Commonwealth v. Alfredo Fuentes.

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

21-P-981

COMMONWEALTH

vs.

ALFREDO FUENTES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury convicted

the defendant, Alfredo Fuentes, of assault with intent to rape a

child and indecent assault and battery on a child under

fourteen.1 On appeal, the defendant contends that the judge

erred by admitting prior bad acts evidence, the prosecutor's

closing argument constituted reversible error, and the judge's

response to a jury question was improper. We affirm.

1 The defendant was initially indicted on two counts of
aggravated rape of a child, and two counts of indecent assault
and battery on a child under fourteen. Before trial, the second
count of aggravated rape of a child was dismissed at the
Commonwealth's request. During trial, one of the two counts of
indecent assault and battery on a child under fourteen was also
dismissed at the Commonwealth's request. The jury ultimately
convicted the defendant of one count of the lesser included
offense of assault with intent to rape a child, and one count of
indecent assault and battery.
Background. The defendant's convictions stem from sexual

abuse he perpetrated against the victim while he was in a long-

term relationship with her mother and living in the family's

residences. The victim, who was fifteen years old at the time

of trial, met the defendant in 2010, when she was about six

years old.2 The defendant lived for a period of time with the

victim and her mother in Dorchester and South Boston, and moved

out in January of 2016.

The assault with intent to rape occurred while the

defendant lived in the Dorchester residence with the victim's

family. While sleeping in her room, the victim awoke with the

defendant's body on top of her as he started to "move back and

forth." The victim "felt his penis in[side] [her] vagina,"

which "felt uncomfortable" and "hurt" her. The victim did not

recall how old she was on the date of this incident.

The victim initially did not disclose the above-referenced

abuse, but subsequently wrote her mother a letter in which she

revealed that the defendant "treated her as if she were his

girlfriend . . . would kiss her and touch her parts . . . [and]

would touch her buttocks and her vagina." The victim's mother

spoke with the victim and the defendant together about the

letter. As the mother asked questions, the victim "was crying

2 The defendant was approximately twenty-nine years old when he
met the victim.

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during the whole time." The victim's mother did not believe

her, and thus the defendant continued living with the victim's

family.

The indecent assault and battery occurred later in the

South Boston residence. According to the victim, the defendant

touched her breasts over her clothes while lying next to her on

her brothers' bunk bed.

At trial, the victim testified to multiple incidents of

uncharged conduct by the defendant. The victim testified that

while she slept in her mother's bedroom in Dorchester with her

mother, brothers, and the defendant, the defendant touched her

breasts and put her hand on his penis under the covers while

lying next to her. The victim further testified that on

multiple occasions while she showered in both the Dorchester and

South Boston residences, the defendant reached in and touched

her breasts and vagina.

Discussion. 1. Prior bad act evidence. The defendant

contends that the judge erred by admitting evidence of the

defendant's uncharged conduct. We first note that the issue may

not have been properly preserved for appeal.3 Even assuming

3 The defendant opposed the Commonwealth's motion in limine to
admit prior bad act evidence. However, during the motion
hearing, defense counsel argued that one of the proposed prior
bad acts fell outside the scope of relevance. Defense counsel
also stated, "I guess it's a trial issue as to what will
actually come in." When the judge asked if there was "[a]ny

3
arguendo that the issue was properly preserved, we discern no

abuse of discretion. See Commonwealth v. McCowen, 458 Mass.

461, 478 (2010) (decision whether to admit prior bad act

evidence rests within sound discretion of trial judge and will

not be disturbed absent palpable error).

