Commonwealth v. Gonzalez

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21-P-33 Appeals Court

COMMONWEALTH vs. FELIPE GONZALEZ, SR.

No. 21-P-33.

Bristol. February 2, 2023. – August 9, 2023.

Present: Englander, Grant, & Brennan, JJ.

Rape. Child Abuse. Constitutional Law, Confrontation of
witnesses. Evidence, First complaint, Authentication.
Practice, Criminal, Confrontation of witnesses, Argument by
prosecutor.

Indictments found and returned in the Superior Court
Department on September 15, 2016; March 2, 2017; and October 11,
2017.

The cases were tried before Sharon E. Donatelle, J.

Jennifer M. Petersen for the defendant.
Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.

BRENNAN, J. After a jury trial in Superior Court, the

defendant was convicted of nine counts of rape of a child

aggravated by age difference (G. L. c. 265, § 23A), one count of

rape of a child by force (G. L. c. 265, § 22A), one count of
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assault with intent to rape a child (G. L. c. 265, § 24B), one

count of assault and battery (G. L. c. 265, § 13A), six counts

of indecent assault and battery on a child under fourteen (G. L.

c. 265, § 13B), and one count of witness intimidation (G. L.

c. 268, § 13B), all related to the repeated and prolonged sexual

abuse of the victim. Concluding that (1) the judge acted within

her discretion in permitting a substitution of the first

complaint witness, (2) the judge properly admitted as first

complaint evidence screenshot images (screenshots) of the

victim's conversation over a social media application, (3) the

victim's statements about having "told" her mother did not

amount to subsequent complaints, (4) the defendant's statements

to the victim were properly admitted in evidence, and (5) there

was no risk of a miscarriage of justice based on the

prosecutor's closing argument, we affirm.

Background. In October 2011, when the victim was

approximately eight years old, she came to the United States

from Guatemala to live in Avon with her mother and her mother's

husband, the defendant. About six months later, the defendant

sexually assaulted the victim for the first time. This was the

beginning of a long pattern of sexual abuse that continued after

the family moved to North Attleboro when the victim was

approximately ten years old, and to Raynham when she was twelve.

The victim testified that the defendant routinely raped her --
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as often as "every other day" -- and occasionally forced her to

perform other sexual acts by threatening to rape her if she did

not. The victim did not tell her mother about the sexual

assaults because the defendant threatened to rape her younger

sister and to hurt her mother if she reported the assaults.

When the victim was thirteen years old, in August 2016, she

disclosed the sexual assaults to her male cousin who lived in

Guatemala. The victim began to tell her cousin over the

telephone that she had been raped, but when the defendant

arrived home, the victim moved their conversation to a social

media application, Facebook messenger. A portion of their

messages, which was admitted in evidence translated from

Spanish, was as follows:

Cousin: "Who did it?"
Victim: "I am not going to tell you[.] Because I know you
are going to get angry[.]"
Cousin: "Was it Felipe? Or tell me who it was[.] You
must . . . tell me[.]"
Victim: "It was him[.] But you cannot do anything[.]
Ok[.] I am telling you because I trust you[.] When I was
eight years old[.] Do the math now I am 13 and (he) still
tries to do it[.]
"(He) walks into my bedroom and [t]ells me things[.]
Yes, I am sure[.]
"I know what it means to do something by force [a]nd
what it means to do something out of your own will[.] . . .
"Do not tell anyone ok . . . [?] Can you promise me
that?"

Although the chain of events is not entirely clear from the

record, it seems that the victim's cousin passed screenshots of
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their conversation to the victim's godmother, and she in turn

sent them to the victim's father, who resided in Connecticut.

Shortly after learning of the abuse allegations, on August

17, 2016, the victim's father drove to the home in Raynham where

the victim lived with her mother and the defendant. After the

father arrived, he informed the victim's mother of the abuse

allegations and then the mother placed a video telephone call to

the defendant, who was at work. The father testified that,

during that conversation, the defendant spoke to the victim and

told her, in Spanish, something to the effect of the following:

"whether I did this or I did not do this, I'm going to get in

trouble." The victim testified that the defendant asked her "if

[she] was sure that [she] wanted to say that, and whether he did

it or he didn't do it, that it was going to cause a lot of

problems."

