Commonwealth v. Wilfrido 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

23-P-841

COMMONWEALTH

vs.

WILFRIDO CASTILLO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Wilfrido Castillo, was convicted of enticement of a

child under sixteen (child enticement).1 On appeal, he contends

that (1) the evidence was insufficient to support his

conviction, (2) the jury instructions on child enticement were

erroneous and created a substantial risk of a miscarriage of

justice, (3) the verdict slip failed to reflect the elements of

child enticement, (4) the judge erroneously admitted duplicate

1The defendant was also charged with witness intimidation,
unauthorized access to a computer system, and indecent assault
and battery on a child under fourteen. The judge dismissed the
count of unauthorized access to a computer system at the request
of the Commonwealth. The jury found the defendant not guilty of
witness intimidation and indecent assault and battery on a child
under fourteen.
first complaint testimony, and (5) the prosecutor's opening

statement, questioning of witnesses, and closing argument

contained errors that created a substantial risk of a

miscarriage of justice. Because we agree with the defendant

that the judge's instructions were incomplete, we vacate the

defendant's conviction.

Background. The victim became friends with the defendant's

stepdaughter2 in the summer of 2013. A few weeks after the

victim and the defendant's stepdaughter began "hanging out," the

victim met the defendant. The victim was thirteen years old at

the time.3 The defendant often drove the victim and his

stepdaughter places and watched movies with them at his house.

On August 31, 2013, the victim and the stepdaughter spent

the day together and returned to the stepdaughter's house. At

approximately midnight, the defendant, the victim, the

stepdaughter, and the stepdaughter's boyfriend were watching a

movie in the living room. At that time, the victim received a

text message from an unfamiliar number. The person who sent the

2 The defendant was the "boyfriend" of the victim's friend's
mother. However, throughout trial the victim referred to the
defendant as her friend's "stepdad" or "stepfather." Likewise,
the victim's friend referred to the defendant as her "stepdad,"
and the defendant characterizes the victim's friend as his
"stepdaughter" in his appellate brief.

3 The victim turned fourteen shortly before trial.

2
text identified himself as the defendant.4 The defendant sent

the victim text messages stating that he "liked" her, that he

thought she was "pretty," and that he thought she liked him

because she was "always looking at him." He also sent the

victim a message asking her to "meet him in the bathroom." At

some point, the defendant sent the victim a message asking her

to delete the texts, and when she replied that she did, he

"texted [her] back, I don't believe you." Later in the text

exchange, the defendant wrote, "I'm sorry" and called the victim

a "good girl."

After they exchanged messages, the defendant moved toward

the bottom of the couch where the victim was sitting and sat on

the ground in front of her. He turned towards her, asked to see

her phone, and "took it out of [her] hands." The victim

"snatched" her phone back from him. A few minutes later, the

defendant stood up, "looked directly in [the victim's] eyes,"

and rubbed his hand up her thigh. The rubbing "started by" the

victim's knee and "then it went up." The victim was "wicked

scared," "shaking," "panicking" and "really freaking out," but

"kind of like stayed still." She began texting and calling

members of her family, including her aunt, trying to find

4 The defendant had the victim's "telephone number," and had
called her at that number in the past to reach his stepdaughter.

3
someone to pick her up from the stepdaughter's house, but was

unable to reach them. "[F]inally," the victim was able to reach

her cousin, and "told her that she needs to come get me," as the

victim believed that she was "not safe." The victim then walked

into the stepdaughter's bedroom to retrieve her belongings. The

defendant followed her into the bedroom. After the victim

fabricated an excuse to explain why she was leaving, the

defendant apologized to her and told her that she was a "good

girl." The victim left the house, saw her aunt's vehicle, and

ran to it.