Evidence of a defendant's prior bad acts is inadmissible to

show the defendant's "bad character or propensity to commit the

crimes charged." Commonwealth v. Crayton, 470 Mass. 228, 249

(2014). It may be admissible, however, to show a "common

other reason why [she] should keep [the other prior bad act
evidence] out," defense counsel responded that it was "being
used to support . . . the charges," that the victim's statements
about the uncharged conduct had varied, and that "we're getting
more support for related bad acts than we are for the actual
charged crimes" such that it "could convolute things for the
jury." It thus does not appear that the defendant objected to
the prior bad act evidence on the specific basis that he now
asserts on appeal. To the extent that the defendant believed,
as he now argues, that the judge erred in admitting an
impermissible volume of uncharged conduct or too much detail,
the better practice would have been to specify that objection
either at the hearing on the motion in limine, or later at
trial. See Commonwealth v. Repoza, 28 Mass. App. Ct. 321, 329
n.6 (1990) ("Objections are not ceremonial. The purpose . . .
is to insure that an alleged error is brought clearly to the
Judge's attention in order that the Judge may squarely consider
and decide the question and rectify the error, if any"
[quotation and citation omitted]). See also Commonwealth v.
Almele, 474 Mass. 1017, 1018 (2016) ("A significant limitation
on the preservation of rights remains, however: if a defendant
fails to object to the admission of certain evidence at trial,
his or her appellate rights are only 'preserved' if the specific
issue at trial was the same issue at the motion in limine
stage. . . . The better practice, therefore, is for a defendant
to object at trial even if he or she has already raised an
objection prior to trial").

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scheme, pattern of operation, absence of accident or mistake,

identity, intent, or motive" (quotation and citation omitted).

Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 55 (2015).

Such evidence, if relevant, "is admissible if its probative

value outweighs the risk of unfair prejudice" to the defendant.

Commonwealth v. Philbrook, 475 Mass. 20, 26 (2016).

Here, the evidence of the defendant's uncharged conduct was

relevant and properly 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").

Furthermore, it provided context for her delayed disclosure and

alleged inconsistent statements. See Commonwealth v. Childs, 94

Mass. App. Ct. 67, 72 (2018) ("Once the jury had knowledge that

the victim alleged this was part of an ongoing, continuous

abusive relationship, the victim's actions and reactions make

logical sense"); Commonwealth v. McKinnon, 35 Mass. App. Ct.

398, 404-405 (1993) (evidence of prior bad acts permissible to

explain child victim's delayed disclosure of sexual assault).

Had the jury been left with the false impression that the

defendant sexually abused the victim twice in the approximately

six years he spent living with her, "her testimony would make

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little sense." Childs, supra. See Commonwealth v. Centeno, 87

Mass. App. Ct. 564, 567 (2015) (evidence of defendant's

uncharged conduct relevant to show pattern and defendant's

sexual interest in child victim). That the judge did not

explicitly state on the record that the probative value of the

evidence outweighed the risk of unfair prejudice is of no

consequence, as "[s]uch a determination [in the present case] is

implicit in the judge's consideration of the tender of, and the

objection to, the evidence and the judge's ultimate decision to

admit it." Commonwealth v. Mahan, 18 Mass. App. Ct. 738, 741

n.1 (1984).

Contrary to the defendant's assertion, this is not an

instance where the prior bad act evidence "overwhelmed" the

case. The victim's testimony about the incident in her mother's

bed where the defendant put her hand on his penis covered

approximately two and one-half pages of the combined thirty-nine

pages of her direct and redirect testimony. Thus, while the

testimony contained some level of detail, it was brief, and

again, the defendant did not object on this basis to its

admission at trial. Further, the victim described the instances

of the defendant touching her breasts and vagina while she was

in the shower in general terms, mentioning only one specific

incident in South Boston that occurred immediately before the

charged conduct in her brothers' bunkbed. Contrast Dwyer, 448

6
Mass. at 128-129 (abuse of discretion occurred where jury heard

detailed testimony of seven uncharged incidents of sexual

assault, twenty-one out of sixty-five transcript pages of

victim's testimony described uncharged conduct, cross-

examination of victim focused primarily on uncharged conduct,

and defendant's own testimony was devoted to denying uncharged

conduct). In addition, the judge's repeated, comprehensive, and

clear instructions both during trial and in her final charge to

the jury clarified which of the incidents constituted uncharged

conduct, specified the limited purpose for which the jury may

consider that evidence, and mitigated any risk of prejudice.4

See Commonwealth v. Bryant, 482 Mass. 731, 737 (2019) (jury

presumed to follow limiting instructions on prior bad act

evidence).

