Commonwealth v. Jose Ortega.

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-1075

COMMONWEALTH

vs.

JOSE ORTEGA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was

convicted of two counts of rape of a child, G. L. c. 265, § 23,

and one count each of indecent assault and battery on a child

under fourteen, G. L. c. 265, § 13B, open and gross lewdness,

G. L. c. 272, § 16, and dissemination of matter harmful to

minors, G. L. c. 272, § 28. In this consolidated appeal from

the convictions and from the orders denying defendant's motions

for a new trial and for postconviction discovery, the defendant

argues, among other things, that the judge erred in admitting

evidence of the defendant's uncharged bad acts without giving a

limiting instruction. We agree that, absent a limiting

instruction, the bad acts evidence in question was more
prejudicial than probative and was therefore inadmissible.

Because we conclude that the omission of a limiting instruction

at trial resulted in a substantial risk of a miscarriage of

justice, we must vacate the judgments and set the verdicts

aside. Given that conclusion, we need not and do not address

the defendant's remaining challenges to the orders denying his

motions for a new trial and for postconviction discovery.

Background. The charges against the defendant stem from

allegations by the alleged victim, whom we shall call Martin,1

that the defendant sexually assaulted him between 2000 and 2006,

when he played in a youth baseball league for which the

defendant was a coach. Before trial, the Commonwealth moved to

admit evidence of contemporaneous uncharged bad acts --

testimony from Martin that he observed the defendant sexually

assaulting several other boys. In its motion in limine, the

Commonwealth argued that the evidence was admissible for three

limited purposes -- to show the defendant's motive and state of

mind, to establish the defendant's pattern of conduct, and to

present "as full and accurate a picture as possible of the

events surrounding" the defendant's abuse of Martin -- and

requested that the judge instruct the jury accordingly. The

judge allowed the motion after concluding that the evidence was

1 A pseudonym.

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admissible to show the context of the defendant's relationship

with Martin, that it was inadmissible to prove the defendant's

propensity to commit crime, and that the probative value of the

evidence was not outweighed by the risk of unfair prejudice.

At trial, Martin testified, as expected, that the defendant

had sexually assaulted him, as well as several other players in

the baseball league. On direct examination by the prosecutor,

Martin described a "routine" in which the defendant invited

Martin and up to five other boys to his home, where he showed

them pornography and encouraged them to masturbate while

sometimes doing so himself.2 In an apparent oversight, the judge

did not give the limiting instruction the Commonwealth had

originally requested; the Commonwealth did not reiterate its

earlier request for such an instruction, nor did the defendant

request one. Neither party objected to the instructions given

in the final jury charge at trial; those instructions did not

provide a limiting instruction on the bad acts evidence, either.

After the Commonwealth rested, the defendant called three

witnesses who had played in the baseball league at the same time

as Martin, including two witnesses whom Martin testified to

2 On cross-examination, defense counsel also elicited
Martin's confirmation that in the same timeframe, he saw the
defendant do "sexual things" to other boys, including touching
other boys' penises, as well as kissing and then putting his
penis in one boy's mouth.

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seeing the defendant sexually assault. The three witnesses

testified that they were never sexually assaulted by the

defendant, nor had they ever seen the defendant sexually assault

Martin or anyone else.

On May 21, 2021, the jury found the defendant guilty on

five counts, including open and gross lewdness and dissemination

of matter harmful to minors. The defendant appealed shortly

after. On June 10, 2021, the Commonwealth nol prossed the

charges for open and gross lewdness and dissemination of matter

harmful to minors.3 The defendant was sentenced to nine to

twelve years in state prison for two counts of rape of a child,

as well as to ten years of probation for indecent assault and

battery on a child.

On May 1, 2024, the defendant filed motions for a new trial

and for postconviction discovery. The judge denied both

motions, and the defendant appealed. That appeal, consolidated

with the defendant's direct appeal, is before us now.

Discussion. 1. Admissibility of bad acts evidence.

