Commonwealth v. Joseph Elibert.

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-257

COMMONWEALTH

vs.

JOSEPH ELIBERT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the

defendant, Joseph Elibert, guilty of two counts of indecent

assault and battery on a child under fourteen. On appeal, the

defendant contends that the judge erred by (1) instructing the

jury on the lesser included offense of indecent assault and

battery; (2) admitting testimony in violation of the first

complaint doctrine; (3) allowing the Commonwealth's expert

witnesses to testify to facts not in evidence; and (4) admitting

prior bad acts evidence. The defendant also claims that his

trial counsel was ineffective for advising him not to testify.

We affirm.

Background. The sexual assaults occurred over a period of

years while the defendant was in a long-term relationship with

the victim's grandmother and living in the family's Dorchester
apartment. The victim, who was sixteen years old at the time of

trial, testified that the abuse began when she was nine years

old and continued until the defendant moved out in January 2016.

The assaults occurred in the living room of the apartment and in

the defendant's car. When the victim was nine years old, the

defendant "forced [her] onto the big couch," "took off [her]

pants and [her] underwear and started licking inside [her]

vagina and then he put his two fingers inside [her] vagina"

while his other hand was "on [her] butt." When the victim was

"maybe ten" years old, the defendant exposed his penis to her in

the living room and asked her "to suck it and touch it" while

"bringing his penis closer to [her]," "as if he wanted [her] to

give oral sex." Beginning when the victim was in the sixth

grade, the defendant assaulted her "[m]ore than once" while

alone with her in his vehicle. The victim testified that he

"would put his hands inside [her] khaki pants, through [her]

underwear . . . touch inside [her] vagina," and "put his whole

hand . . . inside [her] vagina." In addition, the victim

testified to uncharged incidents of touching that occurred in

the living room "[m]ore than once a week" from the time she was

nine years old to when she was twelve.1

1 The victim testified that the defendant "would force [her] on
his lap" so that she was facing him, "would either touch [her]
breasts or lick [her] breasts, and he would also touch [her]
butt." The defendant would then "move [her] back and forth in a

2
The defendant was indicted on two counts of aggravated rape

of a child for "putting his tongue to the [victim's] vagina,"

and "penetrating the vagina of [the victim] with his fingers;"

two counts of indecent assault and battery on a child under

fourteen for touching her breasts and buttocks; and one count of

open and gross lewdness. The jury found the defendant guilty of

the lesser included offense of indecent assault and battery on

both the oral and digital aggravated rape counts, and not guilty

of the remaining counts. This appeal followed.

Discussion. 1. Lesser included offense instruction. The

defendant contends that the judge erred by instructing the jury

on the lesser included offense of indecent assault and battery

because the evidence did not support such an instruction.

Where, as here, the defendant timely objected to the

instruction, we review for prejudicial error. See Commonwealth

v. LeBlanc, 456 Mass. 135, 142 (2010).

It is well settled that indecent assault and battery on a

child under fourteen is a lesser included offense of aggravated

rape of a child, distinguished by the element of penetration.

See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013);

Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not

error to give a lesser included offense instruction 'if on any

sexual motion," and she "could feel his penis touching [her]
vagina" through his clothing.

3
hypothesis of the evidence, the jury could have found the

defendant[] guilty of [the lesser included offense]' and not

guilty of the greater offense." Commonwealth v. Porro, 458

Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass.

130, 132 (1994). "In determining whether there is such a

hypothesis, 'the judge may consider the possibility that the

jury reasonably may disbelieve the witnesses' testimony

regarding an element required of the greater, but not the lesser

included, offense . . . even though the element that

distinguishes the two offenses was not specifically disputed or

put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass.

415, 424-425 (2012), quoting Porro, supra.

The defendant, relying on Commonwealth v. Donlan, 436 Mass.

329, 337 (2002), argues that the lesser included offense

instruction was improper because there was no "evidence that

disputes or puts into question the element of penetration." See

id. at 335 (defendant not entitled to lesser included

instruction where evidence of differentiating element not

"sufficiently in dispute" [citation omitted]). The defendant's

reliance on Donlan, however, is misplaced, as he fails to

recognize that we apply a "different test where the issue is

whether the judge erred in giving a lesser included instruction

rather than . . . by failing to give such an instruction."