Discussion. 1. Sufficiency of the evidence. We review

the sufficiency of the evidence to determine "whether, after

viewing the evidence in the light most favorable to the

[Commonwealth], any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(emphasis and citation omitted). Commonwealth v. Latimore, 378

Mass. 671, 677 (1979). "If, from the evidence, conflicting

inferences are possible, it is for the [factfinder] to determine

where the truth lies, for the weight and credibility of the

evidence is wholly within [its] province." Commonwealth v. Lao,

443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460

Mass. 12 (2011). In addition, "[c]ircumstantial evidence is

competent to establish guilt beyond a reasonable doubt . . . and

the reasonable inferences drawn from such evidence need not be

4
necessary or inescapable, only reasonable and possible"

(quotations and citations omitted). Commonwealth v. MacCormack,

491 Mass. 848, 854 (2023).

"The crime of child enticement has four elements: (1) 'Any

one who entices,' (2) 'a child under the age of 16, or someone

he believes to be a child under the age of 16,' (3) 'to enter,

exit or remain within any vehicle, dwelling, building, or other

outdoor space,' (4) 'with the intent that he or another person

will violate [one of several enumerated statutes] . . . or any

offense that has as an element the use or attempted use of

force.'" Commonwealth v. LaPlante, 73 Mass. App. Ct. 199, 202

(2008), quoting G. L. c. 265, § 26C. In the present case, the

Commonwealth proceeded on a theory that the defendant enticed

the victim intending to commit indecent assault and battery on a

child under fourteen, in violation of G. L. c. 265, § 13B, one

of the statutes enumerated in the child enticement statute,

G. L. c. 265, § 26C.

The defendant first contends that the Commonwealth failed

to prove that he intended to commit a crime against a person he

knew or believed to be under the age of fourteen. We disagree.

"When the statute the defendant is alleged to have intended
to violate is a strict liability statute . . . the
Commonwealth is required to prove beyond a reasonable
doubt, as an element of the crime of child enticement, that
the defendant intended that his advances be directed to an
underage person (i.e., under the age of fourteen for
purposes of § 13B)" (emphasis omitted).

5
Commonwealth v. Filopoulos, 451 Mass. 234, 238 (2008). The

Commonwealth is not required to prove that the defendant knew

the exact age of the child, but that "his intention was to

direct his sexual advances to" a person under the age of

fourteen. Id. See Commonwealth v. Disler, 451 Mass. 216, 228

(2008). "[A] person's knowledge or intent is a matter of fact

which is often not susceptible of proof by direct evidence, so

resort is frequently made to proof by inference from all the

facts and circumstances developed at the trial" (quotation and

citation omitted). Commonwealth v. Schoener, 491 Mass. 706, 715

(2023).

Here, the Commonwealth presented sufficient evidence for a

rational jury to find that the defendant knew or believed that

the victim was under fourteen. The evidence showed that the

victim and the defendant's stepdaughter were close friends, and

due to that friendship, the defendant spent time with and around

the victim. Indeed, in the two weeks leading up to the

incident, the victim and stepdaughter "hung out" on almost a

daily basis, including "a lot" of time at the defendant's house.5

Further, the jurors heard that the victim was thirteen years old

5 The Commonwealth did not present evidence of the
stepdaughter's age during its case-in-chief. Called as a
witness by the defendant, the stepdaughter testified that she
was fifteen years old at the time of trial in March of 2014.

6
at the time of the incident, did not "turn fourteen" until

shortly before trial, was in eighth grade at the time of trial,

and thus was between seventh and eighth grade at the time of the

crime. In addition, the jurors had the opportunity to observe

her appearance during trial. See Commonwealth v. Pittman, 25

Mass. App. Ct. 25, 27 (1987) ("[p]hysical appearance may be

considered as an element in judging age").6 The Commonwealth

also presented abundant evidence of the defendant's

consciousness of guilt. He asked the victim to delete the text

messages he sent to her, grabbed her cellphone to try to delete

them himself, apologized to her, and told her she was a "good

girl" and that he "didn't mean to do that." See Disler, 451

Mass. at 231 ("recognizing the criminal nature of the planned

conduct, the defendant repeatedly told [the victim] that they

had to be careful"). Viewing the totality of evidence presented

at trial in the light most favorable to the Commonwealth, there

was sufficient evidence for the jury to infer that the defendant

6 The Commonwealth notes in its brief that defense counsel
referred to the victim in closing argument as a "petite 13 year
old." Although this observation was consistent with the
Commonwealth's argument that the victim's age was apparent from,
inter alia, her youthful appearance, closing arguments do not
constitute evidence and the jury was instructed to that effect.
Thus, we do not consider defense counsel's statement in our
analysis. See Commonwealth v. Malone, 100 Mass. App. Ct. 399,
410 (2021) (judge properly instructed jury "before and after
trial that closing arguments are not evidence").