2. Prosecutor's closing argument. The defendant asserts

that the prosecutor improperly vouched for the victim's

credibility and appealed to the jury's sympathy in his closing

4 The defendant's related argument that the prosecutor's
references to the prior bad act evidence in his closing argument
exacerbated the risk of unfair prejudice is unpersuasive. The
prosecutor mentioned the uncharged conduct in response to the
defendant's argument that the victim was not credible because of
her inconsistent statements. The prosecutor did not exceed the
bounds of permissible argument. Contrast Childs, 94 Mass. App.
Ct. at 76 ("had the uncharged conduct been improperly admitted,
the prosecutor's heavy use of it would establish the prejudicial
nature of the error").

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argument.5 As the defendant did not object to the prosecutor's

closing argument, we review "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). A substantial risk of a miscarriage of justice

exists where "we have a serious doubt whether the result of the

trial might have been different had the error not been made."

Commonwealth v. Sherman, 481 Mass. 464, 476 (2019), quoting

Commonwealth v. Azar, 435 Mass. 675, 687 (2002). We consider

the challenged portions in the context of the entire closing,

the judge's instructions to the jury, and the evidence at trial.

See Commonwealth v. Martinez, 476 Mass. 186, 198 (2017).

i. Vouching. During closing argument, the prosecutor made

the following remarks:

"Credibility does matter and you absolutely, contrary
to what [the] Defense says . . . have to ask yourself
is there a reason this person would be untruthful.
What reason is before you that [the victim] would be
untruthful about this man raping her? What motive
does she have . . . What does she gain . . . In the
evidence before you, nothing, she gains nothing by
lying to you. You have heard no evidence that she has
a motive to lie about this, and you are absolutely the
judges of who and what to believe . . .

". . .

"And what of [the victim's] testimony would strike you
as something wholly false? If that were the case,

5 As explained above, the prosecutor's brief references to
properly admitted prior bad acts evidence in closing argument
did not constitute reversible error. See note 4, supra.

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wouldn't it sound better? Wouldn't the details be the
same every time? Wouldn't it be a script? Wouldn't
she remember all the things that would help her be
believed? That's not what you saw. You saw a 15-
year-old answer questions the best she could, no
more."

The defendant's contention that the prosecutor

impermissibly vouched for the victim's credibility is

unavailing. Nowhere in the prosecutor's remarks did he "state

or imply that he had knowledge independent of the jury, or

assert any personal beliefs about the victim's credibility."

Sanchez, 96 Mass. App. Ct. at 10. Nor did the prosecutor

improperly suggest or imply "that the [victim] should be

afforded greater credibility by reason of [her] willingness to

come into court and testify." Commonwealth v. Helberg, 73 Mass.

App. Ct. 175, 180 (2008). Compare Commonwealth v. Beaudry, 445

Mass. 577, 587-588 (2005). Contrary to the defendant's

assertion, "there is no categorical prohibition against

suggestion by a prosecutor that a prosecution witness has no

motive to lie." Helberg, supra at 179.

