Commonwealth v. Jeffrey Hanson.

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-30

COMMONWEALTH

vs.

JEFFREY HANSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of two

counts of aggravated rape of a child under the age of sixteen,1

and one count of incest. On appeal, he claims the first

complaint witness's testimony about the investigative process

was irrelevant and prejudicial, the evidence of the defendant's

past drug use was improper character and bad act evidence, and

the prosecutor's closing argument improperly appealed to the

jury's sympathy and vouched for the victim's and a witness's

credibility. We affirm.

1The aggravating factor was the more than five-year
difference in the ages of the defendant and victim, who was
under twelve years old. See G. L. c. 265, § 23A (a).
1. First complaint testimony. At the time of the

offenses, the victim was five years old. The victim's mother

was the first complaint witness. For the first time on appeal,

the defendant claims that the mother's testimony regarding what

she did in the aftermath of the victim's disclosure violated the

first complaint rule. In particular, the defendant takes issue

with the mother's testimony that she: (1) contacted the

victim's pediatrician; (2) met with a social worker who assisted

her with reporting the matter to the Department of Children and

Families; and (3) reported the assaults to the police. None of

these claims were preserved by an objection at trial, so we

review to determine whether this evidence created a substantial

risk of a miscarriage of justice. See Commonwealth v. Freeman,

352 Mass. 556, 563–564 (1967).

In Commonwealth v. King, 445 Mass. 217, 246-247 (2005),

cert. denied, 546 U.S. 1216 (2006), the Supreme Judicial Court

announced the first complaint rule, and explained its purpose as

follows:

"[t]he goal of this new first complaint doctrine is to give
the jury as complete a picture as possible of how the
accusation of sexual assault first arose. That complete
picture will allow them to make a fairer and more accurate
assessment of the validity of that accusation, based on
specific information about the people involved rather than
on outdated stereotypes and generalities."

2
Indeed, "a first complaint witness may testify to the

circumstances surrounding the initial complaint." Id. at 246.

Moreover, "[f]irst complaint testimony, including the details

and circumstances of the complaint, will be considered

presumptively relevant to a [victim's] credibility in most

sexual assault cases where the fact of the assault or the issue

of consent is contested." Id. at 247.

Here, the mother's testimony regarding the steps she took

following the victim's disclosure did not violate the first

complaint rule because it was relevant to the circumstances of

the complaint, and it tended to negate the defense theory of

fabrication.2 The mother's testimony about her reactions and the

steps she took were relevant to whether she had influenced the

victim, or manufactured the allegations. See Commonwealth v.

McCoy, 456 Mass. 838, 845 (2010), quoting King, 445 Mass. at 246

(first complaint witness may testify to "other relevant

conditions that might help a jury assess the veracity of the

[victim's] allegations or assess the specific defense theories

as to why the [victim] is making a false allegation").

2 The defense maintained that the defendant never sexually
assaulted the victim, and that the allegations were entirely
fabricated by the victim's mother, who the defense claimed
"hated" the defendant.

3
To the extent this evidence touched on matters that

preceded an investigation, it was not an improper introduction

of how the Commonwealth brought its resources to bear on the

incident, Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).

Rather, it was a proper response to the theory of defense, see

Commonwealth v. Espinal, 482 Mass. 190, 202 (2019); Commonwealth

v. Santos, 465 Mass. 689, 700-701 (2013), particularly in this

case with a child victim. See King, 445 Mass. at 239-240. The

admission of the mother's first complaint testimony, including

that now complained of, provided the jury with information that

permitted them to make a fair assessment of the victim's

credibility. See Commonwealth v. Hartnett, 72 Mass. App. Ct.

467, 472 (2008). There was no error, and thus, no risk that

justice miscarried. See Commonwealth v. Randolph, 438 Mass.

290, 297 (2002).

2. The defendant's past drug use. The defendant also

claims that the admission of evidence of his past drug use was

improper character and bad act evidence which resulted in

prejudicial error. We disagree.

Prior to trial, the defendant moved in limine to prohibit

the Commonwealth's witnesses from testifying relative to, among

other things, the defendant's past sale or use of drugs. At the

hearing on the motion, the prosecutor agreed that he would not

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introduce such evidence in his case-in-chief, but expressed

concern that he not be subject to the same limitation if defense

counsel opened the door to its admission. Ultimately, the judge

ruled that if the defense opened the door, the prosecutor would

be required to seek the judge's permission before pursuing the

matter.

At trial, the prosecutor heeded the evidentiary limitation

and did not introduce any evidence of the defendant's past drug

use in his direct examination of the witnesses. The

Commonwealth called the defendant's brother as a prosecution

witness. He testified that after the defendant was arrested on

the charges at issue here, the defendant asked him to meet; at

the meeting, the defendant admitted to having abused the victim

as she described. On cross-examination of the defendant's

brother, defense counsel asked whether he had drifted apart from

the defendant over the past couple of years, and he replied that

he now only got together with the defendant "reluctantly" a few

times a year. On redirect, the prosecutor asked why the two had

drifted apart, and the brother responded, "Part of it is this

issue, I think, . . . he has a drug problem, and I don't want

that around my -- my family."3 The defendant did not object.

