Commonwealth v. Derek Moore.

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

23-P-857

COMMONWEALTH

vs.

DEREK MOORE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant, Derek Moore, appeals from his convictions on three

counts of indecent assault and battery on a child. We affirm.

Background. In a relationship with the victim's mother,

the defendant lived at times with the mother and the victim who

considered the defendant "a father-figure" and "step-father,"

and called him "dad." When the victim was between the ages of

eleven and twelve, the defendant, on three separate occasions,

touched her breasts, buttocks, and vaginal area. The victim

testified that she reported these events to her foster mother

who testified as the first complaint witness. No other

witnesses testified.
Discussion. 1. Reports to mother and grandmother. Under

the first complaint doctrine, evidence of the victim's report of

abuse is limited to "the first person told of the sexual

assault." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011).

"The first complaint doctrine does not, however, 'prohibit the

admissibility of evidence that, while barred by that doctrine,

is otherwise independently admissible.'" Id., quoting

Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). The

victim testified, without elaboration, that she also "informed"

her mother and told her grandmother "what happened." For the

first time, the defendant now contends that this testimony

violated the first complaint doctrine and was highly prejudicial

and lacked any probative value. We disagree and discern no

error and no "substantial risk of a miscarriage of justice."

Commonwealth v. McCoy, 456 Mass. 838, 846 (2010).

Under the first complaint doctrine, the victim's testimony

that she reported the abuse to her mother and grandmother was

inadmissible, but such evidence was otherwise admissible "to

rebut the defendant's suggestion that [the victim] had

fabricated her accusations against him." Aviles, 461 Mass. at

67. Here, anticipating the victim's testimony, defense counsel

challenged her credibility and motivation through his opening

statement in which he suggested that the complaint to the foster

mother sprang from a complex "family dynamic" in which the

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victim sought to escape an unpleasant homelife with her mother

and the defendant. Defense counsel theorized that the victim

contrived the allegations of abuse and made the report to the

foster mother "to make sure she doesn't have to be in [the

defendant's] custody any longer." The prosecutor could properly

rebut this assertion by showing that the report was not a

contrivance aimed at enlisting the help of the foster mother to

escape the family dynamic because the victim also later revealed

the abuse to her mother and grandmother. See Aviles, 461 Mass.

at 67. With respect to the report made to the mother, we also

note that defense counsel logically did not object because the

victim also testified that her mother did not believe her and

remained in a relationship with the defendant.

2. Discussions with others. We also discern no error and

no substantial risk of a miscarriage of justice from the foster

mother's testimony that she told the victim she was a "mandated

reporter" and would be required to report allegations of abuse

to the Department of Children and Families (DCF). Contrary to

the defense claim on appeal, this testimony was not gratuitous

but constituted part of the first complaint conversation between

the victim and the foster mother. See Commonwealth v. King, 445

Mass. 217, 243 (2005) (first complaint witness "may testify to

the details of the alleged victim's first complaint of sexual

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assault and the circumstances surrounding that first

complaint").

We agree with the defendant that the foster mother should

not have testified that she reported the matter to DCF. See

Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009) (error to

admit testimony that first complaint witness contacted

Department of Social Services); Commonwealth v. Stuckich, 450

Mass. 449, 451, 456 (2008) (same). Such testimony "has no

relevance to whether the defendant in fact committed the acts

charged." Stuckich, supra at 457. We discern, however, no

substantial risk of a miscarriage of justice. See Commonwealth

v. Kebreau, 454 Mass. at 298. The foster mother's brief

reference to the report "could have had slight, if any, effect

on the outcome" here because it was clear she was simply

following her obligation as a mandated reporter and not

suggesting that she believed the victim. Id. Unlike the

situation presented in Stuckich, supra at 456, where the first

complaint witness testified that she filed a report and also

"testified that she believed [the victim's] allegations," the

foster mother here "did not create a strong impression" that she

believed the allegations. Kebreau, supra.

The defendant also contends for the first time that the

victim's testimony "made plain that government officials

credited" the allegations because she testified that she met

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with "a lot of people" and discussed "if I wanted to press

charges." Even if it unnecessarily implied "how the complaint

of abuse evolved into the case before them," this testimony did

not indicate that government officials credited the allegations.

Stuckich, 450 Mass. at 457. The absence of any objection

underscores that this testimony could have been understood to

mean that the victim's ultimate objective was simply to avoid

returning home with her mother and the defendant rather than to

seek criminal charges. As defense counsel put it in his closing

argument, the allegations were concocted so that the victim "did

not have to go back with [the defendant] and did not have to go

back with her mother." Thus, such testimony by the victim, even

if improperly admitted, did not create a substantial risk of a

miscarriage of justice.

