Commonwealth v. Arthur Mudde.

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-786

COMMONWEALTH

vs.

ARTHUR MUDDE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of

aggravated rape as a joint venturer with his codefendant, Duc

Minh La.1 On appeal, he claims that he received ineffective

assistance of counsel, the prosecutor made misstatements of the

evidence in her closing argument, and that several witnesses

gave improper cumulative first complaint testimony. We affirm.

1. Ineffective assistance of counsel. The defendant

claims for the first time on appeal that he was deprived of

effective assistance of counsel where his trial counsel did not

present an expert witness to explain alternative possibilities

1The defendant was acquitted of a second count of
aggravated rape.
as to how the defendant's deoxyribonucleic acid (DNA) could have

been found on the victim's genital area. We disagree.

Claims of ineffective assistance of counsel are disfavored

if they are raised for the first time on direct appeal.

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The

exception to this is "when the factual basis of the claim

appears indisputably on the trial record." Commonwealth v. Keon

K., 70 Mass. App. Ct. 568, 573–574 (2007). We are not convinced

that this case falls within the exception.

It is not clear from the record how expert testimony would

have rebutted the evidence against the defendant. Indeed,

because the defendant did not raise this claim in a motion for

new trial, we have no affidavits or testimony from trial counsel

whether his acts or omissions were part of his trial strategy,

nor do we have an affidavit outlining what the testimony of a

putative expert would have been, and we do not have findings

from the trial judge as to the likely impact of this omission.

See Commonwealth v. Alicea, 464 Mass. 837, 850-851 (2013)

(ineffective assistance claim based on failure to call expert

"generally doomed" if not supported by expert's affidavit

disclosing content of potential testimony); Commonwealth v.

Adamides, 37 Mass. App. Ct. 339, 344 (1994) (when counsel fails

to call certain witnesses at trial, record alone provides

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"insufficient factual basis for appellate review"). Because the

defendant's claim of ineffective assistance of counsel on direct

appeal fails to appear indisputably on the record, we decline to

resolve it.2

2. The prosecutor's closing argument. The defendant also

claims that the prosecutor made three material misstatements of

the evidence in her closing argument which requires a new trial.

We disagree.

The first claimed misstatement is that the prosecutor

improperly attributed the selection of the Casamigos tequila to

the defendant. As the defendant did not object to the

prosecutor's remark at trial, we review to determine if there

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

miscarriage of justice. See Commonwealth v. Desiderio, 491

Mass. 809, 815 (2023). There was no error.

2 In any event, we conclude that the omitted expert
testimony did not create a substantial risk of a miscarriage of
justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4
(1994) (if counsel's omission does not present substantial risk
of miscarriage of justice, no basis for ineffective assistance
of counsel claim). The jury convicted the defendant on a joint
venture theory, suggesting that the presence of the defendant's
own DNA on the victim's genitals was immaterial to that
conviction. In addition, the defendant's counsel presented his
DNA transfer theory through cross-examination of the
Commonwealth's DNA experts, and argued it in his closing
argument. Because "the jury were provided with essentially
expert testimony on the subjects on which the defendant claims
he needed expert opinion," Alicea, 464 Mass. at 851, there was
no risk that justice miscarried.

3
The defendant claims that it was the female guests at the

nightclub who requested the Casamigos tequila. That much is

true. Nightclub personnel informed Kearvyn Arne, the

defendant's friend, that, given the number of people at the

table, Arne would have to purchase another bottle of alcohol.

Arne sent a text message to the defendant to ask what type of

alcohol he should purchase, because "the girls" wanted Casamigos

tequila while some of the defendant's friends preferred Hennessy

cognac. The defendant responded to Arne that, if he wanted "us

to hit," i.e., to have sex with the women, that Arne should

purchase the Casamigos because it was "more strong."

Accordingly, the defendant was involved in the selection of the

tequila, and the text messages revealed the reason why. There

was no misstatement.

The defendant next claims, also for the first time on

appeal, the prosecutor's argument improperly connected the

condoms in the defendant's bathroom to the rape. We disagree.

At trial, the victim testified that before the defendant

raped her, he "fidget[ed] with his hands and like sort of

open[ed] something up. [She could] tell he was taking out a

condom." The victim added that he was fidgeting with his hands

near his genital area. From this evidence, it was a reasonable

inference that the condom found in the defendant's bathroom

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trash receptacle was connected to the rape. See Commonwealth v.

Francis, 450 Mass. 132, 142 (2007). After all, "inferences that

support a conviction 'need only be reasonable and possible;

[they] need not be necessary or inescapable.'" Commonwealth v.

Sabin, 104 Mass. App. Ct. 303, 305 (2024), quoting Commonwealth

v. Howe, 103 Mass. App. Ct. 354, 357 (2023). The inference the

prosecutor drew was proper.

Despite this, the defendant maintains that the argument was

nonetheless improper because an earring found in the trash with

the condoms did not belong to the victim. But this argument is

a non sequitur fallacy. It does not logically follow that

because one item in the trash was not connected to the rape, the

other items in the trash could not be connected to the rape.

There were a number of people at the "after party" in the

defendant's apartment, and the earing could easily have been

discarded by one of them or by someone on a different occasion.

There was no error, and thus, no risk that justice miscarried.

The defendant further claims the prosecutor unfairly argued

that the defendant removed the victim's underwear. The

defendant specifically objected to the prosecutor arguing that

"[t]he defendant helped [the victim] out of her clothes and

against her will." The defendant maintained that this implied

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that he "ripped off her dress."3 On appeal, the defendant takes

a slightly different tack, claiming there was no evidentiary

support for the victim's claim that the defendant removed her

underwear because no underwear was ever recovered and she

arrived at the hospital not wearing any.