3 Although the prosecutor did not seek a sidebar conference
before asking this question, it is not clear, on this record,

5
As an initial matter, the parties disagree on whether the

motion in limine preserved the defendant's claim. We need not

resolve that dispute because even if the claim is preserved, we

review for an abuse of discretion. Commonwealth v. McCowen, 458

Mass. 461, 478 (2010). "[E]vidence of prior bad acts 'is not

admissible to show a defendant's bad character or propensity to

commit the charged crime.'" Commonwealth v. Facella, 478 Mass.

393, 403 (2017), quoting Commonwealth v. Dwyer, 448 Mass. 122,

128 (2006). "[S]uch evidence is admissible when offered for

another purpose . . ., so long as its probative value for that

purpose is not outweighed by its prejudicial effect."

Commonwealth v. Welch, 487 Mass. 425, 442-443 (2021), quoting

Commonwealth v. Hall, 485 Mass. 145, 163 (2020).

Here, defense counsel opened the door by asking whether the

brothers had drifted apart. On redirect, the prosecutor was

entitled to seek an explanation of the matter. See Commonwealth

v. Garcia, 470 Mass. 24, 36 (2014). In any event, the reference

to the defendant's drug use was fleeting, was not solicited, and

gave the jury an understanding of why the brothers were no

longer close. This was particularly relevant because the

defendant denied that he admitted his crimes to his brother, and

that he believed the answer would refer to the defendant's drug
use.

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the brother's credibility was a live issue at trial. See

Commonwealth v. Foster, 411 Mass. 762, 767-768 (1992). See also

Commonwealth v. Rebello, 450 Mass. 118, 129 (2007) (defendant

not prejudiced by erroneously admitted but fleeting testimony

that he had sold heroin). There was no abuse of discretion.

In the defendant's case, the topic of drug use reappeared

during the prosecutor's cross-examination of the defendant. The

underlying purpose of the prosecutor's examination was to

impeach the defendant's testimony through his ability to

perceive. In this vein, and without objection, the defendant

agreed that his past abuse of opiates did not improve his memory

of events or his ability to perceive them. However, the

defendant denied using opiates after the victim was born, but

his heroin use increased after he lost custody of her. He also

admitted to using cocaine, but only after the assaults had been

reported to the police.

The defendant claims the motion in limine preserved this

claim, but the defendant's testimony, of course, occurred in his

defense, and not as part of the agreed-to limitation on the

Commonwealth's case-in-chief. In that posture, this claim of

error was not the subject of the motion in limine, and thus, it

is not preserved. See Commonwealth v. Grady, 474 Mass. 715, 719

(2016). Accordingly, to the extent that we discern error in the

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admission of this evidence, we review to determine whether the

prosecutor's cross-examination created a substantial risk of a

miscarriage of justice. See Freeman, 352 Mass. at 563–564.

Here, the prosecutor was not attempting to elicit bad act

or propensity evidence, but rather was endeavoring to establish

that the defendant's drug use had a deleterious effect on his

ability to perceive and remember the events about which he was

testifying. A witness may be impeached with matters that

challenge his testimonial facilities even if that evidence

reveals an otherwise inadmissible fact, like criminal activity

not related to the charged crime. See Commonwealth v. Daley,

439 Mass. 558, 564 (2003). This may properly include a

witness's use of narcotics. Commonwealth v. Carrion, 407 Mass.

263, 273-274 (1990). Here, the prosecutor was properly

attempting to determine whether the defendant's drug use

overlapped with the period during which the victim was sexually

assaulted. In the end, the defendant largely denied that his

past drug use affected his faculties, and defense counsel

declined the judge's offer for a curative instruction. There

was no error, and thus, no risk that justice miscarried.

Randolph, 438 Mass. at 297.

3. The prosecutor's closing argument. Finally, the

defendant claims for the first time on appeal that the

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prosecutor's closing argument improperly vouched for the

victim's and a witness's credibility, and impermissibly appealed

to the jury's sympathy. Because the defendant did not object to

the claims he now raises on appeal, we review to determine

whether there was error, and if so, whether it created a

substantial risk of a miscarriage of justice. "Errors of this

magnitude are extraordinary events and relief is seldom

granted." Randolph, 438 Mass. at 297.

"A prosecutor can address, in a closing argument, a
witness's demeanor, motive for testifying, and
believability, provided that such remarks are based on the
evidence, or fair inferences drawn from it, and are not
based on the prosecutor's personal beliefs. . . . When
credibility is an issue before the jury, 'it is certainly
proper for counsel to argue from the evidence why a witness
should be believed.'"

