Commonwealth v. Ronnie Walker.

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-471

COMMONWEALTH

vs.

RONNIE WALKER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Ronnie Walker, appeals from his conviction

of aggravated rape of a child following a jury trial in the

Superior Court.1 Walker argues that the judge erred in admitting

first complaint testimony, which consisted of the victim's

disclosure to her mother of the rape, because the victim had

reported to her mother a week prior that she thought she might

have a sexually transmitted disease (STD), without additional

details. This prior report, Walker argues, should have

constituted the first complaint, so the evidence of the later

disclosure should not have been admitted. Walker also argues

1The defendant also appeals from the orders denying his
motion for reduction in verdict or for a new trial and his
motion for reconsideration.
that the judge erred in his instructions to the jury regarding

the definition of penetration.

As to the first complaint testimony, the judge did not err

in determining that the later disclosure was the first

complaint, considering that the victim's statement that she

thought she might have an STD was vague and did not constitute a

complaint that a sexual assault had occurred. Furthermore, the

definition of penetration that the judge used is the definition

approved by the Supreme Judicial Court. We accordingly affirm.

Background. Based on the evidence at trial, the jury could

have reasonably found the following. In the spring of 2020, the

victim was fifteen years old. The victim was friends with one

Wilson, a senior at her high school. At some point in the

spring of 2020 the victim and Wilson made plans to have sex.

In the spring of 2020 the defendant was fifty-five years

old, and he worked with Wilson. On the day of the offense, the

defendant drove Wilson to a road near the victim's house, and

picked up the victim there. The defendant then drove to his

cottage in Truro, which all three of them entered. Wilson and

the victim went to a bedroom in the back of the cottage; the

defendant remained in the living room in the front.

At some point, the defendant interrupted Wilson and the

victim by entering the bedroom. The victim was on the bed naked

from the waist down, and Wilson was next to her. The defendant

2
told them to continue what they were doing. When the defendant

walked in, the victim said "No." The defendant then walked

over, grabbed the victim's legs and spread them apart. He then

touched the victim's vagina with his mouth, and began sucking

the victim's vagina. The defendant also touched the victim's

vagina with his fingers, and may have also touched the victim's

buttocks. At some point the defendant stopped assaulting the

victim and left the room. All three parties then left the house

and entered the defendant's truck, and the defendant dropped the

victim off at home.

Walker was indicted on three counts of aggravated rape and

abuse of a child, G. L. c. 265, § 23A (b). At trial in 2022 the

Commonwealth moved in limine to admit first complaint testimony,

and the judge conducted a voir dire of the victim and the

victim's mother. The victim testified that in August of 2020,

she thought "something was . . . wrong" with her vagina, and

that "I thought like I got an STD or something." Her mother

testified that she made a doctor's appointment because the

victim "was worried that she had an infection or an STD."

Within a few days thereafter, the victim and her mother

drove to the doctor's office together. Before entering the

doctor's office, the mother asked why the victim thought she had

an STD. The victim testified that she was reluctant to talk

about what had occurred, but told her mother "that something had

3
happened" and "that an older guy . . . ate me out." The mother

testified that the substance of what the victim told her was

that a "big man" who was older "put his fingers in her" and "put

his face in her vagina."2

Following voir dire, the judge allowed first complaint

testimony regarding the conversation between the victim and the

mother in the car prior to entering the doctor's office. The

first complaint testimony at trial was consistent with the voir

dire testimony. The mother testified that the victim told the

mother that "an older man, somebody that [the mother] knew, put

his mouth on her vagina and stuck his fingers inside of her.

And she thought she might have an STD."

The jury convicted the defendant of one count of aggravated

rape and abuse of a child ("[m]outh in contact with vagina"),

and acquitted him on the other two counts ("[f]inger in anus"

and "[f]inger in vagina").

Discussion. First complaint. The defendant argues that

the trial judge erred by allowing first complaint testimony from

the victim and the victim's mother as to the conversation

between them in the car. The defendant argues that this

conversation was not the victim's first complaint of sexual

2 The mother testified that the victim was describing
"Ronnie" based on the description the victim gave. The
defendant was a customer at the store where the mother worked.

4
assault, and accordingly that testimony regarding this

conversation was inadmissible. See Commonwealth v. Arana, 453

Mass. 214, 222-223 (2009) ("in circumstances where a complainant

makes successive complaints to the first complaint witness, the

initial complaint is the only evidence admissible as first

complaint"). Instead, the defendant claims, the victim's

statement to her mother a week before the appointment, to the

effect that she thought she had an STD, was the first complaint.

The defendant further argues that the admission of the later

conversation prejudiced him by improperly bolstering the

credibility of the victim.

We review a judge's decision to admit first complaint

testimony under the abuse of discretion standard. Commonwealth

v. Aviles, 461 Mass. 60, 73 (2011). In doing so, we recognize

that "[t]he judge who is evaluating the facts of a particular

case is in the best position to determine the scope of

admissible evidence, keeping in mind the underlying goals of the

first complaint doctrine, our established first complaint

jurisprudence, and our guidelines for admitting or excluding

relevant evidence." Id. We perceive no abuse of discretion

here.

