Commonwealth v. Stephen D. Boulter.

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-527

COMMONWEALTH

vs.

STEPHEN D. BOULTER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of two

counts of rape, in violation of G. L. c. 265, § 22 (b); one

count of intimidation of a witness, in violation of G. L.

c. 268, § 13B; and one count of photographing or video recording

an unsuspecting nude person, in violation of G. L. c. 272,

§ 105 (b). On appeal, the defendant challenges the propriety of

the prosecutor's opening statement and closing argument. We

affirm.

Background. The defendant and the victim were in a

romantic relationship for slightly more than a year. On January

4, 2022, they got together at the defendant's friend's

apartment, where the defendant was staying. At this point in
their relationship, the victim wanted to break up with the

defendant. While the defendant was working, the victim fell

asleep on the defendant's bed. The victim woke up when the

defendant attacked her in her sleep. She suffered a black eye

as a result of the attack. A photograph of the victim's injury

was entered into evidence. The victim posted the same

photograph of herself on her Facebook profile. A few days

later, the victim reported this incident (the Attleboro case) to

the Attleboro police department. The defendant was later

arrested.

The defendant spoke to the victim about this Attleboro case

while it was pending. He told her "[n]ot to answer anybody in

the court. So do not talk to the [district attorney] or do not

talk to anybody in court. Don't show up." He expressed concern

that he would "be in big trouble for it."1

Despite the assault, the victim remained in contact with

the defendant because she still loved him. She saw the

defendant again on January 13, 2022. They agreed to go to a

hotel that evening.

The victim picked up the defendant that evening, and they

stopped at a liquor store. The victim purchased a sleeve of

1 Indeed, the defendant was eventually held in jail in
connection with the Attleboro case.

2
Fireball shots and a six pack of Bud Light. They arrived at the

hotel after 9 or 10 P.M. The victim quickly drank two Fireball

shots and two beers. The defendant was also drinking. The

victim could not remember the rest of the evening. Her next

memory was waking up the following morning and consenting to

sexual intercourse with the defendant.

The victim gave the defendant a ride to his friend's house.

As they parted ways, the defendant said, "[W]e made some awesome

videos last night." The victim did not understand what the

defendant was talking about and asked him what he meant. The

defendant just brushed off her question.

Approximately two days later, the defendant sent the victim

two video recordings of the victim nude in the hotel bathtub.

The video recordings depicted the defendant repeatedly

penetrating the victim's vagina with multiple fingers, even

after she repeatedly asked him to stop. On direct examination,

the victim testified that she had no memory of being in that

bathtub. She described herself in the video recordings as "not

coherent."

The defendant also sent the victim a series of five nude

photographs of the victim in the hotel bathroom. On cross-

examination, the victim explained that she would normally not

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let the defendant photograph her in the nude because she was

uncomfortable with her body.2

The victim tried to break up with the defendant after the

hotel stay. In response, the defendant told the victim that he

would send the nude photographs and video recordings to her

boss, her parents, and her children. The defendant also

threatened to send the video recordings and images to the

Department of Children and Families (DCF). Despite this threat,

the victim ended the relationship. She then reported the hotel

assault to the police.

After this point, the defendant began calling the victim

from the house of correction, where he was held because of the

Attleboro case. They spoke almost daily for more than two

months. In one recorded call, played for the jury, the

defendant told the victim that he would arrange for a private

investigator to visit the victim, and the investigator would

record her stating that she consented to the sexual activity in

the bathtub and to being video recorded in the nude while at the

hotel. The victim later told a private investigator that all

these acts were consensual. She testified that she did this

2 The defense impeached this claim with a recorded jail call
in which the victim offered to send the defendant photographs of
herself naked. The victim then admitted that she sent the
defendant photographs of herself wearing lingerie and underwear.

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because she "felt threatened, manipulated, [and] made to feel

guilty."

The defendant sent a letter to the victim's children's

father. The letter accused the victim of lying, suggested that

she disappear, and stated that if she came forward, the

defendant would deal with her after the fact.