Porro, 458 Mass. at 537.

4
In the present case, the jury may reasonably have

disbelieved the victim's testimony as to penetration and found

that there had been indecent touching that fell short of digital

and oral aggravated rape. See Commonwealth v. Russell, 470

Mass. 464, 481-482 (2015). The jury heard evidence that (1) in

her 2016 interview with investigators, the victim alleged that

the abuse consisted only of "touching" of her "breasts and [her]

butt"; (2) her 2018 interview was "the first time [she] accused

[the defendant] of rape"; and (3) when investigators asked why

she was "accusing [the defendant] of rape when [she] had never

mentioned that back in 2016," she told them she "needed to tell

more, and maybe it will bring more power to the situation." The

jury could reasonably have found, as the defendant argued in

closing, that "in 2016, she says it was a touching," and "[i]n

2018, she comes back and claims it was a rape." Furthermore,

with respect to the testimony regarding penetration, "the jury

properly could have considered the age of the victim," who was

nine years old when the abuse began, and "could have had

reasonable doubt as to the extent of the contact [she]

described." Id. at 482. The jury could reasonably have found,

for example, that the defendant put his hand inside the victim's

pants and "through [her] underwear," but disbelieved her

testimony regarding penetration. See id. at 481 (if there was

"evidence of both nonpenetrating and penetrating contact, the

5
jury were free to believe the former and disbelieve the

latter"). In this regard, the jury could also have considered

the victim's testimony concerning the feeling "from" her vagina

in reference to both alleged penetrative conduct and

nonpenetrative touching by the defendant. We conclude that it

was not error for the judge to give the lesser included

instruction where "a jury reasonably could be convinced by the

victim's testimony that the defendant sexually assaulted her but

not be convinced beyond a reasonable doubt that penetration

occurred." Porro, 458 Mass. at 537 n.10.

The defendant further contends that the judge erred by not

providing a specific unanimity instruction regarding the lesser

included offenses of indecent assault and battery. Where the

defendant did not request such an instruction nor object to the

judge's instructions on that basis,2 we review for a substantial

risk of a miscarriage of justice. Commonwealth v. Black, 50

Mass. App. Ct. 477, 477 (2000). We discern no error, much less

such a risk.

"A specific unanimity instruction is required where an

'indictment alleges in statutory terms a criminal offense

occurring during a period of several months and, at trial, there

is evidence that the defendant committed several such offenses

2 The defendant objected to the judge providing a lesser included
offense instruction and a prior bad acts instruction.

6
within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct.

463, 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591,

598 (1996). Here, the judge provided a specific unanimity

instruction on the aggravated rape indictments.3 After

explaining the elements of aggravated rape, the judge instructed

that if the jury found that the Commonwealth had failed to prove

each element beyond a reasonable doubt, that the jury "should

consider whether the Commonwealth has proved the lesser crime of

indecent assault and battery." In addition, the judge explained

that each verdict slip for the two aggravated rape counts

"references in parentheses the particular alleged contact," and

that there were three choices on each slip: not guilty, guilty,

or guilty of the lesser included offense of indecent assault and

battery. The judge was not required, sua sponte, to provide an

additional specific unanimity instruction on the lesser included

offenses.4

2. First complaint issues. The defendant argues that the

judge erred by permitting the first complaint witness to testify

3 The judge instructed, in part, that the jury must unanimously
agree that the rapes occurred "on at least one specific
occasion," and, with respect to the digital rape, that the
offense occurred "either in the apartment or in the motor
vehicle, or in both."
4 Even assuming error, the risk that the jury would convict the

defendant based on uncharged conduct was mitigated by the
judge's clear instructions on the limited purpose for which the
jury could consider the evidence of touching prior to January
2016, see infra.

7
to her belief in the victim's allegations and admitting evidence

of multiple complaints. We review the admission of such

evidence for abuse of discretion. See Commonwealth v. Aviles,

461 Mass. 60, 73 (2011).

The defendant maintains that the first complaint witness

improperly testified over objection to her belief in the

victim's allegations of abuse when she stated that "[i]t sounded

pretty real to me, but after [the victim] said it was a joke."

