Commonwealth v. Juan Almodovar.

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

25-P-105

COMMONWEALTH

vs.

JUAN ALMODOVAR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Juan Almodovar, was convicted of two counts of rape

of a child, aggravated by age difference, G. L. c. 265,

§ 23A (b); incest, G. L. c. 272, § 17; and two counts of

indecent assault and battery on a person fourteen or over, G. L.

c. 265, § 13H. On appeal, he contends that the trial judge

erred by (1) allowing the victim's unexpected testimony about an

unindicted prior bad act; (2) admitting Facebook messages in

evidence without sufficient authentication; and (3) admitting

the victim's medical records in evidence. We affirm.

Background. The victim is the defendant's younger half-

sister. They share the same mother, but the defendant is
roughly twenty years older than the victim. The victim was

seventeen years old at the time of the defendant's trial.

The victim and the defendant had a close relationship as

she was growing up. In early 2015, the victim was fourteen

years old, and the defendant was thirty-three. At that time,

the defendant lived with his wife and children in a different

part of town, but he frequently visited the victim at the home

she shared with their mother; he often spent the night. The

victim testified that she saw the defendant at least once a week

in 2015, and that they sent text messages to each other more

often than that. Specifically, the parties communicated via the

Facebook Messenger app. She often went to him for advice, and

she looked up to him as a sort of father figure.

On April 13, 2015, the victim stayed home from school with

the flu. The victim's other siblings had gone to school, and

her parents left the house in the late morning to go grocery

shopping. Her uncle, who was living with her family at the

time, was in the basement. The defendant was sitting with the

victim while she caught up on schoolwork in the kitchen. After

a while, the defendant kissed the victim on the lips and told

her, "That's how you kiss a real man." The victim was shocked

by this, and she didn't say anything. The defendant then led

the victim upstairs to her bedroom where she ended up lying on

her back on a mattress on the floor. The defendant proceeded to

2
vaginally rape the victim while she lay there crying.

Afterwards, the defendant said "Round one is done," pulled up

his pants, and left the room.

At first, the victim did not tell her parents about the

assault. Instead, the victim told a trusted adult at her

church, who said she would call the police. The victim asked

her not to do that and said that she would "handle it

[her]self." The victim returned to school the next day, and her

mother came to pick her up at the end of the day. The victim

believed that her mother would not support her if she accused

her brother of assault. Therefore, in order to avoid tension in

her family, she decided not to report it to the police.

A few days after the assault, on April 16th, the victim

sent the defendant a Facebook message around 9 A.M. saying, "I

dont think we can do this anymore." The victim testified that

this message was referring to "what [the defendant] did to

[her]." The defendant responded, "Ok are you okay" and the

victim replied, "Yea im fine thx." The defendant then wrote, "I

hope you don't be different with me" and "I Don't want to lose

my sister." Later in the day, the defendant messaged the victim

again and said "What happened what is that I did" and "Mommy

just called me and told me something crazy." He continued

messaging the victim, stating that he was being accused of

something and asking her what was going on.

3
After school that day, an investigator from the Department

of Children and Families (DCF) came to the victim's home to

respond to an allegation of abuse. The victim's mother was

uncooperative during this visit, screaming at the investigator

and the police who accompanied her, and initially refusing to

let them into the house. The victim testified that her mother's

refusal to cooperate with the DCF investigator reinforced the

victim's decision not to pursue the case.

That night, around 11 P.M., the victim replied to the

defendant on Facebook Messenger and said, "The thing is goin

good so far cause i said nothn happened and we all said nothn

. . . and so all that is left is tomorrow exam, and she said I

do[n't] have to do the full part thing . . . ." The victim

later testified that she was referring to a sexual assault

examination. The defendant replied, "Thank you I'm sorry for

being such a piece of shit I'll never do anything like that

again" and "I love you sis thank you I can't say it enough."

The next day, the victim went to the hospital for a sexual

assault examination. The victim was accompanied by her mother

and her cousin. A DCF investigator met them at the hospital.

Prior to the hospital visit, the victim had already spoken to

her mother and decided that she was not going to cooperate with

the sexual assault examination. At the hospital, the victim's

mother yelled, made threats, and refused to give consent for the

4
victim to be examined. Security had to remove her from the

premises. Eventually, the victim went into an examination room

and saw a doctor, alone.

The victim did not allow the doctor to conduct a sexual

assault examination. That afternoon, the defendant messaged the

victim to ask, "How everything went," and "Did you take the

test[?]" She replied "Nah i didnt have to." After the hospital

visit, the victim told her family that she had been lying about

the assault. As a result, "there wasn't as much tension" in her

home. Her mother was "more at ease" and "everything was calm."

