Commonwealth v. Jeffrey E. Knight.

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-547

COMMONWEALTH

vs.

JEFFREY E. KNIGHT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was a middle-school teacher. Following in-

class incidents involving the same victim at different ages, a

jury convicted the defendant of counts two and three of a four-

count complaint, charging indecent assault and battery on a

child under fourteen and indecent assault and battery in

violation of G. L. c. 265, §§ 13B and 13H. A second count

alleging indecent assault and battery on a child under fourteen

involving the same victim (count one) was dismissed at the

request of the Commonwealth, and the jury returned a not guilty

verdict on an additional count charging assault and battery

(count four). We consider both the defendant's direct appeal

from the judgments of conviction and his appeal from the order
denying his motion for a new trial and request for

postconviction discovery. We affirm.

Background. The victim, whom we will call Maya, was a

student in the defendant's eighth-grade science, technology,

engineering, and mathematics (STEM) class and was thirteen at

the time of the first alleged assault and fourteen at the time

of the second. The class involved hands-on work and "kind of

shop stuff." Maya testified that she felt uncomfortable in the

defendant's class when he looked down her shirt, which he did to

girls "every time [they] were cleaning up," and that, during an

eighth-grade project with Legos that formed the basis for count

three (Lego incident), he came to stand behind her, straddling

her back leg, with his body pressed against a portion of her

back and her buttocks. Maya testified that the defendant often

positioned himself against her like this.

As to the conduct alleged in count two, Maya testified

that, in December of eighth grade, she was using a handsaw to

cut wood as part of a sled-making project when she asked the

defendant to finish a cut for her (sled incident). The

defendant pressed his body against the back of Maya's body and

she could feel his erect penis in the crack between her

buttocks.

Additional facts relevant to specific arguments are

detailed below.

2
Discussion. The defendant has raised many arguments.

Specific arguments not mentioned have been considered and

determined not to require discussion. See Commonwealth v.

Domanski, 332 Mass. 66, 78 (1954).

1. Prior bad acts. Evidence of a defendant's prior bad

acts may be admissible for nonpropensity purposes, such as

proving "motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident."

Commonwealth v. Teixeira, 486 Mass. 617, 626 (2021), citing

Mass. G. Evid. § 404(b)(2) (2020). "Even where relevant, prior

bad act evidence 'will not be admitted if its probative value is

outweighed by the risk of unfair prejudice to the defendant.'"

Id., quoting Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).

Such evidence has probative value when it "show[s] a common

pattern or course of conduct" and is "sufficiently related in

time and location to be logically probative." Commmonwealth v.

King, 387 Mass. 464, 472 (1982).

In weighing the risk of unfair prejudice, a court "tak[es]

into account the effectiveness of any limiting instruction."

Commonwealth v. Chalue, 486 Mass. 847, 866 (2021). "On appeal,

the decision will stand absent a clear error of judgment in

weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). Teixeira, 486 Mass. at 627.

3
We grant trial judges "great latitude and discretion" to weigh

the probative value of bad act evidence against the potential

for prejudice (citation omitted). Chalue, supra at 869.

a. Pretrial ruling, Althea's prior bad act testimony.

Before trial, the Commonwealth moved to admit bad act testimony

from three named witnesses: Althea, Edith, and Jade (all

pseudonyms). The defendant filed a motion "to preclude the

Commonwealth from introducing any bad act evidence and all

references to any of the defendant's prior or subsequent bad

acts as impeachment evidence"; it named no witnesses. Althea,

Edith, and Jade later appeared on the Commonwealth's witness

list.

At the hearing, defense counsel introduced the issue by

telling the judge, "[t]he big issue in the prior bad acts is

going to be they want to call . . . [Althea]." The remainder of

that hearing and the judge's written order addressed only

Althea's anticipated testimony. During the hearing, the judge

said, "[i]f there's a pattern of conduct with [Maya] where he

had alleged with other girls gone up behind them during a school

project, pressed his body against them, and they felt an erect

penis that is a modus operandi, that is a pattern of conduct

that I will allow in." In his ruling, the judge excluded as

unfairly prejudicial additional bad act testimony from Althea

4
related to an incident where the defendant allegedly grabbed her

breast in a back room, away from the rest of the class.1

We review the admission of Althea's prior bad act testimony

for prejudicial error and find none. See Commonwealth v. Grady,

474 Mass. 715, 719-720 (2016). Althea testified that, like

Maya, she had been a student in the defendant's seventh-grade

STEM class; like Maya, she felt the defendant press his erect

penis against her buttocks; like Maya, this happened to Althea

when she was working on shop-type projects. Before admitting

this testimony, the judge properly balanced the probative value

against the prejudicial nature and concluded that the evidence

"suggests that, rather than being an isolated incident, the

[d]efendant's conduct towards [Maya] was part of his modus

operandi for selecting and assaulting female students under the

pretext of helping them with class work," and was admissible "to

negate the defenses that the [d]efendant's conduct was

accidental or mistaken for assaultive when it really was not."

