COMMONWEALTH v. DOMINIC D., a Juvenile.

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-89

COMMONWEALTH

vs.

DOMINIC D., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After trial in the Juvenile Court, a jury found the

juvenile defendant delinquent of rape of a child with force and

two counts of indecent assault and battery. On appeal, the

juvenile contends that he was denied a fair trial due to various

evidentiary rulings, certain jury instructions, and the

prosecutor's closing argument. We affirm.

Background. The victim met the juvenile in middle school

when she was in the sixth grade. The two began dating the

following summer, hanging out with friends, watching sports, and

playing games.

In the spring of 2019, when the victim was thirteen years

old, the juvenile came over to the victim's house where she was
babysitting her nieces and nephew. The victim told the juvenile

to stay with the kids in the living room while she went to a

bedroom to retrieve a television remote control. After grabbing

the remote control, the victim turned around to find the

juvenile "just there." He began kissing and touching her all

over her body. She said "no," but he persisted. She told him

that she did not want to do anything and that she was going to

go into the living room and put on a movie for the kids.

While facing the victim, the juvenile pushed her onto the

bed and got on top. He then flipped her over so that she was

face down on the bed and grabbed her two hands above her head.

She was wearing sweatpants or leggings, which he pulled down

before his penis entered her vagina. The victim felt that she

could not scream because it would attract the attention of the

children. Instead, she tried to physically free herself from

the juvenile's grip as he held on to her hands with one hand and

to her hips with the other. After he ejaculated, he asked what

he should do, referring to cleaning up. He then grabbed a sock,

belonging to the victim's young niece, and wiped himself. The

victim told the juvenile to call his father to pick him up, and

he did.

Afterwards, the juvenile told the victim that he did not

know why he did what he did, he did not know what had overtaken

him, and that he was sorry. The juvenile also told the victim

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that, if she told anyone about what had happened, he would kill

himself. Afraid that he would hurt himself and that she would

be to blame, the victim continued in a relationship with the

juvenile. Subsequently, when the victim would say that she

needed to separate from him, to be left alone, the juvenile

would say that he would kill himself if the victim left him.

Later, in June 2019, the victim went to an after-school

dance, followed by a game of "manhunt," an outdoor hide-and-seek

game in the dark, with some friends around her house.

Afterwards, the victim invited a couple of her best friends to

sleep over. That night, sitting on the kitchen floor, the

victim told her friends that the juvenile had forced her to have

sex with him and she explained to them how it had happened. The

friends told the victim that she had to break up with the

juvenile. In the presence of her friends, the victim then had a

videocall with the juvenile and told him that she was breaking

up with him because of what he had done to her. The juvenile

hung up. The victim called back because she was worried about

him. In the subsequent videocall, the juvenile was crying,

saying he had a knife and that he was going to kill himself.

Afraid that the juvenile would harm himself, the victim

continued to keep in contact with him.

Discussion. 1. First complaint. Prior to trial, the

judge conducted a voir dire and determined that one of the

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victim's best friends would be designated as the first complaint

witness; this witness would later testify as the last witness in

the Commonwealth's case. The Commonwealth's first witness was a

police detective who served as a school resource officer at the

middle school attended by the victim. When the prosecutor

referenced a date on which the detective spoke with the victim

at school, defense counsel objected, arguing that the expected

testimony would constitute a subsequent first complaint. The

prosecutor clarified that she would not elicit the substance of

the conversation but only the detective's observations of the

victim, to which defense counsel responded that such

observations were irrelevant and prejudicial. The trial judge

overruled the objection. On appeal, the juvenile contends that

the judge erred by admitting subsequent first complaint

testimony. We discern no prejudicial error.

First complaint testimony is that which relates a sexual

assault victim's first disclosure regarding the assault. See

Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert.

denied, 546 U.S. 1216 (2006). See also Mass. G. Evid. § 413(a)

(2025). In addition to the victim, only one other witness may

testify to the victim's first complaint of the sexual assault.