Our case law does not require judges to limit first

complaint testimony to the victim's first intimation of sexual

assault, however vague. This issue first arose in Commonwealth

5
v. Murungu, 450 Mass. 441, 443-444 (2008), in which the underage

victim, while crying, showed the defendant's sister marks on the

victim's neck and said she was "scared" and "didn't know what to

do." In determining whether this statement was the first

complaint, the court held that another person, other than the

very first person informed of the assault, may testify as a

first complaint witness when "the encounter that the victim has

with the first person does not constitute a complaint, when, for

example, the victim expresses to that person unhappiness, upset

or other such feelings, but does not actually state that she has

been sexually assaulted." Id. at 446. The court explained that

to hold otherwise would undermine the doctrine of first

complaint, as "[t]estimony of a vague conversation that does not

'complain' that a sexual assault occurred . . . may communicate

to the jury that the victim in fact did not complain at all and

that, if she had indeed been assaulted, she would have

complained with more force and in greater detail." Id. In

Murungu, however, the court found that it was not an abuse of

discretion for the trial judge to find that the victim's sister

qualified as the first complaint witness, as the judge could

have decided the marks on the victim's neck "were not conferred

with the consent of the victim because of her anguish in

displaying them." Id. at 447.

6
Subsequently, the standard set out in Murungu has been

applied to find that a later statement by the victim was the

first complaint of sexual assault. For example, in Commonwealth

v. Rivera, 83 Mass. App. Ct. 581, 582-583 (2013), a victim first

disclosed to her sister that she had suffered physical abuse

from her boyfriend, the defendant; she did not disclose sexual

abuse to her sister, however, until after the defendant was

forced to leave their shared apartment. The court held that the

victim's initial disclosure of physical abuse did not render her

subsequent complaint of sexual abuse inadmissible. See id. at

584.

In this case, as in Rivera, the victim did not make a

complaint of sexual assault the week before the appointment;

that is, she did not "state that she [had] been sexually

assaulted." Murungu, 450 Mass. at 446. See Rivera, 83 Mass.

App. Ct. at 584. Instead, she stated that she thought she might

have an STD. This "vague" statement "that does not 'complain'

that a sexual assault occurred" does not prevent the judge from

admitting evidence of the victim's subsequent complaint of rape

a week later. Murungu, supra.

Furthermore, allowing only the victim's statement that she

had an STD, and not her complaint of rape a week later, would

not comport with the purposes of the first complaint doctrine.

Those purposes are twofold: (1) to "refute any false inference

7
that silence is evidence of a lack of credibility on the part of

[sexual assault] complainants"; and (2) "to give the jury as

complete a picture as possible of how the accusation of sexual

assault first arose." Aviles, 461 Mass. at 72, quoting

Commonwealth v. King, 445 Mass. 217, 243, 247 (2005), cert.

denied, 546 U.S. 1216 (2006). Limiting the testimony of the

victim's mother only to the victim's reference to a possible STD

could suggest, falsely, that the victim had stayed silent about

the rape. Furthermore, preventing the jury from hearing the

victim's complaint of rape would leave the jury "to speculate on

the evidence or to draw erroneous inferences due to incomplete

information." Aviles, supra.

The defendant argues that because the victim was fifteen at

the time, and thus incapable of consenting to sexual

intercourse, any statement to her mother that she thought that

she had an STD was tantamount to a complaint of statutory rape.

See Commonwealth v. Wilbur W., 479 Mass. 397, 398 (2018). But

the judge did not abuse his discretion by determining that the

victim's initial report of a possible STD or infection was not a

complaint of sexual assault, where the victim provided no

further details at the time. Compare Murungu, 450 Mass. at 443-

444, 447 (holding that it was not abuse of discretion to admit

first complaint testimony that thirteen year old victim was

crying, showed first complaint witness marks on her neck, and

8
said she was "scared" and "didn't know what to do" where on

basis of evidence presented, "the judge could permissibly have

decided that the marks were not conferred with the consent of

the victim because of her anguish in displaying them").3

Jury instruction. The defendant also argues that the

judge's instructions to the jury on the element of sexual

intercourse were in error, and created a substantial risk of a

miscarriage of justice. Specifically, in his instructions the

judge defined sexual intercourse, in part, as follows:

"Either natural or unnatural sexual intercourse is complete
on penetration, no matter how slight, of a person's genital
or anal opening.

"In addition to the vagina, the female genital opening
includes the anterior parts known as the vulva and labia.
Penetration into the vagina itself is not required. Rape
can be found if the Defendant's lips came into contact with
the victim's vagina, vulva or labia."

The defendant argues that the definition of the "female

genital opening" is anatomically incorrect and does not comport

3 Commonwealth v. Asenjo, 477 Mass. 599 (2017), is not to
the contrary. In Asenjo, the victim made multiple disclosures
of rape, only the last of which implicated the defendant. See
id. at 602. The issue before the court was whether that last
disclosure should be considered the first complaint, on the
grounds that it was the first complaint in which the defendant
was identified. See id. at 603. The court ruled that the first
complaint doctrine did not require that the complainant identify
the defendant as a prerequisite to admissibility, and thus the
last disclosure should not have been admitted. See id. Here,
in contrast, the victim's report of an STD not only did not
identify the defendant, but also did not disclose "actual sexual
assault"; it accordingly was not the first complaint. Id.,
quoting Murungu, 450 Mass. at 446.

9
with the common law. However, the definition used by the judge

in this case has been specifically affirmed by the Supreme

Judicial Court. See Commonwealth v. Donlan, 436 Mass. 329, 336

(2002) ("the element of penetration required for a rape

conviction is established by evidence that [the defendant]

touched or came into contact with the victim's vagina, vulva, or

labia"). The judge did not err in his instructions as to

penetration.

Judgment affirmed.

Orders dated October 18,
2023, and January 10, 2024,
affirmed.

By the Court (Henry,
Desmond & Englander, JJ.4),

Clerk

Entered: March 27, 2025.

4 The panelists are listed in order of seniority.

10