7
"intended that his advances be directed" to a person under the

age of fourteen. See Filopoulos, 451 Mass. at 238.

The defendant next contends that there was insufficient

evidence that he intended to commit an indecent assault and

battery on the victim. Again, we disagree. Although an overt

act by the enticer is not required, more than "merely speaking

words" is necessary -- the enticer's conduct must be accompanied

by the requisite criminal mens rea. LaPlante, 73 Mass. App. Ct.

at 202. See Disler, 451 Mass. at 222 ("[I]n addition to

enticing words or gestures . . . the person who entices [must

do] so with the intent to violate one or more of the enumerated

criminal statutes").

Here, the Commonwealth presented evidence that the

defendant texted the victim and told her that he thought she was

pretty, that he liked her, and that he thought that she liked

him. The content of the defendant's messages, his subsequent

rubbing of the victim's thigh, and the consciousness of guilt

evidence referenced above, were sufficient to demonstrate his

intent to commit an indecent assault and battery on her. The

defendant's argument that it was "equally plausible that he

wanted to talk to [the victim] alone, or chat with her further"

is not persuasive in view of the evidence in the light most

favorable to the Commonwealth, including the touching of her

thigh, and the timing and content of the text messages. See

8
Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 574-575 (2002)

(defendant's intent permissibly inferred in part from "the

absence of any other motive").

2. Jury instructions. The defendant claims that the judge

failed to instruct the jury that the Commonwealth was required

to prove that he intended that his advances be directed to a

person under the age of fourteen. Because there was no

objection to the instructions, our review is limited to

determining "whether an error occurred and, if so, whether that

error created a substantial risk of a miscarriage of justice."

Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). "We

evaluate jury instructions as a whole and interpret them as

would a reasonable juror." Commonwealth v. Kelly, 470 Mass.

682, 697 (2015).

Where a defendant is charged with child enticement, the

Commonwealth is required to prove beyond a reasonable doubt "not

only that the defendant enticed a person under the age of

sixteen, or someone he believed to be under the age of sixteen,

but also that the defendant so acted with the intent to violate

one or more of the enumerated criminal statutes." Filopoulos,

451 Mass. at 238. Here the Commonwealth's theory was that the

defendant enticed the victim so that he could commit an indecent

assault and battery on a child under the age of fourteen in

violation of G. L. c. 265, § 13B, a strict liability statue. As

9
noted supra, in these circumstances, the "Commonwealth is

required to prove beyond a reasonable doubt, as an element of

the crime of child enticement, that the defendant intended that

his advances be directed to" a person under the age of fourteen.

Filipoulous, supra.

With these principles in mind, we turn to the judge's

instructions in the present case. The judge first instructed

that the Commonwealth had the burden to prove the following

elements of child enticement:

"First, that the alleged victim here . . . was a child
under the age of 16 or a person whom the defendant believed
to be under 16 at the time of the alleged offense. Second,
that the defendant enticed [the victim] to remain within a
dwelling. Third, that the defendant did so with the intent
that he would commit the offense in this case of an
indecent assault and battery on a child under the age of
14."

The judge elaborated briefly on each of the elements. With

respect to the third element, the judge told the jury that "the

Commonwealth must prove beyond a reasonable doubt that by this

enticement the defendant intended to commit the offense of

indecent assault and battery as I'm going to describe that

offense to you shortly." The judge next summarized the elements

of child enticement again:

"if you find the Commonwealth has proved all three of those
things beyond a reasonable doubt, again that [the victim]
was under the age of 16, a child under the age of 16 at the
time; second, that the defendant enticed [the victim] to
remain within a dwelling as I've defined that term for you;
and third, that he did so with the intent that he would

10
commit an indecent assault and battery on this child then
you should find the defendant guilty . . . of the charge of
enticing a child under 16."