See King, supra at 219. Unless a law enforcement officer is the

first complaint witness, an officer will not ordinarily testify

to the complaint. Id. at 243. An officer's testimony may,

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however, include or imply a victim's complaint of sexual assault

if it serves some purpose other than to corroborate the victim's

testimony and its probative value outweighs its prejudicial

effect. See Commonwealth v. Dargon, 457 Mass. 387, 399-400

(2010). See also Mass. G. Evid. § 413(b).

Here, the police detective witness testified that she was

at the middle school at about 9 A.M. in mid-November 2019, when

she had a conversation with the victim within an administrative

office. The detective described the victim as "visibly upset.

She was crying. She was looking down. Like, wringing of the

hands. Just obviously . . . visibly upset." After speaking

with the victim, the detective contacted the victim's parents,

wrote a report, and referred the matter to another agency. She

interviewed individuals identified by the victim including her

two best friends. The victim later provided to the detective by

e-mail certain communications -- Snapchat messages and text

messages -- between the victim, her two friends, and the

juvenile. The detective turned over the communications to the

District Attorney's office.

The detective did not mention the substance or even the

topic of conversation she had with the victim. Rather, her

testimony served to explain to the jury the general course of

the investigation and specifically how the police obtained the

communications which were later submitted into evidence. See

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Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 276 (2021)

(detective's testimony regarding evidence obtained from victim

during interview did not violate first complaint rule as it

served to lay foundation for physical evidence). Moreover, the

testimony served to forestall a Bowden defense, see Commonwealth

v. Bowden, 379 Mass. 472, 485-486 (1980), one which defense

counsel explicitly stated that he was considering pursuing. See

Hoime, supra (detective's testimony that investigation ceased

because it was too emotional for victim, but that investigation

resumed several months later after victim reengaged, did not

violate first complaint rule as it served to meet anticipated

defense).

Likewise, testimony regarding the victim's demeanor was

relevant to rebut the juvenile's defense, foreshadowed in his

opening statement, that the victim had fabricated the rape. See

Commonwealth v. Santos, 465 Mass. 689, 700-701 (2013) (testimony

regarding victim's demeanor from witness who was not designated

first complaint witness did not constitute complaint testimony

and was relevant to rebut defense theory that event was

fabricated). That the jury might infer that the victim reported

the sexual assault to the detective at that time did not convert

the detective's otherwise admissible testimony into an

inadmissible subsequent complaint. See Commonwealth v. Arana,

453 Mass. 214, 228-229 (2009) (first complaint doctrine not

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intended as shield to bar jury from fair picture of

Commonwealth's case).

The purpose of the limitation of a single first complaint

is not to hide the fact that the victim ever spoke of the

assault again; rather, it is to minimize the risk of unfair

bolstering of the victim's testimony and of prejudice to the

defendant by avoiding repetition of the details of the assault.

See King, 445 Mass. at 243. Here, the detective's testimony did

not express any belief in the victim's complaint or disclose any

details of the assault. See Commonwealth v. McCoy, 456 Mass.

838, 851-852 (2010) (defendant not prejudiced by erroneous,

cumulative first complaint testimony where no witness expressed

belief in victim's claims and no one other than designated first

complaint witness disclosed details of allegations). Given the

valid purposes for offering the detective's testimony and the

fact that no complaint was actually disclosed, there was no

violation of the first complaint rule and no abuse of discretion

in allowing the detective's testimony.

To the extent that there was any error in the admission of

the detective's testimony, however, it was nonprejudicial. This

is not a case where the Commonwealth unduly emphasized its

investigation of the victim's complaint, thereby creating "the

imprimatur of official belief in the [victim]." Commonwealth v.

Stuckich, 450 Mass. 449, 457 (2008) (evidence of numerous

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reports and interviews involving multiple agencies and detailed

testimony concerning each process was "extremely prejudicial").

The Commonwealth made no mention of any interview with the

victim; it was defense counsel who introduced the fact that the

victim was later interviewed (by someone other than the

detective) about the rape. Moreover, the detective's testimony

was brief and general, spanning less than ten pages of

transcript, and she was the first witness in a trial that

spanned two days. Finally, the substance of the testimony

served only to expose what was implicit in the fact that the

juvenile was charged and brought to trial.