The judge noted that the behaviors against Althea and Maya "are

1 We are not persuaded that "the prosecutor incorrectly
represented that [Althea] would be the only prior bad act
witness." This position is inconsistent with the Commonwealth's
witness list and with argument at the prior bad act hearing, and
is not the only reading of the cited portion of the trial
transcript. While the record amply demonstrates that the
parties devoted most of their attention to litigating the
admissibility of Althea's testimony about the defendant's bad
acts, it also demonstrates that the defense were on notice of
the other witnesses.

5
sufficiently connected because they are factually similar in a

number of key ways," including the girls' similar ages and their

presence in the defendant's STEM classes. See Commonwealth v.

Moran, 101 Mass. App. Ct. 745, 748 n.3 (2022).

Balancing the probative value of the evidence against the

risk of unfair prejudice, the trial judge determined that "[t]he

probative value of the in-classroom conduct is substantially

greater than its risk of unfairly prejudicing" the defendant and

noted that a limiting instruction would be given "to further

reduce any risk of unfair prejudice." See Mass. G. Evid.

§ 404(b)(2) (2021). He then gave a forceful and complete

limiting instruction before Althea testified, mitigating any

prejudice. See Commonwealth v. Dorazio, 472 Mass. 535, 542

(2015); Commonwealth v. Montez, 450 Mass. 736, 746 (2008).

b. Additional bad act testimony. In addition to Althea's

testimony about the defendant's pressing his penis against her

buttocks, Althea and three other witnesses testified about other

bad acts by the defendant.

i. Althea's additional testimony. Althea testified that:

(1) more than once, she saw the defendant looking at other

girls' buttocks in a way that made her feel uncomfortable;

(2) the defendant engaged in a physical altercation with one

male student and put his hands on another, threatening to "put

[his] head through this fucking wall"; and (3) Althea heard the

6
defendant make crude comments about women and comment to another

student about that student's body.

ii. Edith's testimony. Another female former student,

Edith, testified that, for female students, the defendant would

"come over and approach you from behind and kind of assist your

hands as his arms, like, wrapped around you," and that the "full

length of his arm" would be "caressing [her] arm and upper back"

in a way that she found "uncomfortable and intimidating."

iii. Jade's testimony. A third female former student,

Jade, testified without objection that the defendant leaned over

her and other girls when they were working on projects in STEM

class; that his shirt touched her back and she felt

uncomfortable; that she felt his "front privates" against her

buttocks; and that he looked at girls' breasts in class. She

also described the defendant's anger in class, saying "it still

honestly affects me" and characterizing the whole class as

"intimidate[d]."

iv. James's testimony. A male former student, James (also

a pseudonym), echoed the testimony about the defendant's looking

at the female students' buttocks and testified about the

defendant's having female students pick up fallen pencils.

James also testified that the defendant had threatened to "shove

[James's] head through a wall" and that the defendant was

"angry" in class.

7
In all, four women (including the victim) testified that

they had experienced an unwanted touching by the defendant

during a STEM class when he was their seventh or eighth-grade

teacher. Three women and a man testified that the defendant was

visibly angry in class and threatened male students with

physical violence. From a review of the record, including the

transcripts, we conclude that neither the appearance of these

witnesses nor the substance of their testimony came as a

surprise to the defendant. While these witnesses' testimony was

not specifically challenged in the defendant's motion in limine,

and therefore that motion did not preserve the issue for appeal,

see Grady, 474 Mass. at 719-720, the judge determined that its

probative value was not outweighed by the danger of unfair

prejudice. See Commonwealth v. Samia, 492 Mass. 135, 148 (2023)

(absent explicit weighing of particular evidence, determination

of admissibility "is implicit in the judge's consideration of

the tender of, and the objection to, the evidence and judge's

ultimate decision to admit it" [citation omitted]).

For the objected-to statements, we review any error under

the prejudicial error standard. Commonwealth v. Cruz, 445 Mass.

589, 591 (2005). "This requires a two-part analysis: (1) was

there error; and (2) if so, was that error prejudicial." Id.