3. Background of first complaint witness. We disagree

with the defendant's contention, raised for the first time on

appeal, that the first complaint witness created a "veneer of

expert validation" by testifying that she was a member of the

Boston City Council, had a background as a mental health

professional, and had rigorous training to become a specialized

foster parent. Testimony of a first complaint witness may

include "relevant conditions that might help a jury assess the

veracity of the complainant's allegations or assess the specific

defense theories as to why the complainant is making a false

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allegation." King, 445 Mass. at 246. These conditions "may be

critical" to jurors evaluating "the validity of the complaint

and may be helpful in assisting them in understanding the timing

of and motivations underlying the complaint." Id. See, e.g.,

Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 595 (2006)

(under former fresh complaint doctrine no error where testimony

"included background information about the social worker's

duties and how she became involved in the case"). Especially

where the victim in this case was described as "very autistic,"

the witness' background information and communication skills

constituted part of the "complete picture" that would enable

jurors to make a fair and accurate assessment of the victim's

accusation. King, 445 Mass. at 247. Neither the testimony of

the first complaint witness nor the argument of the prosecutor

suggested that the first complaint witness had any expertise in

determining whether the victim had been abused. We discern no

error and no substantial risk of a miscarriage of justice from

the first complaint witness' testimony about her background.

4. Limiting instruction. When first complaint testimony

is presented, limiting "instructions should be given to the jury

contemporaneously with the first complaint testimony, and again

during the final instructions." King, 445 Mass. at 248. Here,

just before the first complaint witness testified, the judge

provided the limiting instruction set forth in the King case.

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The judge repeated the limiting instruction in his final charge

to the jury. On appeal, the defendant claims for the first time

that the limiting instruction should also have been provided

during the testimony of the victim. Given the fulsome and

repeated limiting instructions provided by the judge, we discern

no substantial risk of a miscarriage of justice from the absence

of a third recitation of the limiting instruction.

5. Prosecutor's closing argument. For the first time, the

defendant takes issue with two remarks by the prosecutor in her

closing argument. We discern no error and no substantial risk

of a miscarriage of justice.

The defendant contends that the prosecutor referred to

facts not in evidence and "implied expertise" by stating

children often delay disclosure of sexual assaults. Read in

context, the prosecutor stated, "You have the testimony of the

first complaint witness. And that is why she was able to

testify today under circumstance[s] like this. Because a child

often will disclose something later on in their life." This

argument is consistent with the judge's limiting instruction on

first complaint evidence: "The length of time between the

alleged crime and the report [of] the complainant to this

witness is one factor you may consider in evaluating the

complainant's testimony. But you may also consider that sexual

assault complainants may delay reporting the crime for a variety

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of reasons" (emphasis added). Given the context of the remark

and the judge's similar language in the limiting instruction,

there was no reference to expert opinion that was not in

evidence.

Next, the defendant contends that the prosecutor improperly

argued without evidentiary support that the defendant sought out

the victim as a sexual alternative to the victim's mother. The

prosecutor asked jurors to remember the state of the

relationship between the defendant and the victim's mother.

That relationship consisted of "always fighting," "always

arguing," "always yelling," and the relationship was "on and

off." The prosecutor then said, "Now don't forget that. What

their relationship is like and how it left [the victim] by

herself. There's plenty of time, opportunity for them to be

alone with each other. Now if [the victim's mother] was not

giving [the defendant] what – what he wanted, [the victim] was

there." We discern no error because this argument was based

upon evidence before the jury, and the prosecutor could properly

argue inferences pertaining to a motive and opportunity to

commit the crimes. "[P]rosecutors are entitled to marshal the

evidence and suggest inferences that the jury may draw from it."

Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Inferences

need not be "inescapable" and "need only be reasonable and

possible." Commonwealth v. Roy, 464 Mass. 818, 824, 829 (2013).

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Even if the remarks could be construed as referring to

facts not in evidence, the judge provided instructions that

would obviate any substantial risk of a miscarriage of justice.

See Commonwealth v. Pearce, 427 Mass. 642, 646 (1998). At the

beginning of the trial, the judge told jurors that "closing

arguments of the attorneys, like their opening statements, are

not evidence." In his final charge, the judge informed jurors

to confine their deliberations to the evidence, including

testimony of the witnesses and exhibits. He also repeated his

earlier instruction, "The opening statement and closing

arguments of the attorneys are not a substitute for the

evidence." Given the context of the arguments and the judge's

careful instructions, we are satisfied that the prosecutor's

remarks did not create a substantial risk of a miscarriage of

justice.

6. Response to jury question. As a final claim of error,

the defendant, though satisfied at trial, now contends that the

judge provided an improper response to jury questions during

deliberations. Jurors asked who the victim has been living with

and where since leaving the foster mother's care, whether there

was a possibility that the victim would return to the

defendant's custody, and whether the victim was aware of a

possibility of returning to the defendant's custody. After

conferring with counsel and obtaining the agreement of counsel,

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the judge responded, "All the evidence in this case has been put

before you. You have everything you need to make a decision.

Thank you very much." On appeal, the defendant claims that

these questions indicated jurors were considering extraneous

matters, the judge should have forcefully instructed them not to

do so, and the judge should have told them that custody

decisions would be adjudicated by the Probate and Family Court,

with input from DCF, and any decision would be made in the

child's best interest. We discern no error and no substantial

risk of a miscarriage of justice. See Commonwealth v. Ridley,

491 Mass. 321, 333 (2023). A judge has broad discretion to

formulate a response to a jury question. Id. The supplemental

instruction here was well within that range of discretion and

reminded jurors of their obligation to consider only evidence

that had been presented.

After careful review of the record and the arguments

presented, we discern no error or combination of errors that

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creates a substantial risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Ditkoff,
Singh & Hodgens, JJ.1),

Clerk

Entered: September 26, 2024.

1 The panelists are listed in order of seniority.

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