2. Cross-examination. Prior to trial, the Commonwealth

moved in limine to exclude evidence of bad character, bad

reputation, and bad acts of the victim. The juvenile had no

objection to the motion, and the judge allowed it. At trial,

defense counsel cross-examined the detective, referencing the

demeanor testimony, and asked her, "When you got to the school

that day, were you also made aware that [the victim] had been

using some racial language[?]" The question drew an objection

from the prosecutor on the basis that it violated the court's

ruling barring bad act evidence of the victim. Defense counsel

explained that the detective's demeanor testimony "opened the

door" to allow in evidence that there may have been some reason,

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other than the implied rape disclosure, that the victim appeared

emotionally upset; the judge sustained the objection. 1

On appeal, the juvenile contends that the judge's ruling

infringed his right to confrontation by unduly limiting cross-

examination. The right to confrontation is not absolute, and

the scope of cross-examination rests largely in the discretion

of the trial judge. See Commonwealth v. Jacques, 494 Mass. 739,

746 (2024). In determining whether the juvenile's right to

confrontation has been infringed by unreasonable limitation on

cross-examination, we weigh the materiality of the witness's

direct testimony and the degree of the restriction on cross-

examination. See id.

Here, the witness testified briefly and generally about the

course of the investigation leading up to the collection of

communications which was submitted into evidence at trial. Her

testimony did not concern the substance of the crime. The

materiality of the direct testimony was thus limited. The

restriction on cross-examination was likewise limited. As

agreed to by all at the outset of the case, the parties were

prohibited from introducing bad act evidence relating to the

victim. When defense counsel explained that she wanted to raise

the racial slur issue to point out an alternative reason that

1 The juvenile also moved for a mistrial, which was denied,
but he does not raise that issue on appeal.

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the victim may have been emotionally upset, the judge made

"crystal clear" that "the only . . . line of questioning not

allowed" was "anything having to do with the racial issue."

Thus, defense counsel was not prohibited from exploring the

line of inquiry, only from doing so in a fashion that injected

race into the case. There was ample available evidence that the

victim had other reasons to be emotionally upset, and any of

those reasons could have been used for the same line of inquiry.

For example, the victim testified to her concern over the family

having two court cases and her parents trying to gain custody of

her sister's children. Her text messages reflected that she

felt extreme pressure from her parents to the point that she

wanted "to cut again," and that she had depression and anxiety.

Defense counsel otherwise had full range of cross-

examination, and she took advantage of it. She raised an issue

of bias with the detective by pointing out the detective's

relationship with the victim's father. Although counsel

declined to cross-examine the first complaint witness, she

challenged the victim's credibility by pointing out that the

victim had given several different timeframes for when the rape

occurred, she had failed to provide certain post-breakup text

messages to the police, she likened her experience to that of a

fictional character in a movie, and she continued in a

relationship with the juvenile after the rape took place. There

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was no abuse of discretion in this narrow limitation of cross-

examination.

3. Limiting instruction. Prior to trial, defense counsel

requested that a limiting instruction on the use of first

complaint testimony be given at the time of the victim's

testimony as well as at the time of the testimony of the first

complaint witness. The judge declined to give the instruction

at the time of the victim's testimony on the ground that it

might confuse the jury. 2

At trial, after the victim testified regarding the details

of the rape, she related that the first time she disclosed the

rape to anyone was in June 2019 when her two best friends spent

the night at her house. Following the victim's testimony, the

judge gave a limiting instruction on first complaint evidence,

as an introduction to the first complaint witness whose

testimony followed the victim's testimony. The limiting

instruction on first complaint evidence was given again during

the final charge to the jury.

On appeal, the juvenile contends that the judge committed

prejudicial error in declining to give a limiting instruction at

the time of the victim's testimony about the complaint. Even

2 We note that the model instruction, taken from King, 445
Mass. at 247-248, appears to contemplate that the instruction
will be given in relation to the first complaint witness, not
the victim.

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assuming error, it was nonprejudicial. See Commonwealth v.