Roughly a year later, in 2016, the victim's foster mother took

her to the hospital. At that visit, she allowed a doctor to

complete a physical examination but refused a genital

examination due to anxiety.

At the defendant's trial, the victim unexpectedly testified

to unindicted conduct while describing the assault. The

prosecutor asked "So then what happened next?" The victim

testified that the defendant "flipped me over and put his penis

into my butt." Defense counsel immediately objected to this

testimony. After a brief sidebar,1 the trial judge instructed

1 Although the victim had initially disclosed an anal rape,
she had not testified to being anally raped in the grand jury
proceeding, and so the Commonwealth had not pursued an
indictment for that conduct.

5
the jury: "Ladies and gentlemen, that last bit of testimony

regarding the penis in the anus is not charged conduct in this

case. It's not for you to consider. It's not indicted. So the

testimony will stand, but it's not to be considered, all right?

Thank you." The defendant did not object to that instruction.

During his final instructions, the judge reiterated that any

testimony that he told the jury to disregard is "not evidence."

Discussion. 1. Curative instruction. The defendant

asserts that the judge improperly allowed the victim to give

inadmissible bad act testimony that the defendant "put his penis

into [her] butt." In fact, the victim's testimony to that

effect was an unexpected answer to the prosecutor's question,

"what happened next?" In short, the judge did not allow the

testimony. Trial counsel objected, and the judge responded

swiftly, instructing the jury not "to consider" the victim's

"testimony regarding the penis in the anus."

The defendant also argues that this instruction did not

cure the error because it was internally inconsistent. The

defendant did not object to the instruction at trial.

Accordingly, we review for a substantial risk of a miscarriage

of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587

(2005) (while objection generally preserves right of appeal,

when objection is followed by curative instruction and defendant

does not object to instruction, any error is reviewed for

6
substantial risk of miscarriage of justice). This standard

"requires us to determine if we have a serious doubt whether the

result of the trial might have been different had the error not

been made" (quotation and citation omitted). Commonwealth v.

Azar, 435 Mass. 675, 687 (2002).

"[I]n response to the jury's exposure to inadmissible

evidence, the judge may correctly rel[y] on curative

instructions as an adequate means to correct any error and to

remedy any prejudice to the defendant" (quotation and citation

omitted). Commonwealth v. Torres, 86 Mass. App. Ct. 272, 280

(2014). Jurors are presumed to have followed a judge's

instruction to disregard evidence. See Commonwealth v. Durand,

475 Mass. 657, 669 (2016). "Generally, provided the

instructions are reasonably prompt and the jury do not hear the

inadmissible evidence again, the error will be considered

cured." Commonwealth v. Roe, 90 Mass. App. Ct. 801, 804 (2016).

Here, although the judge's instruction deviated from the

standard instruction, it prevented a substantial risk of a

miscarriage of justice. Immediately after the victim gave the

inadmissible testimony, the judge instructed the jury not "to

consider" it. He then stated that the testimony "will stand,"

but reiterated that it was "not to be considered." The

prosecutor did not elicit any more testimony about the uncharged

conduct, and the judge explained during his final instructions

7
that anything he told the jury to disregard is "not evidence."

Given the strength of the Commonwealth's case, the fact that the

improper testimony was very brief, and that the judge

immediately reacted to the improper testimony by instructing the

jury, twice, not to consider it, neither the improper testimony

nor the judge's statement that it would "stand" created a

substantial risk of a miscarriage of justice. See Beaudry, 445

Mass. at 588.

2. Message authentication. Next, the defendant argues

that the April 2015 Facebook messages were not sufficiently

authenticated and thus, the judge erroneously admitted them.2 We

review a judge's evidentiary ruling for abuse of discretion, and

will affirm it unless the judge made a clear error of judgment

"such that the decision falls outside the range of reasonable

alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

"The requirement of authentication . . . as a condition

precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its

proponent claims." Commonwealth v. Purdy, 459 Mass. 442, 447

2 The judge denied the defendant's motion in limine to
exclude these messages on authentication grounds. He did,
however, allow the defendant's motion in limine to exclude
another batch of Facebook messages from June 2015, finding them
more prejudicial than probative.