Because the error the defendant claims on appeal was not

preserved, we review for a substantial risk of a miscarriage of

justice. See Commonwealth v. Almeida, 479 Mass. 562, 568

3 The statute of limitations for those two counts had
expired before indictment. As we note infra, the Commonwealth
cannot retry the defendant on those counts.

4
(2018); Commonwealth v. Proia, 92 Mass. App. Ct. 824, 828

(2018). Thus, we must assess the case and the evidence as a

whole and ask:

"(1) Was there error? (2) Was the defendant prejudiced by
the error? (3) Considering the error in the context of the
entire trial, would it be reasonable to conclude that the
error materially influenced the verdict? (4) May we infer
from the record that counsel's failure to object or raise a
claim of error at an earlier date was not a reasonable
tactical decision?" (citations omitted).

Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

a. Error prejudicial to defendant. Evidence of a

defendant's uncharged bad acts "is not admissible to show a

defendant's bad character or propensity to commit the charged

crime, but may be admissible if relevant for other purposes such

as 'common scheme, pattern of operation, absence of accident or

mistake, identity, intent or motive.'" Commonwealth v. Dwyer,

448 Mass. 122, 128 (2006), quoting Commonwealth v. Marshall, 434

Mass. 358, 366 (2001). See Mass. G. Evid. § 404(b) (2025). "In

sexual assault cases, some evidence of uncharged conduct may be

admissible to give the jury a view of the entire relationship

between the defendant and the alleged victim . . . ." Dwyer,

supra at 128-129. "However, such evidence should not be

admitted if its probative value is outweighed by the risk of

unfair prejudice to the defendant." Commonwealth v. Nascimento-

Depina, 496 Mass. 1, 9 (2025), cert. denied, U.S. Supreme Ct.,

No. 25-5267 (Oct. 6, 2025).

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The evidence in question here was relevant to show that the

defendant built his relationship with Martin by including him in

a group treated by the defendant as "the elite players of the

league." The evidence helped the jury to understand why Martin

continued to follow the defendant's direction despite his

testimony that he did not want to do so. See Commonwealth v.

Childs, 94 Mass. App. Ct. 67, 71-72 (2018) (evidence of

defendant's past sexual abuse of child victim relevant to show

entire relationship between them and to help jury understand

victim's "actions and reactions" to defendant's conduct). We

also agree with the judge's determination that the bad acts

evidence was relevant to demonstrate a common course of conduct.

See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 (1998)

("Evidence offered for the purpose of showing a common plan or

course of conduct can be admitted where each incident is part of

an ongoing plan" if it is sufficiently connected to charged

offense). The probative value of the evidence to the

Commonwealth's case was thus substantial.

The bad acts evidence was also certainly prejudicial to the

defendant. See Commonwealth v. Barrett, 418 Mass. 788, 795

(1994) ("It is implicit in the general rule regarding the

inadmissibility of prior bad acts evidence that the admission of

such evidence carries with it a high risk of prejudice to the

defendant"). Although the evidence was central to the jury's

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understanding of Martin's testimony, it could not be used to

show the defendant's bad character or propensity to sexually

assault children, and a limiting instruction would have been an

important part of balancing probative value against prejudicial

effect. See Commonwealth v. Brusgulis, 406 Mass. 501, 506 n.7

(1990) ("the judge must weigh the probative value . . . against

the prejudice to the defendant of evidence of his prior bad

acts, and, if the judge admits the evidence, he must give proper

limiting instructions to the jury"). See also Commonwealth v.

Gomes, 475 Mass. 775, 785 (2016) (highlighting special

importance of limiting instruction where evidence of bad acts

was admissible).

The omission of a limiting instruction is particularly

significant in this case, where Martin's testimony was the

Commonwealth's primary evidence and evidence about other bad

acts comprised a significant portion of that testimony. Cf.