Lewis, 91 Mass. App. Ct. 651, 663 (2017) (although

contemporaneous limiting instruction on first complaint

testimony recommended, it is "not a strict requirement"

[citation omitted]). The limiting instruction was given

immediately after the victim's testimony, as well as in the

final instructions, both of which occurred on the same day. The

instructions informed the jury that testimony regarding a

victim's first disclosure of sexual assault is admitted for the

limited purpose of assisting the jury in its credibility

determinations by allowing the jury to consider whether the

disclosure supports or detracts from the victim's testimony

about the crime. Because the limiting instruction on first

complaint testimony was twice given, in close temporal proximity

to the relevant testimony, the failure to give it during the

victim's testimony was not prejudicial. Contrast Commonwealth

v. Cruz, 98 Mass. App. Ct. 383, 389-390 (2020), and Commonwealth

v. Haggett, 79 Mass. App. Ct. 167, 172-173 (2011), both cases in

which there was no first complaint witness, but the victim

testified to making multiple disclosures without any limiting

instruction at trial.

4. Other bad acts. Prior to trial, the Commonwealth moved

to introduce certain bad acts of the juvenile to show the

hostile nature of his relationship with the victim. See

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Commonwealth v. Linenkemper, 104 Mass. App. Ct. 467, 472 (2024)

(in assault case, bad act evidence admissible to show hostile

nature of relationship between defendant and victim who were

romantically involved). The prosecutor stated that the evidence

would come in largely through the victim's testimony but that

there were also text messages. Defense counsel objected "for

the record," stating that she also had text messages that would

arguably contradict the victim's account of the nature of their

relationship. The judge allowed the motion to admit the

evidence generally, stating that the ruling was subject to how

the evidence came in and any other objections made at that time.

At trial, the victim testified to two instances when the

juvenile persisted in groping her after she requested he stop.

Additionally, two messages between the juvenile and the victim

were admitted into evidence. One was a Snapchat message in

which the juvenile said that he was sorry for putting his hand

back on her after she had moved it away. The other was a text

message in which the juvenile apologized for touching her and

putting his hand back after she had moved it away. The victim

stated that each message related to a separate incident, and

that both had occurred prior to the rape.

On appeal, the juvenile faults the trial judge for failing

to restrict the number of bad acts addressed and the amount of

detail elicited, yet defense counsel made no such objection

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during the hearing on the motion in limine or at trial. A trial

judge has broad discretion in admitting bad act evidence. See

Commonwealth v. Facella, 478 Mass. 393, 407 (2017). Here, the

victim related two instances during the relationship where the

juvenile continued to touch the victim after she refused his

advances. In each instance, the juvenile later apologized and

promised not to do it again. The bad act evidence was

characterized as touching without permission and failing to

respect boundaries. The nature of the bad acts and the level of

detail given in no way overwhelmed the evidence of the rape.

Cf. Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006) (victim

testified to seven uncharged sexual assaults and described each

in detail). There was no abuse of discretion.

The juvenile also faults the judge for failing to give a

sua sponte contemporaneous instruction limiting the use of the

bad act evidence. But a trial judge is not required to give

such a limiting instruction without a request. See Commonwealth

v. Peno, 485 Mass. 378, 395-396 (2020) (timing of limiting

instructions ultimately at discretion of judge). Here, the

judge did instruct the jury in the final charge that any

evidence presented concerning other bad acts was not to be used

as proof that the juvenile had a criminal personality or bad

character, or as a substitute for proof that the juvenile

committed the crime charged, or to conclude that if he committed

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other bad acts he must have committed the charged crime.

Moreover, the prior bad acts were referenced appropriately in

closing, with the prosecutor arguing that they demonstrated the

manipulative nature of the juvenile's relationship with the

victim. We discern no abuse of discretion from the lack of a

sua sponte contemporaneous limiting instruction. See Peno,

supra at 396 (where no limiting instruction on bad act evidence

requested or given, instruction in final charge sufficient).