The judge subsequently instructed the jury on the elements of

indecent assault and battery on a child under fourteen as

follows:

"First is that the alleged victim . . . in this case, was
not yet 14 years of age at the time of the alleged offense.
So she was under 14 years of age at the time of offense.
Second, that the defendant committed an assault and battery
on that child. Assault and battery in this context is
essentially the intentional touch -- touching of another
person without legal justification or excuse. And third,
the Commonwealth must prove beyond a reasonable doubt that
the assault and battery was indecent as that word is
commonly understood and measures by common understanding
and practices. Jurors, again let me just go through those
one more time. First . . . [t]he alleged victim . . . was
not yet 14 years of age. So if she was 14 or older it
would not be appropriate under this charge. It has to be
under 14 at the time. Second, that the defendant committed
an assault and battery on that child, again which would be
essentially the intentional touching of another person
without legal justification or excuse. So an accidental
touching would not fall under this. It must be an
intentional touching. And third, the Commonwealth . . .
must prove beyond a reasonable doubt that the assault and
battery was indecent as that word is commonly understood
measured by common understanding and practices . . . . So,
Jurors, if you find that the Commonwealth has proved those
three things beyond a reasonable doubt, that the
complainant . . . was not yet 14 years of age at the time;
second, that the defendant committed an assault and battery
on that child as I've just described it; and third, that
the assault and battery was indecent as the word is
commonly understood and as I've just described or defined
that for you, then you should find the defendant guilty of
indecent assault and battery on a child."

The defendant contends that the judge's instructions failed

to inform the jury that the defendant's specific intention to

11
direct his advances on a child under fourteen was an essential

element of the enticement charge. See Filopoulos, 451 Mass. at

242-243. We agree. In Filopoulos, the defendant similarly was

charged with child enticement with the intent to commit indecent

assault and battery on a child under the age of fourteen. Id.

at 234-235. However,

"[a]t no point in his charge did the judge expressly inform
the jury that, to satisfy the intent element of the child
enticement statute . . . on the basis of an intent to
violate G. L. c. 265, § 13B (indecent assault and battery
on a child under the age of fourteen), the Commonwealth was
required to demonstrate that the defendant intended the
object of his advances to be a child under the age of
fourteen."
Id. at 242-243. As the instructions did not adequately convey

to the jury the Commonwealth's burden to prove that the

defendant specifically intended to direct his advances on a

child under the age of fourteen, the Supreme Judicial Court

determined that the error created a substantial risk of a

miscarriage of justice. Id. at 243.

In the present case, the instructions informed the jury

that the Commonwealth needed to prove that the defendant enticed

the victim "with the intent that he would commit the offense in

this case of an indecent assault and battery on a child under

the age of 14." The defendant was also charged with indecent

assault and battery on a child under the age of fourteen, and in

that context, the judge further instructed that the Commonwealth

must prove the elements of indecent assault and battery on a

12
child under the age of fourteen -- i.e., that the victim was not

yet fourteen years of age at the time of the alleged offense;

that the defendant committed an assault and battery on that

child; and that the assault and battery was "indecent." The

instructions on child enticement and indecent assault and

battery on a child under fourteen, standing alone, were correct.

However, just as in Filopolous, the instructions viewed as a

whole never conveyed to the jury that for the enticement charge,

"the Commonwealth was required to demonstrate that the defendant

intended the object of his advances to be a child under the age

of fourteen."7 Filopoulos, 451 Mass. at 242-243. See Note 1 to

Instruction 6.560 of the Criminal Model Jury Instructions for

Use in the District Court (2011).