In a text exchange, the defendant's former girlfriend sent

the defendant a photograph of the victim with a black eye and

asked him why he had done that. The defendant responded, "I'll

take care of that bitch. Watch." Also, in a recorded jail call

to this former girlfriend, the defendant admitted to the

underlying facts that constituted rape, that he had recorded the

victim, and that the victim had been so drunk that she could not

remember what had happened.

Discussion. On appeal, the defendant argues that the

prosecutor made errors in her opening statement and closing

argument that require reversal and a new trial. We address each

argument in turn.

1. The prosecutor's opening statement. The defendant

argues that the prosecutor made improper speculative and

emotionally provocative arguments designed to appeal to the

jurors' sympathies in her opening statement. "The proper

function of an opening [statement] is to outline in a general

way the nature of the case which counsel expects to be able to

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prove or support by the evidence" (citation omitted).

Commonwealth v. Croken, 432 Mass. 266, 268 (2000). "A mistrial

may be appropriate where the force of the prosecutor's opening

remarks was overwhelmingly prejudicial and likely to leave an

indelible imprint on the jurors' minds" (quotation and citation

omitted). Commonwealth v. Hoilett, 430 Mass. 369, 372 (1999).

"[A] claim of improper [opening statement] by the prosecutor

must be judged in light of the entire [statement], the judge's

instructions to the jury, and the evidence actually introduced

at trial" (citation omitted). Commonwealth v. Jones, 439 Mass.

249, 260-261 (2003). Because defense counsel did not object to

the Commonwealth's opening statement, we determine whether there

was any error, and if so, whether it created a substantial risk

of a miscarriage of justice. Commonwealth v. Randolph, 438

Mass. 290, 297 (2002). "A substantial risk of a miscarriage of

justice exists when 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). Id.

First, the defendant takes issue with the prosecutor's

expectation that the evidence would demonstrate that the

defendant had a plan to control, manipulate, and keep the victim

from talking about the Attleboro case. The defendant asserts

that this was improper speculation.

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In an opening statement, a prosecutor may suggest that the

evidence will demonstrate anything that the Commonwealth

reasonably and in good faith expects to prove. Jones, 439 Mass.

at 260. See Commonwealth v. Snow, 34 Mass. App. Ct. 27, 34

(1993).

In fact, the evidence at trial amply supported the

prosecutor's expectations. The Commonwealth introduced evidence

concerning the Attleboro case, including the fact that the

victim reported it to the police, that the defendant was aware

of this, and that he told her "[n]ot to answer anybody in the

court. So do not talk to the [district attorney] or do not talk

to anybody in court. Don't show up."

Then, on the night the defendant assaulted the victim in

the hotel bathtub, the defendant took several photographs of the

victim and recorded a series of video recordings including the

series in which he sexually assaulted her. The defendant then

threatened to send the photographs and video recordings to the

victim's boss, her parents, her children, and DCF if she pursued

criminal charges. The defendant also repeatedly told the victim

to keep her promise to not testify against him.

The prosecutor was free to articulate the defendant's

underlying motive where it was supported by the evidence at

trial. "Evidence of motive is generally admissible" (quotation

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and citation omitted). Commonwealth v. Mendes, 441 Mass. 459,

464 (2004).

The defendant also asserts that the prosecutor improperly

appealed to the jurors' sympathies. Specifically, the defendant

points to the prosecutor's statement that the victim "was too

drunk to consent to what was happening to her, which is this

defendant shoving his hand into her vagina, treating her like a

rag doll that night, treating her like his plaything . . .

treating her like she was nothing . . . ."

"A prosecutor may use the opening [statement] to set the

scene, . . . even if that scene is unfavorable to the

defendant." Commonwealth v. Alemany, 488 Mass. 499, 511 (2021).

At the same time, the prosecutor "must avoid slip[ping] into

emotionally provocative argument" or "making an improper appeal

to sympathy to ensure that the verdict [is] based on the

evidence rather than sympathy for the victim" (quotations and

citation omitted). Commonwealth v. Kapaia, 490 Mass. 787, 794-

795 (2022). Furthermore, a prosecutor cannot "inflame the jury

to evoke an emotional, rather than intellectual response"

(citation omitted). Commonwealth v. Phillips, 495 Mass. 491,

498 (2025).