5. Hearsay. The juvenile complains of the "volume and

weight" of "improper hearsay" admitted, however there was no

objection at trial, so we review for a substantial risk of a

miscarriage of justice. See Commonwealth v. McCoy, 456 Mass.

838, 850 (2010). The statements complained of include the

victim's testimony and text messages to the effect that (1) she

told the juvenile that she was breaking up with him because of

what he did to her, (2) the juvenile threatened to hurt or kill

himself if the victim told anyone or if she broke up with him,

and (3) she told the juvenile that she did not have any friends

anymore because of him.

Hearsay is an extrajudicial statement offered to prove the

truth of the matter asserted. See Commonwealth v. Cohen, 412

Mass. 375, 393 (1992); Mass. G. Evid. § 801 (2025). It is

generally inadmissible unless allowed by another evidentiary

rule. See Commonwealth v. Markvart, 437 Mass. 331, 335 (2002);

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Mass. G. Evid. § 802 (2025). The challenged statements do not

constitute hearsay because they were not offered to prove the

truth of the matter asserted. In other words, the statements

were not offered to prove the real reason that the victim broke

up with the juvenile, or to prove that the juvenile in fact

intended to hurt or kill himself, or to prove that the victim

actually had no friends because of the juvenile.

Rather, the statements were offered to explain the victim's

delay in reporting the rape (concern that the juvenile might

hurt or kill himself), the circumstances in which she first

disclosed the rape (after feeling isolated, she saw an

opportunity to confide in her friends following a school dance),

and the reason that she continued to be in contact with the

juvenile after the rape (his continued threats of self-harm).

All of these statements were properly admitted. See King, 445

Mass. at 245-246 (under first complaint doctrine, victim may

testify as to circumstances of complaint, why it was made at

particular time to particular person, as relevant to victim's

credibility). See also Arana, 453 Mass. at 225 (evidence of

victim's state of mind or behavior following crime has long been

admissible if relevant to contested issue in case, like whether

rape was fabricated). There was no error in the admission of

the challenged testimony.

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6. Closing argument. The juvenile argues that the

prosecutor's comment in closing argument that the victim was

"very honest" constituted improper vouching. As there was no

objection at trial, we review for a substantial risk of a

miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass.

781, 788 (2011). Improper vouching occurs when an attorney

expresses a personal belief in the credibility of a witness or

indicates knowledge independent of evidence before the jury.

See Commonwealth v. Muller, 477 Mass. 415, 433 (2017). Viewed

in context of the entire closing, it is evident that the

prosecutor was not expressing her personal belief or indicating

extrajudicial knowledge of the situation. See Commonwealth v.

Kapaia, 490 Mass. 787, 801 (2022) (challenged statements in

closing viewed in context of entire argument).

After acknowledging the juvenile's theory that the victim

must have fabricated the rape because she continued to be in

contact with him afterwards, the prosecutor stated,

"So, when you ask yourself why is there a video of [the
victim] with her rapist on a couch after it happened, and
'it' being the incident in the bedroom, and why she
continued to message him on Snapchat, I want you to think
about that because [the victim] was very clear and very
honest and forthcoming while answering her questions as to
why that was taking place. She did not want to carry the
weight and the responsibility of someone that she
admittedly on the stand said she liked. And, in the
meantime, she was getting hurt."

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The prosecutor was arguing that the victim should be

believed based on how she comported herself on the witness stand

as well as because she expressed care and concern for the

juvenile, even though he had raped her. Cf. Muller, 477 Mass.

at 433 (prosecutor's statement that witness was "a very moving

witness, a very candid and honest witness" deemed proper in

context); Commonwealth v. Sanders, 451 Mass. 290, 297 (2008)

(prosecutor's statement that witness was "absolutely honest"

deemed proper); Commonwealth v. Leary, 92 Mass. App. Ct. 332,

338 (2017) (prosecutor's statement "that was him being honest"

deemed proper). The statement was not improper vouching but

rather proper argument on credibility.

Adjudications of delinquency
affirmed.

By the Court (Ditkoff,
Singh & Smyth, JJ. 3),

Clerk

Entered: December 24, 2025.

3 The panelists are listed in order of seniority.

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