evidence was particularly

relevant on the question of the defendant's intent in light of

the defendant's statements to police that any physical contact

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with J.S. was incidental to him playing with, or "spin[ning],"

J.S. outside.

The defendant also claims that, even if the testimony was

relevant, its probative value was outweighed by its potential

for prejudice. We disagree. "Evidence is unfairly prejudicial

only if it has an undue tendency to suggest decision on an

improper basis . . . [including] an emotional one."

Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 403 (2022)

(quotation and citation omitted). Here, the judge gave a

limiting instruction after J.S.'s testimony and again at the

close of trial, "thereby minimizing any prejudicial effect."3

Commonwealth v. Forte, 469 Mass. 469, 480 (2014). In addition,

the jury was unable to reach a verdict on three separate

offenses and "acquitted the defendant of [one] offense[],

'demonstrat[ing] a careful consideration of the evidence.'"

Foreman, supra, quoting Commonwealth v. Dorazio, 472 Mass. 535,

543 (2015). Given these circumstances, we conclude that the

probative value of J.S.'s testimony was not outweighed by any

prejudicial effect.

2. The prosecutor's closing argument. Next, the defendant

contends that the prosecutor's description of the home where the

3 "We presume that the jury followed the judge's
instructions." Commonwealth v. Henley, 488 Mass. 95, 125
(2021).

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defendant sexually assaulted J.S. as a "house of horrors," was

improper and "undeniabl[y] . . . impact[ed] the jury's verdict."

Because the defendant did not object at trial, we review to

determine whether any error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Desiderio, 491

Mass. 809, 815 (2023). The standard calls for "us to determine

'if we have a serious doubt whether the result of the trial

might have been different had the error not been made'"

(citation omitted).4 Id. at 815-816. Taken in context, the

comment at issue amounted to a permissible comment about the

extent to which the defendant's sexual abuse impacted the time

J.S. was at the home. See Commonwealth v. Phillips, 495 Mass.

491, 499 (2025) ("describing the shooting as a 'monstrous crime'

did not cross the line between fair and improper argument");

Commonwealth v. Alemany, 488 Mass. 499, 512 (2021) (description

of alleged crimes as "part of a 'horror story'" not improper).

The jury heard evidence of the defendant sexually assaulting

J.S. and C.S. in his home over the course of two years.

Describing that home as a "house of horrors" was inherent to

"'the odious . . . nature of the crime[s]' [themselves]."

Phillips, supra, quoting Commonwealth v. Lyons, 426 Mass. 466,

4 We also note that the absence of an objection from trial
counsel is some indication that, in context, the prosecutor's
words were more innocuous than now argued. See Commonwealth v.
Mello, 420 Mass. 375, 380 (1995).

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472 (1998). Moreover, the judge instructed the jurors twice

that closing arguments are not evidence, mitigating the risk of

any prejudice to the defendant. See Commonwealth v. Santana,

477 Mass. 610, 628 (2017). While the comment was better left

unsaid, we are not persuaded it goes beyond "tolerable

hyperbole."5 Commonwealth v. Pearce, 427 Mass. 642, 645 (1998),

quoting Commonwealth v. Hartford, 425 Mass. 378, 381 (1997).

Judgments affirmed.

By the Court (Vuono,
Desmond & Toone, JJ.6),

Clerk

Entered: November 20, 2025.

5 We have long warned the Commonwealth and its prosecutors
to abide by their "stricter standard of conduct" when making
closing arguments. Commonwealth v. Kozec, 399 Mass. 514, 519
(1987). We do not condone the prosecutor's comment. We hold
only that it did not create a substantial risk of a miscarriage
of justice.

6 The panelists are listed in order of seniority.

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