We thus turn to whether the deficiency in the instruction

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023). "The

substantial risk standard requires us to determine if we have a

7 The Commonwealth argues that Filopoulos is distinguishable
because the judge in that case "specifically told [the jury]
that the Commonwealth need not prove the defendant's knowledge
as to the alleged victim's age." Filopoulos, 451 Mass. at 243.
This argument is unavailing. With or without the above-
referenced language, the instruction in the present case omitted
a required element of child enticement -- the defendant's intent
that the object of his advances be a child under the age of
fourteen. Thus, the error in the present case mirrors the error
in Filopoulos. See id. at 242-243.

13
serious doubt whether the result of the trial might have been

different had the error not been made" (quotation and citation

omitted). Id. "[T]o determine whether a substantial risk of a

miscarriage of justice is created by the omission of a required

element from the jury instructions, the question is . . .

whether the presence of the omitted element was an ineluctable,

or inescapable, inference from the evidence presented at trial."

Id. at 820.

Here, it was not an inescapable inference that the

defendant "intended the object of his advances to be a child

under the age of fourteen." Filopoulos, 451 Mass. at 243.8

While the evidence presented at trial "may have been sufficient

for the jury to infer" that the defendant had knowledge of the

victim's age or intended that she be under the age of fourteen,

such an inference was "hardly ineluctable." Desiderio, 491

Mass. at 821-822. The case hinged on a question of credibility,

and the evidence, while more than sufficient to survive a

required finding of not guilty, was not overwhelming. The

instruction lowered the Commonwealth's burden of proof and

created a risk that the jury would impermissibly find that the

Commonwealth had satisfied the element of the defendant's intent

8 We note that the jury acquitted the defendant on the count
of indecent assault and battery on a child under the age of
fourteen.

14
based on evidence that he believed the victim was under the age

of sixteen or based on the victim's stated age. We are thus

constrained, under Desiderio, to conclude that the error may

have materially influenced the jury's verdict, requiring that

the defendant's conviction be vacated.

3. Verdict slip. The defendant further claims that the

verdict slip "misstated the elements" of child enticement

because it "did not require [the jury] to find that [the

defendant] intended to entice 'a child under the age of 14.'"

Because the defendant did not object to the verdict slip that

was used, we review the claim of error for a substantial risk of

a miscarriage of justice. See Arias, 84 Mass. App. Ct. at 464.

The charge listed on the verdict slip read, "Enticing a

Child Under Age 16." We agree with the Commonwealth that the

charge correctly reflected the title of the statute under which

the defendant was charged. Standing alone, we discern no error

in the content of the verdict slip, and the defendant cites no

persuasive authority to the contrary. But see Commonwealth v.

McCarthy, 37 Mass. App. Ct. 113, 117-118 (1994) (appearance of

"an abbreviated version of the offense" on verdict slip did not

create substantial risk of miscarriage of justice where "the

judge correctly instructed the jury with respect to all of the

elements of the offense").

15
4. First complaint testimony. The defendant argues that

the judge admitted duplicative first complaint evidence,

resulting in a substantial risk of a miscarriage of justice.

Under the first complaint doctrine, evidence of the victim's

report of abuse is limited to "the first person told of the

sexual assault." Commonwealth v. Aviles, 461 Mass. 60, 67-68

(2011). "The first complaint doctrine does not, however,

'prohibit the admissibility of evidence that, while barred by

that doctrine, is otherwise independently admissible.'" Id. at

69, quoting Commonwealth v. Arana, 453 Mass. 214, 220-221

(2009). The judge designated the victim's cousin as the first

complaint witness.

The defendant challenges the admission of an excerpt of a

police report detailing parts of the victim's accusation, which

the trial judge read aloud to the jury due to the officer's

unavailability. The challenged portion of the report consists

of what the victim told the officer about the text messages she

received from the defendant. We discern no error in the

admission of the excerpt where it served an impeachment purpose

and was not admitted for the purpose of corroborating the

victim's testimony. The defendant had intended to call the

officer as a witness, and due to his unavailability, stipulated

to the content of the report in order to highlight

inconsistencies in the victim's testimony. Moreover, the

16
inclusion of the portion detailing the text messages ensured

that the jury was not left with the impression that the victim

had only reported the defendant touching her thigh, and thus it

was admissible as it "serve[d] to clarify the context of the

admitted portion" (quotation and citation omitted). Aviles, 461

Mass. at 75.