Discussion. 1. Substitution of the first complaint

witness. The defendant argues that the trial judge abused her

discretion by permitting the Commonwealth to introduce the

victim's communications with her cousin as her first complaint

where the victim previously disclosed the sexual abuse to a

relative of the defendant who did not remember the disclosure.

We disagree.

Where the first complaint witness "has an obvious bias or

motive to minimize or distort the victim's remarks," it is
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within the judge's discretion to allow the next available

complaint witness to testify. Commonwealth v. Murungu, 450

Mass. 441, 446 (2008). "[T]he standard of review of that

determination is an abuse of discretion. If the decision is

dependent on findings of fact, such as in the case of bias on

the part of the witness, the judge should make the necessary

findings which will be upheld unless clearly erroneous." Id. at

446-447.

Until shortly before trial, prosecutors understood that the

victim's disclosure to her cousin was her first complaint.

Then, on the eve of trial, prosecutors learned from the victim

that, when she was ten years old, she told a then nine year old

girl -- who was a relative of the defendant -- about the abuse.

After the girl's father told police that his daughter had no

memory of the victim's disclosure, the Commonwealth moved, in

limine, to introduce as substitute first complaint evidence the

victim's Facebook messages to her cousin in Guatemala. The

judge conducted a voir dire of the girl (the defendant's

relative), who testified that she had no memory of the victim

telling her that the defendant had done something to her

sexually. She also testified that she calls the defendant her

"uncle"; that her father speaks with the defendant every one to

two weeks; and that, despite being relatively close before the

defendant was charged, she and the victim had not been in
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contact since then. We are satisfied that the judge's

conclusions that the defendant's relative was biased in favor of

the defendant and had motive to minimize her recollection of the

victim's disclosure were amply supported. See Murungu, 450

Mass. at 446. Further, the defendant's relative had no memory

of any disclosure by the victim.1 See Commonwealth v. Holt, 77

Mass. App. Ct. 716, 722 n.5 (2010) (no error to allow substitute

first complaint witness where initial first complaint witness

had no recollection of any complaint). We discern no abuse of

discretion in the judge's decision to permit a substitution of

the victim's complaint to the next person she told.

2. Admission of screenshots as first complaint evidence.

The defendant next challenges the judge's decision to admit the

first complaint evidence through screenshots of the victim's

Facebook messages with her cousin in Guatemala. "Once a judge

has carefully and thoroughly analyzed [the underlying goals of

the first complaint doctrine, our established first complaint

jurisprudence, and our guidelines for admitting or excluding

relevant evidence], and has decided that proposed first

complaint evidence is admissible, an appellate court shall

1 Called by the defendant at trial, that relative testified
that the victim never disclosed anything about being abused by
the defendant.
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review that determination under an abuse of discretion

standard." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).

a. Authentication. At trial, the judge ruled that the

screenshots of the victim's conversation with her cousin were

properly authenticated by the victim's testimony. The defendant

now claims proper authentication requires testimony from more

than one participant in a conversation. We discern no support

for this remarkable proposition in any applicable case law. In

fact, it is well settled that Facebook messages may properly be

authenticated by circumstantial evidence alone, without live

testimony from any participant. See Commonwealth v. Meola, 95

Mass. App. Ct. 303, 310-315 (2019), citing Commonwealth v.

Purdy, 459 Mass. 442 (2011). See also Mass. G. Evid.

§ 901(b)(1), (11) (2023). Here, the victim testified as to when

and how the conversation took place, and she verified that the

screenshots and translation of the conversation were accurate.

We therefore are satisfied that the evidence was sufficiently

authenticated. See Commonwealth v. Oppenheim, 86 Mass. App. Ct.

359, 366-367 (2014) (preponderance of evidence standard for

authentication of electronic communications).

b. Confrontation clause. The defendant also asserts that

the admission of screenshots of the victim's first complaint

without live testimony from the recipient of the complaint

deprived him of his right to confront adverse witnesses, as
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guaranteed by the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights. We disagree. Confrontation clause issues "do not arise

when the evidence is not offered for the truth of the matter

asserted and therefore is not hearsay under traditional rules of

evidence." Commonwealth v. Caillot, 454 Mass. 245, 255 (2009),

cert. denied, 559 U.S. 948 (2010), citing Tennessee v. Street,

471 U.S. 409, 413-414 (1985). See Crawford v. Washington, 541

U.S. 36, 51, 59 n.9 (2004). Here, the Facebook messages

themselves were the first complaint, admissible not for their

truth, but to corroborate the victim's account of the assault.

