Commonwealth v. Jose Melendez.

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

23-P-306

COMMONWEALTH

vs.

JOSE MELENDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from his convictions on multiple charges of

aggravated rape of a child and a related charge, the defendant

contends that the evidence at trial was insufficient to support

the convictions, and raises other claims of error. Discerning

in the defendant's various claims no cause to disturb the

judgments, we affirm, addressing the defendant's various claims

in turn.

1. Sufficiency of the evidence. The defendant's challenge

to the sufficiency of the evidence rests on his contention that

the victim's inability to make an in-court identification of him

as the perpetrator of the crimes left the Commonwealth without

sufficient proof that he committed the crimes. We review a

challenge to the sufficiency under the familiar Latimore

standard: "[t]he question is 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. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979).

Though the victim did not identify the defendant in court

as his assailant, other evidence, viewed in combination,

sufficed to permit a rational jury to infer that the defendant

was the perpetrator.1 The victim testified that his assailant

was a teacher named "Mr. Melendez."2 The victim also described

his assailant as a bald Latino "teacher guy" in the victim's

classroom when he was in sixth and seventh grades at a

particular school. Alison Brown and Claudia Gutierrez, other

teachers at the victim's school, identified the defendant in

1 "It is not necessary that any one witness should
distinctly swear that the defendant was the man, if the result
of all the testimony, on comparison of all its details and
particulars, should identify him as the offender." Commonwealth
v. Coates, 89 Mass. App. Ct. 728, 732 (2016), quoting
Commonwealth v. Doe, 8 Mass. App. Ct. 297, 300 (1979).

2 As the Commonwealth observes, the defendant's contention
that the prosecutor improperly elicited the defendant's surname
from the victim by posing a leading question does not raise a
question of the sufficiency of the evidence; when determining
sufficiency of the evidence, we evaluate all evidence admitted
at trial, without regard to the propriety of the admission. See
Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014). In any
event, there was no objection to the question at trial, and the
use of a leading question does not render evidence inadmissible.
See Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 218
(1997).

2
court, and confirmed that he was the paraprofessional assigned

to Brown's (and the victim's) classroom at the relevant times.

The Commonwealth also introduced payroll and employment records,

establishing that the defendant was employed in that capacity,

and that he was at work at the times the assaults occurred. No

other paraprofessionals with the surname "Melendez" were

employed at the school during the relevant time.

The victim's inability to make an in-court identification

of the defendant goes to the weight of the evidence, rather than

its sufficiency. See Commonwealth v. Casale, 381 Mass. 167,

175-176 (1980).

2. Closing argument. There is likewise no merit to the

defendant's various claims that the prosecutor engaged in

improper argument during her closing. Several of the claims

raised by the defendant on appeal were not the subject of

objection at trial, so we consider any error solely for a

substantial risk of a miscarriage of justice. See Commonwealth

v. McCoy, 456 Mass. 838, 845-846 (2010). First, there was no

impropriety in the prosecutor's identification, in her closing

argument, of the defendant as the perpetrator of the assaults.

The prosecutor is entitled in closing argument to marshal all

evidence adduced at trial, and to "argue forcefully for a

conviction based on the evidence and on inferences that may

reasonably be drawn from the evidence" (quotation and citation

3
omitted). Commonwealth v. Martinez, 476 Mass. 186, 200 (2017).3

The prosecutor's reference to first complaint testimony of the

victim's maternal aunt was likewise not improper. Read in

context, the testimony to which the prosecutor referred was

employed to bolster the credibility of the victim's testimony,

an entirely appropriate purpose of first complaint testimony.

See Commonwealth v. Kennedy, 478 Mass. 804, 814 (2018).

Finally, the prosecutor's reference to Dr. Block's testimony

concerning "weapon focus effect" was, as the Commonwealth

observes, faithful to the evidence. There was no error, and so

no substantial risk of a miscarriage of justice.

The defendant's preserved claim of improper argument fares

no better. The prosecutor's rhetorical question asking whether

the victim's inability to identify the defendant in court might

have resulted from poor vision finds support in the evidence, in

the testimony by the victim's maternal aunt (who testified that

the victim had glasses but did not use them because he did not

like using them), and the testimony of the victim's teacher,

Brown (who testified that the victim rarely wore his glasses

3 Nor is there any impropriety in the prosecutor's reliance
on the victim's response to a leading question. See note 2,
supra.

4
during class, so she had him sit toward the front of the

classroom so he could see the blackboard).4

3. Ineffective assistance. Though the maternal aunt's

testimony that she was "pretty nervous, and surprised" when the

victim disclosed the assaults to her was irrelevant, and

therefore would have been excluded had trial counsel objected,

its admission was of extremely limited significance. A timely

objection by trial counsel would not "have accomplished

something material for the defense" (citation omitted),

Commonwealth v. Ng., 489 Mass. 242, 250 (2022), or raised "a

serious doubt whether the result of the trial might have been

different" (citation omitted). Commonwealth v. Souza, 492 Mass.

615, 627 (2023).5

4. Inadequate investigation. Finally, there is no merit

to the defendant's claim that his conviction should be reversed

by reason of the failure of police to "properly investigate" all

potentially exculpatory evidence. See Commonwealth v. Walters,

485 Mass. 271, 286 (2020)(though prosecution "obligated to

4 The prosecutor's comment on the victim's demeanor during
his testimony, including his apparent reluctance to look at the
defendant, likewise was not improper. See Commonwealth v.
Johnson, 102 Mass. App. Ct. 195, 204 (2023).

5 The fact that the victim's uncle was present when he
disclosed the assault to his aunt is immaterial, since the uncle
did not testify. See Commonwealth v. King, 445 Mass. 217, 242-
243 (2005), cert denied, 546 U.S. 1216 (2006).

5
disclose all exculpatory evidence in its possession, it is under

no duty to gather evidence that may be potentially helpful to

the defense").6

Judgments affirmed.

By the Court (Green, C.J.,
Henry & Ditkoff, JJ.7),

Assistant Clerk

Entered: May 3, 2024.

6 The defendant's claim that the judge was required to
administer an instruction pursuant to Commonwealth v. Bowden,
379 Mass. 472 (1980), is contrary to settled law. See
Commonwealth v. Durand, 475 Mass. 657, 674 (2016).

7 The panelists are listed in order of seniority.

6