The defendant also challenges the admission of testimony

that the victim reported the incident to others. As the

Commonwealth concedes, much of the challenged testimony

constituted subsequent complaint testimony and should have been

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

(victim "should not have been allowed to testify" that she "told

various other people"). Even so, we discern no substantial risk

of a miscarriage of justice where the defendant solicited

additional testimony from the victim on cross-examination about

her subsequent reports of the allegation to others. See

Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010) ("the

defense capitalized on inconsistencies in [the victim's]

testimony during the cross-examination" which "inured to the

defendant's benefit"). The subsequent references to the

victim's complaints were brief, and the prosecutor did not use

the additional testimony in her closing argument. See

Commonwealth v. Roby, 462 Mass. 398, 409-410 (2012).

17
5. Prosecutorial misconduct. The defendant argues that

errors in the prosecutor's opening statement, direct

examination, and closing argument amounted to prosecutorial

misconduct. As the defendant did not object to the claimed

errors, our review is again limited "to determine if the

statements were error, and, if so, whether they created a

substantial risk of a miscarriage of justice." Commonwealth v.

Sanchez, 96 Mass. App. Ct. 1, 9 (2019).

During her direct examination, the prosecutor asked the

victim about how the defendant was related to the stepdaughter

and how he behaved around the stepdaughter and the victim. We

discern no error in this line of questioning. The victim's

brief testimony about the defendant's previous behavior was

relevant and admitted for the limited purpose of showing the

nature of the relationship between the victim and the defendant.

See Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006) (in

sexual assault cases, evidence of uncharged conduct "may be

admissible to give the jury a view of the entire relationship

between the defendant and the alleged victim").

We agree that the prosecutor erred in stating in her

closing argument that the jury "saw who this defendant is" and

"[t]hat is who he is as a person." Nonetheless, this error did

not rise to the level of creating a substantial risk of a

miscarriage of justice. The remarks were fleeting, and the

18
judge instructed the jury, before opening statements and in his

final charge, that opening statements and closing arguments are

not evidence.

Also in her closing argument, the prosecutor described the

victim as "emotionally scarred" and "brought [] to tears on the

stand." This argument was not improper. The prosecutor was

permitted to address the victim's demeanor during her testimony.

See Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999) ("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"). In addition, the judge instructed the jury to render

a verdict "based solely on a fair consideration of the

evidence," and that they "may not be swayed by prejudice nor by

sympathy." See Commonwealth v. Anderson, 445 Mass. 195, 209-210

(2005) (judge mitigated any potential prejudice by instructing

jurors, inter alia, "not to base their verdicts on any sympathy

or emotion").

Finally, there was no error in the prosecutor's reference

to first complaint testimony in her opening statement and

closing argument. During her opening statement, the prosecutor

told the jury that "at the close of the evidence you will have

no doubt what happened on [August 31, 2013] . . . . You will

19
also know, because you'll hear from [the first complaint

witness]" about "what [the victim] told her." This was an

accurate preview of the first complaint testimony that was later

admitted. See Commonwealth v. Qualls, 440 Mass. 576, 586 (2003)

("[t]he prosecutor could state in her opening statement anything

she reasonably, and in good faith, expected to prove"). There

was likewise no error in the prosecutor's comment in her closing

argument that the jury should consider the first complaint

testimony as supportive of the victim's credibility. The

purpose of first complaint testimony is to help the jury assess

the veracity of the victim's accusations. See Commonwealth v.

King, 445 Mass. 217, 219 (2005), cert. denied, 546 U.S. 1216

(2006). Furthermore, the judge instructed the jury on the

proper use of first complaint testimony, both at the time it was

admitted and at the close of the evidence.

Conclusion. The defendant's conviction of enticement of a

child under sixteen is vacated and the verdict is set aside.

So ordered.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.9),

Clerk

Entered: March 21, 2025.

9 The panelists are listed in order of seniority.

20