See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008) ("If, in

fact, the letter was the first complaint, that is the end of the

matter. The letter would be the first complaint evidence");

Commonwealth v. King, 445 Mass. 217, 219 (2005), cert. denied,

546 U.S. 1216 (2006) ("First complaint testimony may be admitted

for a limited purpose only, to assist the jury in determining

whether to credit the complainant's testimony about the alleged

sexual assault. The testimony may not be used to prove the

truth of the allegations"); Commonwealth v. Alce, 96 Mass. App.

Ct. 851, 854 n.6 (2020) ("Significantly, because under the first

complaint doctrine, the alleged victim's out-of-court statement

is not offered for its truth, it is not hearsay and the

confrontation clause is not implicated" [quotation and citation
9

omitted]). See also Commonwealth v. Revells, 78 Mass. App. Ct.

492, 496 (2010) (first complaint was both victim's verbal

statements to her mother and letter she wrote in "tightly

intertwined oral and written communication"). The jury were

properly instructed that they could not consider the screenshots

"as evidence that the assault in fact occurred."2

3. Victim's testimony about having "told" her mother.

During direct examination, the victim testified that the

defendant last raped her "a few nights before I told my mother

about what he was doing" and she last saw the defendant "[t]he

day that I told my mom." The defendant claims that these

references to the victim's having "told" her mother were

prejudicial error because they were "essentially the same as

permitting those other witnesses to testify" as additional

complaint witnesses, even where "the details of her

2 We also reject the defendant's contention that allowing
the victim to authenticate the screenshots improperly allowed
her to bolster her own credibility. Complainants are
specifically permitted to "testify to the details of the first
complaint (i.e., what she told the first complaint witness), as
well as why the complaint was made at that particular time," for
the stated purpose of demonstrating that their allegations are
credible. King, 445 Mass. at 219. See Commonwealth v. Arana,
453 Mass. 214, 228 (2009) ("The first complaint doctrine is an
evidentiary rule designed to give support to a complainant's
testimony of a sexual assault in cases where the credibility of
the accusation is a contested issue at trial"). It so happens
that in this case, as in most cases with written first
complaints, this testimony also served to authenticate the
screenshots.
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conversations were omitted." Stuckich, 450 Mass. at 457. We

disagree.3

The first complaint doctrine "does not . . . prohibit the

admissibility of evidence that, while barred by that doctrine,

is otherwise independently admissible." Commonwealth v. Arana,

453 Mass. 214, 221-222 (2009). When considering whether

evidence of subsequent complaints was properly admitted, "we ask

whether the independently admissible evidence served a purpose

other than to corroborate the victim's accusation, and whether

that evidence was sufficiently important to a fair understanding

of the Commonwealth's case that its probative value outweighed

potential prejudice to the defendant." Commonwealth v. Dargon,

457 Mass. 387, 400 (2010).

Here, in conjunction with the father's testimony that on

August 17, 2016, he went to Raynham and spoke to the victim and

her mother, who then spoke to the defendant over a video

telephone call, the victim's testimony about when she "told" her

3 The defendant objected to the first instance, and at
defense counsel's request, the judge permitted a voir dire of
the victim, who explained that her conversation with her mother
happened after her disclosure to her cousin. The defendant did
not object to the second instance. Although this would lower
our standard of review for the second instance, see Commonwealth
v. Santos, 95 Mass. App. Ct. 791, 795 (2019) (waived claims of
error still subject to review for substantial risk of
miscarriage of justice), we need not differentiate, as we
conclude that neither instance meets the higher prejudicial
error standard.
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mother explained to the jury why, after several years, the "same

routine" of abuse suddenly stopped on or about August 15, 2016,

the date specified in the indictments. It also put her

complaint to her cousin in Guatemala in temporal context. Thus,

in both instances where the victim referenced having "told" her

mother, it was to place events in time, not to bolster her

credibility. See, e.g., Dargon, 457 Mass. at 400 (statements

served independent purpose where they "provided a complete

picture of the timing of the complaint," which was "particularly

important" given challenge to victim's credibility). Moreover,

in context, we discern little risk of unfair prejudice from the

victim's vague and fleeting testimony that she "told [her]

mother about what [the defendant] was doing." Contrast Arana,

453 Mass. at 227 (victim's testimony about disclosures of sexual

assaults to her parents had no direct relevance to defense

accusations of police bias and "served only the impermissible

purpose . . . of shoring up the credibility of a critical

witness against the defendant").