However, despite acknowledging the victim's testimony that

the defendant removed her underwear, the defendant nevertheless

claims that this was insufficient to provide an evidentiary

basis because it was not corroborated. As a result, he claims

the argument was inflammatory and an improper appeal to the

jury's sympathy. We disagree.

As a starting point, we note that in sexual assault cases,

the victim's testimony is "sufficient, standing alone, to

support a finding [of guilt] beyond a reasonable doubt."

Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).

If a victim's testimony alone is sufficient to support a finding

of guilt, it necessarily is sufficient to support a subsidiary

finding of fact upon which the prosecutor was entitled to rely

in her closing argument. More importantly, a prosecutor is

entitled to marshal the facts in evidence and any fair

inferences drawn from those facts, and to argue "forcefully for

3 Since the defendant timely objected, we review for
prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591
(2005).

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the defendant's conviction" (citation omitted). Commonwealth v.

Rutherford, 476 Mass. 639, 643 (2017). That is what was done

here. There was no error.4

3. Witness testimony. Finally, the defendant claims that

the testimony of witnesses who attended the party at the

defendant's apartment, including the victim, provided non-

probative and improper additional corroborative complaint

testimony. We disagree.5

"If independently admissible evidence, 'other than that

specifically and properly designated as first complaint

testimony, serves no purpose other than to repeat the fact of a

complaint and thereby corroborate the complainant's accusations,

it is inadmissible.'" Commonwealth v. Dargon, 457 Mass. 387,

399-400 (2010), quoting Commonwealth v. Arana, 453 Mass. 214,

229 (2009). "However, if that evidence does serve a purpose

4 This conclusion is buttressed by the judge's thoughtful
and thorough instructions to the jury to rely on their own
recollection of the evidence, and that closing arguments are not
evidence. The judge also provided the jury with written copies
of his instructions.

5 The defendant also takes issue with a portion of Theresa
Barrera's first complaint testimony, who could not remember who
called the police or what was said to the police. However, this
was not subject to any objection, was brought out on cross-
examination, and was collateral to the central issue at trial.
The defendant merely mentions this portion of Barrera's
testimony in his brief, and fails to claim, let alone explain,
how he was prejudiced by this.

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separate and apart from the first complaint doctrine, the judge

may admit it 'after careful balancing of the testimony's

probative and prejudicial value'" (citation omitted). Dargon,

supra at 400.

The victim properly testified to the circumstances of

sexual assault. Her testimony was clearly relevant and

probative to the defendant's trial on the indictments. It was

entirely proper for her to describe what happened, including

(without objection) that after the codefendant raped her, she

ran from the apartment, she was "freaking out" about what had

happened, and she was "yelling" to Theresa Barrera and Zuleyma

Calderon that the defendant and codefendant had "raped [her]."

See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010) (victim,

"as well as the first complaint witness, may testify to the

details of the complaint itself"). Moreover, "[e]vidence 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. Aviles, 461 Mass. 60, 69 (2011), quoting Arana,

453 Mass. at 225. Given the victim's level of intoxication,

this evidence was admissible and relevant to her state of mind.

There was no error, and thus, no risk that justice miscarried.6

6 We further note that the defendant did not suffer any
unfair prejudice by this testimony because he relied on
discrepancies between it and the first complaint witness's

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The defendant's remaining claim, that the testimony of

other witnesses provided improper additional corroborative

complaint evidence, is without merit. Zuleyma Calderon provided

relevant testimony regarding seeing the victim lying in the

defendant's bed, following the codefendant into the living room,

recording the scene on her cell phone, and showing the

codefendant's face in the video because she believed he had just

harmed the victim. Barrera and Calderon accompanied the victim

out of the apartment and put her in an Uber that took her home.

This testimony was relevant to how investigators identified the

codefendant, as well as how the victim left the apartment, and

it was not first complaint evidence.

The remaining witnesses, Kearvyn Arne, Hida Rahma, and

Julia Arnett, the Sexual Assault Nurse Examiner (SANE), are also

challenged by the defendant as having provided "backdoor first

complaint" testimony. However, the defendant's brief fails to

cite to the trial record to show which testimony was improper.

In this posture, the argument is waived. See Jeevanandam v.

Bharathan, 496 Mass. 103, 109 n.12 (2025); Mass. R. A. P.

16 (a) (9), as appearing in 481 Mass. 1628 (2019).

testimony as part of his defense. See McCoy, 456 Mass. at 850-
851.

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Even if the claim was not waived, these witnesses did not

provide additional corroborative complaint testimony. Arne and

Rahma both testified as percipient witnesses to the events of

that evening. Arne testified to his interactions with the

defendant, planning the evening's events, and their text

messages from before and after the rape. All of this evidence

was relevant and probative of the defendant's guilt. Similarly,

Rahma testified to her night out with the victim at the

nightclub and meeting the defendant. This was relevant to

identifying him.

Relative to the SANE nurse, she testified to the collection

and analysis of the DNA evidence, as well as her physical

examination of the victim. This served the purpose of providing

necessary information related to the investigation of the

matter. The judge even instructed the jury that Arnett was not

offering an opinion on whether a sexual assault occurred. The

testimony of these witnesses was admissible for reasons other

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than corroborating the victim's allegations, and there was no

abuse of discretion in admitting it in evidence.

Judgment affirmed.

By the Court (Meade,
Hodgens & Allen, JJ.7),

Clerk

Entered: April 17, 2026.

7 The panelists are listed in order of seniority.

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