Here, the highlighted language in the prosecutor's opening

statements accurately described the evidence in the three video

recordings submitted into evidence as Exhibits 4, 5, and 6. The

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video recordings, which the defendant recorded and sent to the

victim, depicted the defendant slapping and raping a semi-

conscious, intoxicated, and incoherent victim while verbally

abusing her, and using crude language to embarrass and belittle

her. Specifically, he repeatedly claimed ownership of the

victim's body as he assaulted her. He continued to do all of

this even after the victim repeatedly asked him to stop,

ignoring her pleas. "[T]o the degree the recitation of the

evidence was inflammatory, that was inherent in the odious . . .

nature of the crime[] committed" (citation omitted).3

Commonwealth v. Johnson, 429 Mass. 745, 749 (1999).

Finally, in order to prevent a rush to judgment, the judge

properly instructed the jury before the opening statements that

they were not evidence. The judge repeated this instruction in

the final jury charge. Compare Commonwealth v. Barbosa, 477

Mass. 658, 670 (2017) (prosecutor's emphatic rhetoric in opening

statement and closing argument was permissible because it was

Alternatively, to the extent that the prosecutor's
3

assertion that the defendant treated the victim like a "rag
doll" and "plaything" may be considered an improper appeal to
juror sympathy, it did not create a substantial risk of a
miscarriage of justice given the overwhelming evidence of the
defendant's guilt. See Commonwealth v. Santiago, 425 Mass. 491,
501 (1997) ("the strength of the Commonwealth's case is
particularly crucial where improper appeals to sympathy are
made. Where guilt is clear, we may conclude that the
overwhelming strength of the evidence led the jury to its
conclusion").

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accompanied by jury instruction before opening statements and in

final charge that opening statements and closing arguments are

not evidence). There was no error.

2. The prosecutor's closing argument. The defendant

contends that during the prosecutor's closing argument, the

prosecutor expressed her personal opinion of the evidence,

referred to facts not in evidence, and impermissibly vouched for

the credibility of the victim. The defendant made a timely

objection to the prosecutor's alleged vouching. We conclude

that there was no error.

First, the defendant claims that "the [p]rosecutor

expressed her personal opinion of the evidence." The defendant

points to the following portion of the prosecutor's argument:

"And when you listen to that, those videos that I talked
about outside of Muckey's [Liquor Store], at the hotel, you
can hear that in the defendant's voice. He knows what he's
doing when he's getting her into that hotel room. . . .
When you look at these pictures, ask yourself, is this a
person who's consenting . . . and had an agreement before?
No. Absolutely not. . . . There was a man manipulating a
woman who he knew how to take control of. And he knew she
was drunk. . . ."

There was no objection. On appeal, the defendant asserts that

in this passage the prosecutor improperly opined that the

defendant had filmed the victim at a liquor store as part of a

plan to control her and that the victim had not consented to

being photographed.

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"It is well established that [a] prosecutor may not assert

his or her personal opinion as to the credibility of a witness

or the guilt of an accused" (quotation and citation omitted).

Commonwealth v. Kosilek, 423 Mass. 449, 459 (1996).

Furthermore, a prosecutor may not "suggest that [she] has

knowledge independent of the evidence at trial." Commonwealth

v. Sanders, 451 Mass. 290, 297 (2008). "A prosecutor may,

however, in closing argument, analyze the evidence and suggest

what reasonable inferences the jury should draw from that

evidence. The inference need not be necessary and inescapable,

only reasonable and possible" (quotations and citations

omitted). Commonwealth v. Goddard, 476 Mass. 443, 449 (2017).

While it may have been risky for the prosecutor to assert

that the defendant "[knew] what he was doing when he was getting

the [the victim] into that hotel room," this argument was

permissible because it "found ample support in the evidence"

(citation omitted). Commonwealth v. McCaffrey, 104 Mass. App.