Viewed in context,5 the witness's challenged testimony was not an

improper reflection of whether she believed the victim's

allegations, but rather a relevant observation of the victim's

demeanor and the manner in which she initially made the

disclosure -– seriously as compared to joking. See, e.g.,

Commonwealth v. Espinal, 482 Mass. 190, 204-205 (2019) (first

complaint witness may "testify as to the 'circumstances

surrounding the initial complaint'" including "observations of

the complainant" and "other relevant conditions that might help

a jury assess the veracity of the complainant's allegations"

[citation omitted]); Commonwealth v. King, 445 Mass. 217, 246 &

5 The first complaint witness testified that the victim told her
"that [the victim's] grandfather touched her breasts and her
butt." When asked "how [the victim] said it," she testified
that "[i]t sounded serious at first, but afterwards she told me
it was a joke." The prosecutor then asked the witness to
clarify what she meant when she said the victim said it
"seriously," to which the witness responded that "[i]t sounded
pretty real to me, but after she said it was a joke."

8
n.26 (2005). On the record before us, we discern no abuse of

discretion in the judge's admission of the first complaint

witness's testimony.6,7

We likewise discern no reversible error in the admission of

the victim's, the mother's, or Detective Johnson's testimony.

"While the first complaint doctrine prohibits 'piling on' of

additional complaint witnesses, 'it does not exclude testimony

that is otherwise independently admissible and serves a purpose

other than to repeat the fact of a complaint and thereby

corroborate the complainant's accusations.'" Commonwealth v.

Kennedy, 478 Mass. 804, 814 (2018), quoting Commonwealth v.

McCoy, 456 Mass. 838, 845 (2010). The victim's testimony that

on January 26, 2016, she "ha[d] a conversation with a school

counselor"; "went to [her] mom's house," "Children's Hospital,"

and "[t]he police station"; and that she no longer lived in the

6 Even assuming error, we discern no prejudice from the admission
of the witness's testimony regarding the victim's disclosure
"that her grandfather touched her breasts and her butt" where
the defendant was acquitted on the indecent assault and battery
charges for "touching her breasts" and "touching her buttocks."
See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).
Furthermore, the judge properly instructed the jury, both during
the trial and in his final charge, on the limited purposes for
which it could consider first complaint evidence.
7 We are likewise unpersuaded by the defendant's assertion that

the prosecutor's closing argument, to which he did not object,
exacerbated the prejudice from the admission of the first
complaint witness's testimony. Where the admission of the
testimony was not error, "the Commonwealth was permitted to rely
on it during closing argument" and argue that her testimony
corroborated the victim's account. Espinal, 482 Mass. at 205.

9
apartment or was alone with the defendant after that day "was

not offered as first complaint testimony, but rather to provide

context" for, inter alia, what led to the end of the years-long

abuse. Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009). The

victim's redirect testimony as to her family members' reactions

to learning of the abuse8 was properly admitted to rebut

questions raised by the defendant on cross-examination.9 Id. at

297-299. Finally, we discern no reversible error in the

admission of Detective Johnson's testimony where the defendant

"opened the door" to the nature of the questions in the 2016

forensic interview on cross-examination of the victim,

Commonwealth v. Torres, 86 Mass. App. Ct. 272, 277-278 (2014)

(once defendant "opened the door," Commonwealth permitted to

explore contents and context of statements in more detail), and

the detective did not "reiterate[] [the victim's] accusations or

8 Even assuming, arguendo, that it was error to admit the
mother's testimony that she felt "[s]hock," "[c]onfusion," and
"just hurt" after she "learn[ed] of some information" on January
26, 2016, we discern no prejudice where the testimony was brief,
she did not convey the content of the information she learned
nor her belief in it, and the defendant relied on this testimony
in closing argument to suggest that "[a]ny parent . . . would
feel the same way" and the mother "had trouble believing" the
allegations. See McCoy, 456 Mass. at 851-852.
9 After the defendant cross-examined the victim about her partial

and delayed disclosures, the victim explained on redirect that
she did not disclose the full extent of the abuse in 2016
"[b]ecause of how [her] family reacted."