Nascimento-Depina, 496 Mass. at 9 (finding no abuse of

discretion where "risk of prejudice was slight given the

prosecutor's limited inquiry into the subject" and testimony

lacked detail); Commonwealth v. Pierre, 486 Mass. 418, 426

(2020) ("any risk of unfair prejudice" created by prior bad acts

evidence "was reduced by the Commonwealth's limited use of the

evidence" [emphasis added]). In this case, the risk of unfair

prejudice was not mitigated by a limiting instruction and thus

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outweighed the probative value of the evidence; the bad acts

evidence should not have been admitted without such an

instruction.4

b. Material influence on the verdict. As we have noted,

the evidence was highly prejudicial to the defendant, and we

conclude that it is likely that the extensive evidence of

contemporaneous bad acts materially influenced the verdict. Cf.

Dwyer, 448 Mass. at 128 (where victim's testimony about

uncharged bad acts "overwhelmed" evidence of charged incidents,

judge erred in admitting such testimony, even with limiting

instruction). However, analysis of this question is complicated

by the fact that trial counsel for the defendant intended to

elicit the same evidence from Martin, regardless of whether the

Commonwealth did so. See Randolph, 438 Mass. at 298 (error must

be considered "in the context of the entire trial" to determine

whether it materially influenced verdict). From the perspective

of the defendant, the contemporaneous bad acts evidence was

necessary to create a foundation to impeach Martin's credibility

with contradictory testimony from defense witnesses. Without a

limiting instruction, however, the jury was free to consider

4 With a limiting instruction, as requested in the motion in
limine, to "render potentially prejudicial evidence harmless,"
the bad acts evidence would likely have been admissible. See
Commonwealth v. Bryant, 482 Mass. 731, 737 (2019), citing
Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

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Martin's extensive testimony about the uncharged bad acts as

evidence of the defendant's bad character. Cf. Commonwealth v.

Bryant, 482 Mass. 731, 737 (2019) (noting effectiveness of

limiting instructions to limit jury consideration of bad acts

evidence). The considerable quantity of testimony about the

defendant's contemporaneous bad acts, in the absence of a

limiting instruction, could have convinced the jury of the

defendant's propensity for sexual assault. Compare Dwyer, 448

Mass. at 128-129 (overwhelming quantity of uncharged bad acts

evidence should not have been admitted, even with limiting

instruction), with Nascimento-Depina, 496 Mass. at 8-9 (in

judge's discretion to permit brief, four-question inquiry into

prior bad acts without limiting instruction when none was

requested).

c. No reasonable tactical basis. The failure to object at

trial to the lack of a limiting instruction was not a

"reasonable tactical decision" because a limiting instruction

could only have helped the defendant. Cf. Commonwealth v.

Donahue, 430 Mass. 710, 718 (2000) (presumption that juries

understand and follow limiting instructions). Martin's

testimony about other bad acts allowed the defendant to impeach

Martin with testimony from his witnesses, but a limiting

instruction would not have undercut the value of the evidence

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for that purpose.5 See, e.g., Nascimento-Depina, 496 Mass. at 8-

9 (bad acts evidence may be admitted "where it is relevant for a

nonpropensity purpose").

Thus, because the admission of the bad acts evidence sans

limiting instruction6 could have had a material effect on the

jury's verdicts, we conclude the omission resulted in a

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

Mass. at 297-298.

2. Open and gross lewdness. The defendant argues that

there was insufficient evidence to prove the defendant guilty of

open and gross lewdness. However, as a general matter, "no

appeal may come before us until after judgment, which in

criminal cases is the sentence." Commonwealth v. Delgado, 367

Mass. 432, 438 (1975). Because the Commonwealth nol prossed

that count prior to sentencing, we need not address the

sufficiency argument. See id. Moreover, the Commonwealth has

confirmed that it will not seek to reprosecute the defendant on

5 And, as discussed, complete exclusion of the evidence
would not have been reasonable in the context of the trial,
where both parties had an incentive to seek the admission of
that evidence.

6 Or, put differently, if the bad acts evidence had been
admitted with a proper limiting instruction.

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that charge, nor can it, given that the statute of limitations

has expired. See G. L. c. 277, § 63.

Judgments vacated.

Verdicts set aside.

By the Court (Henry, Hand &
Tan, JJ.7),

Clerk

Entered: December 10, 2025.

7 The panelists are listed in order of seniority.

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