Ct. 642, 658 (2024). As noted above, the defendant filmed and

photographed the victim while she was intoxicated and incoherent

in the hotel bathtub and then threatened to share the video

recordings and photographs with her boss, family, and DCF if she

pursued criminal charges against him.

Likewise, the prosecutor's assertion that the victim was

"[a]bsolutely not" consenting was supported by the video

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recordings, which established that she repeatedly pleaded with

the defendant to stop digitally penetrating her vagina, and the

jail calls with the defendant's ex-girlfriend in which he

admitted that he knew the victim was drunk. There was no error.

Second, the defendant argues that the prosecutor improperly

referred to facts not in evidence when she addressed the

defendant's impeachment of the victim's testimony that she would

never allow the defendant to photograph her nude because she was

uncomfortable with her body. On cross-examination of the

victim, the defendant played recorded jail calls in which the

victim offered to send the defendant nude photographs of

herself. The victim also admitted that she actually did send

the defendant photographs of herself in her underwear. The

prosecutor argued:

"And those calls that you heard while she was on cross-
examination about taking those pictures, you listen close
enough and common sense and life experience will tell you
she was drinking during those calls. And clearly, [the
victim] has an issue with alcohol, but that is not
something that you should be holding against her."

Again, there was no objection.

"[C]losing arguments must be limited to facts in evidence

and the fair inferences that may be drawn from those facts."

Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). See

Commonwealth v. Niemic, 483 Mass. 571, 592 (2019) ("a prosecutor

may not argue facts not in evidence or misstate the evidence").

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"It is well established that it is proper to ask a jury to rely

on their common sense and life experience in assessing evidence

and credibility." Commonwealth v. Salazar, 481 Mass. 105, 117

(2018).

The prosecutor was permitted to ask the jury to use their

"common sense and life experience" to determine if the victim

was intoxicated during the calls, and by inference, how this

might have affected her decision to send photographs to the

defendant. This was especially reasonable, given the extensive

testimony about the victim's alcohol consumption when she was

with the defendant. There was no error.

Finally, the defendant argued that the prosecutor

improperly vouched for the credibility of the victim. The

prosecutor argued:

"You had an opportunity to see [the victim] here. And as
the [j]udge explained to you about assessing the
credibility of the witnesses, think about how she was when
she went and she talked about those videos. When she had
to go and show you her naked body in that bathtub . . . ."

Defense counsel made a timely objection that this was improper

vouching for the victim's credibility.

"A prosecutor engages in improper vouching if he or she

expresses a personal belief in the credibility of a witness, or

indicates that he or she has knowledge independent of the

evidence before the jury" (quotation and citation omitted).

Commonwealth v. Martinez, 476 Mass. 186, 199 (2017). But again,

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a prosecutor may urge the jury to draw reasonable inferences

from the evidence. Goddard, 476 Mass. at 449. More

specifically, a prosecutor may "state logical reasons based on

inferences from the evidence why a witness's testimony should be

believed." Martinez, supra at 199.

On the other hand, "a prosecutor may not argue that a

victim is credible simply because she appeared to testify in

court." Commonwealth v. Polk, 462 Mass. 23, 39 (2012). But

"[w]here . . . defense counsel in his closing argument

challenged the credibility of the alleged victim, a prosecutor

acts properly in inviting the jury to consider whether the

victim has a motive to lie, and identifying evidence that

demonstrates that the victim's testimony is accurate and

reliable." Id. at 39-40.

Here, the defense placed the victim's credibility at the

heart of his defense and his closing argument. In response, the

prosecutor did not assert that the victim was credible at all,

much less "because she appeared to testify in court." Polk, 462

Mass. at 39. Rather, the prosecutor properly asked the jury to

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consider the victim's demeanor in assessing her credibility.4

Id. There was no error.5

Judgments affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.6),

Clerk

Entered: November 14, 2025.

4For example, the prosecutor asked the jury to consider the
victim's demeanor "when she went and she talked about these
videos."

5Furthermore, any potential improper vouching would not
constitute prejudicial error in this case, considering the
overwhelming evidence of the defendant's guilt.

6 The panelists are listed in order of seniority.

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