10
enhance[] her credibility by suggesting that [he] believed

her."10 Kennedy, supra at 815.

3. Commonwealth's expert witnesses. The defendant next

asserts that the judge erred by allowing the Commonwealth's

expert witnesses to testify to facts not in evidence and to

bolster their opinions with hearsay evidence through references

to literature, research, studies, and observations of their

colleagues' work. As the defendant did not object to the

experts' testimony on this ground, either at trial or at the

motion in limine stage, we review to determine whether there was

error, and if so, whether it created a substantial risk of a

miscarriage of justice.11 Commonwealth v. Grady, 474 Mass. 715,

716-717, 719 (2016).

"Although facts and data not in evidence may form the basis

of an expert witness's opinion testimony, the expert may not

present on direct examination the specific information on which

he or she relied . . . because expert testimony to the fact[s]

of the test results obtained by someone else . . . [is] hearsay"

(quotation and citation omitted). Commonwealth v. Greineder,

10 We likewise reject the defendant's argument that the
prosecutor's brief references to the victim "finally [speaking]
up" on January 26, 2016, and to the family's reactions in
opening and closing arguments, to which he did not object,
exacerbated any prejudice, much less created a substantial risk
of a miscarriage of justice.
11 Even assuming this issue was properly preserved, we discern no

prejudicial error for the reasons discussed infra.

11
464 Mass. 580, 583 (2013). As the Commonwealth concedes, Dr.

Schwartz's testimony on direct examination regarding the

specific findings of her colleague's study of pregnant teenagers

constituted inadmissible hearsay. That notwithstanding, we

discern no substantial risk of miscarriage of justice in the

admission of this testimony where the testimony was brief, and

the jury found the defendant not guilty of both counts involving

penetration.12 See Commonwealth v. Duffy, 62 Mass. App. Ct. 921,

923 (2004) (admission of evidence "obviously not unduly

prejudicial given the defendant's acquittal on the charge to

which it most directly related"); Commonwealth v. Sosnowski, 43

Mass. App. Ct. 367, 372 (1997). The remainder of Dr. Schwartz's

and Dr. Tishelman's testimony, however, was properly admitted.

See Commonwealth v. Durand, 475 Mass. 657, 670 (2016) (testimony

admissible where expert "testified that her opinion was based on

relevant scientific literature but she did not name specific

studies or discuss their factual findings").

Finally, we reject the defendant's assertion that the

experts' testimony violated his right to confrontation. The

literature, research, and studies to which the experts referred

were not testimonial in nature and do not implicate the

12We likewise discern no substantial risk of a miscarriage of
justice from the prosecutor's brief reference to Dr. Schwartz's
inadmissible testimony during closing argument, to which the
defendant did not object.

12
confrontation clause. See Commonwealth v. Cole, 473 Mass. 317,

329-330 (2015); Commonwealth v. Durand, 457 Mass. 574, 589

(2010).

4. Prior bad acts evidence. The defendant contends that

the judge erred by admitting the victim's testimony regarding

the defendant's uncharged conduct.13 Where the defendant

objected to the admission of the prior bad acts evidence, we

review for abuse of discretion. See Commonwealth v. McCowen,

458 Mass. 461, 478 (2010).

The victim's testimony regarding the uncharged touching

incidents that occurred "more than once a week" was relevant and

properly admitted for the limited purposes of establishing a

pattern of conduct and demonstrating the nature of the

relationship between the parties. See, e.g., Commonwealth v.

Centeno, 87 Mass. App. Ct. 564, 567 (2015). The victim's

testimony of the ongoing abuse also provided context for, inter

alia, her delayed disclosure and alleged inconsistent

statements. See, e.g., Commonwealth v. Childs, 94 Mass. App.

Ct. 67, 72 (2018).

13We reject the defendant's related assertion that the uncharged
conduct was the only evidence of improper touching upon which
the jury could have convicted him of the lesser included
offenses of indecent assault and battery. As discussed supra,
the jury reasonably could have disbelieved the victim's
testimony regarding penetration and found indecent touching
short of aggravated rape. See Russell, 470 Mass. at 481-482.