8
(2011), quoting Mass. G. Evid. § 901(a) (2011). "[B]ecause the

relevance and admissibility of the communications depended on

their being authored by the defendant, the judge was required to

determine whether the evidence was sufficient for a reasonable

jury to find by a preponderance of the evidence that the

defendant authored the [messages]." Purdy, supra. There is no

requirement that there be direct evidence that a digital

communication was sent by the defendant; a judge may "look to

'confirming circumstances,'" such as a message's specific

content, personal references, or familiar tone, to make such a

ruling. Id. at 449. See Commonwealth v. Gilman, 89 Mass. App.

Ct. 752, 758-759 (2016); Commonwealth v. Oppenheim, 86 Mass.

App. Ct. 359, 368 (2014).

Here, as in Purdy, 459 Mass. at 458, there was no direct

evidence that the defendant authored the Facebook messages. And

the fact that the messages originated from "a social networking

Web site such as Facebook . . . that bears the defendant's name

is not sufficient alone to authenticate the electronic

communication as having been authored or sent by the defendant."

Id. at 450. Still, in this case, there were "adequate

'confirming circumstances'" to meet the threshold for

authentication. Id. The specific content and tone of the

messages was sufficient to support a reasonable conclusion that

the defendant authored the messages. The messages reflect the

9
sender's personal knowledge of the details and timing of the

victim's conversations with her mother about the assault, the

April 16th DCF home visit, and the April 17th hospital visit.

The sender also calls the victim "my sister," and "sis," and

references their shared "mommy" throughout the conversation.

The use of those nicknames and the familiar tone further support

a finding that the defendant authored the messages. See Gilman,

89 Mass. App. Ct. at 759; Oppenheim, 86 Mass. App. Ct. at 368.

Thus, we find no abuse of discretion in the trial judge's

decision to admit these messages in evidence.

3. Medical records. At trial, the defendant argued that

the victim's medical records were inadmissible because they were

irrelevant, prejudicial, and cumulative. On appeal, the

defendant raises the same evidentiary objections but adds that

the medical records could have confused or inflamed the passion

of the jury. We review preserved objections for prejudicial

error and consider "whether there is a reasonable possibility

that the error might have contributed to the jury's verdict."

Commonwealth v. Carriere, 470 Mass. 1, 7 (2014), quoting

Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). We review

unpreserved evidentiary objections for a substantial risk of

miscarriage of justice. See Commonwealth v. Wright, 411 Mass.

678, 681 (1992).

10
"Evidence is relevant if (a) it has any tendency to make a

fact more or less probable than it would be without the evidence

and (b) the fact is of consequence in determining the action."

Mass. G. Evid. § 401 (2025). "Evidence of a victim's state of

mind or behavior following a crime has long been admissible if

relevant to a contested issue in a case." Commonwealth v.

Arana, 453 Mass. 214, 225 (2009). The Commonwealth introduced

the medical records to rebut the defendant's arguments that

(1) the victim's recantation proved she was lying about the

assault; and (2) the lack of physical evidence of the rape

supported his defense of fabrication. Here, the medical records

were relevant to the central issue in the case, the victim's

credibility. See id.

Furthermore, the records were not unfairly prejudicial to

the defendant. They documented the victim's first refusal of an

examination and her subsequent agreement to a partial

examination. Moreover, the parties agreed to redactions and the

records themselves were not graphic or inflammatory. "The

weighing of probative value versus prejudicial effect of

evidence in the context of a trial is an issue left particularly

to the discretion of the trial judge." Commonwealth v. Rosa,

468 Mass. 231, 242 (2014). That determination is "not disturbed

absent palpable error." Commonwealth v. Spencer, 465 Mass. 32,

11
48 (2013), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192

(2010). We see no such error here.

Finally, the records were not cumulative because the DCF

social worker testified only briefly about the hospital visit

and did not personally witness the entire interaction between

the victim's family and hospital staff. We see no error in the

judge's decision to admit these records as evidence to

demonstrate the victim's family dynamics to explain her

recantation and delayed reporting of the crime.

Finally, we consider the defendant's new argument on appeal

that the records could have confused or inflamed the passions of

the jury. Again, because the records were not graphic or

inflammatory, we see no risk that the jury's passions would have

been inflamed. And we disagree that the records, which were

directly relevant to the victim's credibility, could have

confused or distracted the jury. See Commonwealth v. Silva, 482

Mass. 275, 290 (2019) ("The jury are presumed to follow all

instructions they are given"). We conclude that the judge's

12
decision to admit medical records was not in error and did not

create a substantial risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Singh,
Hershfang & Wood, JJ.3),

Clerk

Entered: April 16, 2026.

3 The panelists are listed in order of seniority.

13