4. The defendant's statements to the victim. The

defendant argues that his statements to the victim during the

video telephone call were not admissible because they were not

sufficiently indicative of his guilt without more evidence of

the context in which they arose. We review the judge's
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evidentiary ruling for abuse of discretion. See Commonwealth v.

Babcock, 100 Mass. App. Ct. 527, 528 (2021).

The defendant cites Commonwealth v. Andrade, 488 Mass. 522,

535-537 (2021), which discusses the requirements for admissions

by silence. However, the defendant's statements here were not

admissions by silence -– they were statements made by a party

opponent. See Mass. G. Evid. § 801(d)(2)(A) (2023). See also

Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (extrajudicial

statement by party opponent exception to rule against

introduction of hearsay). Contrary to the defendant's argument,

there is no special or heightened requirement for admitting a

defendant's statement under the party opponent exception when it

might constitute an admission of guilt. See Commonwealth v.

Anderson, 448 Mass. 548, 563 (2007).

We are not persuaded by the defendant's related argument

that his statements were so ambiguous that they were unfairly

prejudicial. Evidence is unfairly prejudicial "only if it has

an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one" (quotation

and citation omitted). Commonwealth v. Kindell, 84 Mass. App.

Ct. 183, 188 (2013). In this case, to the extent the

defendant's statements were ambiguous, it was for the jury to

determine their meaning. The defendant's statements were

"equivocal response[s] that could be construed as self-
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incriminating," and their "meaning properly was a question of

fact for the jury." Commonwealth v. Lewis, 465 Mass. 119, 127

(2013).4

5. Prosecutor's closing argument. Finally, the defendant

raises several issues with the prosecutor's remarks during

closing arguments. The defendant did not object to the closing

argument at trial. Thus, "[w]e must determine whether there was

an error that created a substantial risk of a miscarriage of

justice. We appraise the closing argument as a whole as well as

the judge's instructions to the jury." Commonwealth v.

Grandison, 433 Mass. 135, 142 (2001).

After reviewing the full transcript of the closing argument

and focusing on the challenged portions, we conclude that only

one statement exceeded proper bounds. The prosecutor told the

jury the following after noting that it was "unfortunate" that

the examination of the victim did not reveal any physical

evidence of sexual assault:

"[Y]ou are still left with evidence. The testimony is
evidence. Her Honor will tell you that. And when you
decide to answer those questions and you'll ask those

4 For largely the same reasons, we are not persuaded that
the prosecutor erred in suggesting during closing argument that
the jury make the inference that the statements were admissions.
Separately, the defendant additionally argues that the admission
of his statements violated various constitutional rights, but he
cites no cases to support his contention. We are not required
to consider arguments not properly raised in the parties'
briefs, and we decline to do so here. Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
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questions, can you be fair, can you have an open mind, can
you judge all of the evidence, and that includes testimony.
Because that child is also entitled to a fair and just
trial, just like he is. Everybody is. And that means for
you to weigh the evidence which is testimony." (Emphasis
added.)

"It is improper for a prosecutor to characterize a criminal

trial as a dispute between a . . . victim on the one hand, and

the defendant on the other, and to exhort the jury to dispense

justice evenly between them." Commonwealth v. Niemic, 472 Mass.

665, 676 (2015), S.C., 483 Mass. 571 (2019). Nevertheless, we

do not perceive this statement as part of a larger strategy to

improperly influence the jury. See, e.g., Commonwealth v.

Judge, 420 Mass. 433, 451-452 (1995) (single improper sentence

appealing to sympathy did not require new trial). Where there

was no objection to the prosecutor's closing at trial, the

improper comment was fleeting, and the judge clearly and

forcefully instructed the jury on the Commonwealth's burden of

proof and the jury's obligation to consider the evidence

impartially, there was no risk that justice was miscarried. See

Grandison, 433 Mass. at 142.

Judgments affirmed.