13
Furthermore, the judge's clear limiting instruction during

his final charge mitigated the risk of undue prejudice to the

defendant. The judge explained that the defendant was "not

charged with that touching prior to January of 2016," specified

the limited purpose for which the prior bad acts evidence was

admitted, and emphasized that the jury could not consider that

evidence as proof that the crimes occurred or of the defendant's

character or propensity. We presume that the jury followed the

judge's limiting instructions. See Commonwealth v. Bryant, 482

Mass. 731, 737 (2019). Where the evidence admitted was highly

probative for non-propensity purposes "and the chance of

prejudice was minimized by a specific limiting instruction, we

cannot say on the record before us that the judge's decision to

admit the testimony was in palpable error." Commonwealth v.

Dunn, 407 Mass. 798, 807 (1990).

Likewise, the defendant's contention that the judge failed

to provide a proper and timely limiting instruction lacks merit.

The defendant asserts that the judge's use of the word "showing"

improperly implied that the prior bad acts evidence had in fact

occurred.14 Where the defendant did not object to the judge's

14In his final charge, the judge instructed the jury, in part,
that "[d]uring trial, there was some testimony showing that the
Defendant touched [the victim's] breasts or buttocks at other
times between 2011 and 2016."

14
instruction on this basis at trial,15 our review is limited to

whether there was error and, if so, whether it created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Pfeiffer, 482 Mass. 110, 128 (2019); Commonwealth v. Belcher,

446 Mass. 693, 696 (2006).

Viewing the instruction as a whole, see Commonwealth v.

Riley, 433 Mass. 266, 270 (2001), we discern no reversible error

where the judge explained to the jurors the limited purpose for

which they could consider the evidence of the uncharged

touching, "to the extent you believe it." Furthermore, the

failure to provide the limiting instruction contemporaneously,

when such an instruction was not requested, was not error. See

Commonwealth v. Teixeira, 486 Mass. 617, 629 n.7 (2021).

5. Ineffective assistance of counsel. For the first time

on appeal, the defendant alleges that his trial counsel was

ineffective for advising him not to testify in his own defense.

We review a claim of ineffective assistance of counsel to

determine whether there was "serious incompetency, inefficiency,

or inattention of counsel" that "deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

15Although the transcript is somewhat unclear, it appears that
the defendant objected to the prior bad acts instruction solely
because "a course of conduct is not something which is material
in this case" and "[t]here's no issue of [identification]."

15
It is well established "that the preferred method for

raising a claim of ineffective assistance of counsel is through

a motion for a new trial." Commonwealth v. Zinser, 446 Mass.

807, 810 (2006), citing Saferian, 366 Mass. at 90 n.1. "Relief

on a claim of ineffective assistance based on the trial record

is the weakest form of such a claim because it is 'bereft of any

explanation by trial counsel for his actions and suggestive of

strategy contrived by a defendant viewing the case with

hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116 n.4

(2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5

(2002). Relief may be granted on such a claim, however, "when

the factual basis of the claim appears indisputably on the trial

record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019),

quoting Gorham, supra.

On the record before us, "the defendant's claim of

ineffective assistance is not indisputable." Davis, 481 Mass.

at 223. Without a motion for a new trial supported by an

affidavit from trial counsel or the defendant, we are left with

no basis on which to assess the credibility and plausibility of

the defendant's contentions made on appeal. See Commonwealth v.

Hoyle, 67 Mass. App. Ct. 10, 11 (2006). Nor does the trial

transcript support the defendant's allegation, as the judge's

colloquy with counsel and the defendant to address his decision

whether to testify was not transcribed and the record is silent

16
as to the advice trial counsel provided the defendant regarding

this decision. Accordingly, the claim is speculative, and

satisfies neither prong of the ineffective assistance of counsel

test.

Judgments affirmed.

By the Court (Milkey,
Neyman & Smyth, JJ.16),

Clerk

Entered: April 5, 2023.

16 The panelists are listed in order of seniority.

17