Here, the prosecutor's comments were made in response to

the defendant's argument in closing that the victim was not

credible and that there was "no way" that the jury could find

the defendant guilty based on "the inconsistencies and the

variations" in her testimony. See Commonwealth v. Mason, 485

Mass. 520, 539 (2020) (prosecutor is entitled to respond to

9
argument made by defense at closing); Sanchez, 96 Mass. App. Ct.

at 10, quoting Commonwealth v. Sanders, 451 Mass. 290, 297

(2008) ("if defense counsel comments on a government witness's

credibility during closing argument, it is proper for a

prosecutor, 'within the limits of the evidence,' to argue why

the jury should believe the witness"). Moreover, the judge

instructed the jurors multiple times that they were the sole

judges of the facts and credibility of the witnesses, they were

to disregard any comments the attorneys may have made suggesting

their personal beliefs regarding witnesses' credibility, and

that closing arguments are not evidence. "The jury are presumed

to have followed these instructions." Commonwealth v.

Fernandes, 478 Mass. 725, 743 (2018).

ii. Appeals to jury's emotions. Second, the defendant

contends that the prosecutor improperly appealed to the jury's

emotions by holding up and referencing a photograph6 of the

victim at age eight or nine and repeatedly referencing her age.7

We disagree.

6 The Commonwealth offered the photograph as an exhibit during
the direct testimony of the victim's mother.
7 While the defendant now argues that the Commonwealth used the

photograph of the victim during closing argument for a different
purpose than it proposed in its motion in limine, he did not
object at trial to the admission of the photograph nor its use
during closing argument. See Commonwealth v. Maynard, 436 Mass.
558, 570 (2002) (that defendant did not object at trial supports
inference that prosecutor's actions were "not so egregious and

10
On the record before us, we discern no error. There is no

indication that the prosecutor did anything more than briefly

display a trial exhibit to the jury. Furthermore, the judge

instructed that the jury "must not be influenced by . . .

sympathy," and that it "would be improper for [the jury] to

consider any personal feelings . . . or sympathy." These

instructions mitigated any risk that the prosecutor's use of the

photograph would "sweep [the] jurors beyond a fair and calm

consideration of the evidence." Commonwealth v. Perry, 254

Mass. 520, 531 (1926). See Commonwealth v. Kapaia, 490 Mass.

787, 799 (2022) ("even standard instructions, such as those

given in this case, contribute to mitigating the harm created by

improper appeals to sympathy").

3. Judge's response to jury's questions. During

deliberations the jury sent two questions to the judge. The

jury asked, "What were the trigger mechanisms that initiated

these indictments," and "Who provided the initial complaint."

The judge sent the following written answer in response: "Our

rules normally permit testimony only as to the complainant's

first report (page 13 of the instructions). You have all the

evidence." Assuming without deciding that this issue was

prejudicial as [the defendant] now claims"). See also Almele,
474 Mass. at 1018.

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properly preserved,8 we discern no error or abuse of discretion

in the judge's response. See Commonwealth v. Starkweather, 79

Mass. App. Ct. 791, 804 (2011), quoting Commonwealth v. Johnson,

429 Mass. 745, 753 (1999) ("The necessity, extent, and character

of supplemental instructions in response to a jury request are

matters within a trial judge's discretion").

The defendant asserts that the judge's response improperly

lent credibility to the victim by implying that she made

multiple reports of abuse that were not before the jury. We

disagree. The judge instructed that the jury "[had] all the

evidence." Also, the judge expressly referred the jury to page

thirteen of her instructions, which contained a correct

instruction on first complaint. Indeed, the judge provided

comprehensive, clear, and repeated instructions to the jury

regarding the first complaint doctrine both during trial and in

her final charge. "[W]e ascribe a certain level of

sophistication to the jury" (quotation and citation omitted),

Kapaia, 490 Mass. at 805, and presume that they followed the

8 Here again, the defendant failed to object to the judge's
action. Although defense counsel proffered a different proposed
response to the jury question, she did not object to the version
given by the judge. In any case, where the instruction did not
constitute error, we need not dwell further on the correct
standard of review.

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judge's instructions.
Judgments affirmed.

By the Court (Neyman, Shin &
Smyth, JJ.9),

Clerk

Entered: February 27, 2023.

9 The panelists are listed in order of seniority.

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