Commonwealth v. Freeman, 430 Mass. 111, 118–119 (1999), quoting

Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). Here, the

prosecutor properly urged the jury to believe the victim and the

witness, who was the defendant's brother. He stated that,

"On cross-examination, [the victim] says this wasn't easy
for her, and you can see why. She's a nine-year-old girl
who took the stand and had to talk about some terrible
things that happened to her. She told you in detail where
this happened at the defendant's home. She told you in
detail inside the home where it happened in the defendant's
bedroom on the bed."

Relative to the defendant's brother, the prosecutor argued

that,

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"[i]t was clear from his demeanor on the stand that this
was hard on him. He had to take the stand to testify
against his own flesh and blood, his brother, and he was
emotional. He got emotional talking about some of the good
times in the family, some of the stories that he had having
a younger brother being about [ten] years older than the
defendant.

"That they were brothers. They were -- they loved each
other. He told you about taking the defendant out when he
got his license. He told you about being the best man at
his wedding. Things that he had done to help the defendant
through the years. This is (indiscernible) the defendant,
and despite all of that, he got up there and told you in
great detail about the conversation he had with the
defendant, where the defendant admitted to the crime."

The prosecutor then recounted how the brother's testimony was a

detailed account of his conversation with the defendant. He

noted how the defendant struggled, and was emotional, in the

course of the admission he made to his brother. The prosecutor

then added,

"[t]his is a family member he cares about and still cares
about, but despite that, he got up there and told you that
the defendant admitted that he did what [the victim] said
he did. Why would [the defendant's brother] make that up?
He was the best man at the defendant's wedding. They had
been brothers for [forty] years; why would he make that
up?"

In short, we find no merit in the defendant's claim that in

these selected portions of the closing argument, the prosecutor

was urging the jury to believe the victim and the witness

because they were able to overcome the difficulty of having to

testify. Rather than vouching for their credibility or seeking

their testimony to be credited for simply having the wherewithal

10
to testify, the prosecutor was arguing the witnesses were

credible based on facts developed at trial, and highlighted

their demeanor as a reason to credit their testimony. In fact,

the prosecutor expressly told the jury that "[i]t was clear from

his demeanor on the stand that this was hard on him." In other

words, the prosecutor used the emotional nature of his testimony

about his own brother to illustrate that he had no motive to

lie. See Freeman, 430 Mass. at 118–119.

Similarly with respect to the victim, when the prosecutor

argued that "it wasn't easy" for her to testify, in context, was

an appropriate comment on her demeanor and the content of her

testimony, rather than a suggestion that the victim "was

credible because of her willingness to testify." Commonwealth

v. Dirgo, 474 Mass. 1012, 1014 (2016). The argument was used as

a backdrop to the reality of the difficult nature of the case

and the victim's young age -- all matters that were grounded in

evidence -- to argue why the victim was credible. Importantly,

the prosecutor did so by stressing not the victim's age or the

nature of the allegations, but by emphasizing how the victim

testified in great detail. See Commonwealth v. Deloney, 59

Mass. App. Ct. 47, 52 (2003).

Furthermore, and contrary to the defendant's claim, the

prosecutor's closing argument did not make an inappropriate

11
appeal to sympathy. The prosecutor's use of the term "gut

wrenching" to describe the victim's and the witness's testimony

was not an appeal to sympathy as much as it was an overall

characterization of the difficult subject matter of the case,

i.e., rape and incest. In fact, defense counsel also described

the case in his opening statement and closing argument as "ugly"

and "gut-wrenching." Although the prosecutor's repeated

references to the brother as the defendant's "flesh and blood"

were unnecessary rhetorical flourishes, they were simply used to

maintain that the brother had no motive to lie about what his

own brother had admitted to him.

Finally, it was not an appeal to sympathy for the

prosecutor to describe the victim's first complaint to her

mother as "an emotional moment where [the victim], at age five,

after bathing, decides to open up to her only real caretaker,

her mother, an only child," or shortly thereafter, to state,

"[i]t makes sense that [the victim] would open up to her mother.

She's a five-year-old. Her mother is the only real parent she

(indiscernible) love. Who else would she disclose this to?"

This portion of the argument merely addressed the reality

of the victim's circumstances as it was developed in the

evidence and responded to the defense of fabrication. Indeed,

because the defense had made the victim's and her mother's

12
credibility an issue on both cross-examination and in closing

argument, "the prosecutor was entitled to respond within the

limits of the evidence and to provide the jury with reasons for

believing [them]." Commonwealth v. Kapaia, 490 Mass. 787, 803

(2022). As there was no error, there was no risk that justice

miscarried.

Judgments affirmed.

By the Court (Vuono, Meade &
Hand, JJ.4),

Clerk

Entered: December 24, 2024.

4 The panelists are listed in order of seniority.

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