"An error is not prejudicial if it 'did not influence the jury,

or had but very slight effect.'" Id., quoting Commonwealth v.

8
Flebotte, 417 Mass. 348, 353 (1994). We review unobjected-to

portions of the testimony for a substantial risk of a

miscarriage of justice, asking whether the error, if any, was

"sufficiently significant in the context of the trial to make

plausible an inference that the [jury's] result might have been

otherwise but for the error" (citation omitted). Commonwealth

v. Alphas, 430 Mass. 8, 13 (1999).

"Prior bad acts involving someone other than the victim are

admissible so long as they are connected in time, place, or

other relevant circumstances to the particular sex offense for

which the defendant is being tried" (quotation and citation

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

(2015). In a case of sexual assault, testimony about prior

assaults that took place in similar circumstances, with similar-

aged victims, and were "almost identical in nature," "tend[s] to

show the defendant's intent and inclination to commit the

charged acts and [] corroborate[s] the pattern of conduct

testified to by the victim." Id. at 55-56. "To be admissible,

evidence of sexual assaults with persons other than the victim

must form a temporal and schematic nexus such that it shows a

common course of conduct regarding the victims" (quotation and

citation omitted). Id. at 56.

We have little difficulty concluding that the challenged

evidence about the defendant's approaching female students from

9
behind, leaning over them, and pressing his body into them was

probative, and the defendant does not argue otherwise. We turn

then to the second step and ask whether the judge erred or

abused his discretion in finding that its probative value was

not "outweighed by the risk of unfair prejudice to the

defendant" (quotation and citation omitted). Teixeira, 486

Mass. at 626.

The trial judge did not err in admitting this testimony.

As he concluded, the challenged testimony was relevant to

disprove defenses of mistake or accident, to establish a common

plan or pattern of behavior, and to show the defendant's modus

operandi. Where the defense was that Maya either fabricated the

assaults or, alternatively, misunderstood what she felt,

mistaking a measuring tape (sometimes referred to as a ruler)

for an erect penis, the probative value of the challenged

testimony was not outweighed by the risk of unfair prejudice.

Furthermore, intentional touching was an element of the two

offenses of which the defendant was convicted, see Commonwealth

v. Melo, 95 Mass App. Ct. 257, 261-262 (2019), making evidence

of a common plan or pattern of touching female students in this

manner highly probative. Against that backdrop, evidence that

the defendant stood too close to other female students, put his

arms around them, approached them from behind, pressed his body

into the backs of their bodies, and breathed heavily close to

10
their faces, was, as the trial judge ruled, probative of a

common plan and to negate these defenses. See Commonwealth v.

Feijoo, 419 Mass. 486, 494-495 (1995) (evidence of behavior with

other students would have been admissible at separate trials

where defendant karate teacher used relationship with students

and similar modus operandi to persuade each to engage in sexual

conduct with him). In the circumstances, the danger of unfair

prejudice did not outweigh the probative value of this evidence.

The defendant also challenges testimony about non "modus

operandi" bad acts, including testimony about the defendant's

other inappropriate behaviors toward female students and

testimony about his angry or violent threats to male students.

Like the trial judge, we conclude that the latter should not

have been admitted beyond what was necessary to explain the

students' reluctance to come forward with their allegations.

But these statements collectively did not give rise to a

substantial risk of a miscarriage of justice. See Alphas, 430

Mass. at 13.

The defendant neutralized some of this testimony by

agreeing that "for effect because [he's] thinking about their

safety," he "yelled at students at times." The challenged

testimony amounted to a small portion of the trial evidence and

in this context -- in which the charged crimes did not involve

angry behavior and the defendant chose to testify, giving the

11
jury an opportunity to see his demeanor -- did not threaten to

overwhelm or distract from the more serious crimes for which the

defendant was on trial. Finally, the students' testimony about

the defendant's temper was cumulative, not only of his own

testimony, but also of the principal's.

2. Cross-examination of defendant. The defendant

testified at trial. On cross-examination, the prosecutor asked

him three questions about whether either Maya or Althea had

reasons to fabricate their testimony about him. Defense counsel

did not object.

"It is improper to ask a witness to comment on the

credibility of other witnesses"; in so doing, "a lawyer implies

to a jury that differences in the testimony of the witness and

any other witness could only be the result of lying and not

because of misrecollection, failure of recollection or other

innocent reason" (quotations and citation omitted).

Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984). These

three questions were improper.2

Although improper, in consideration of the entire record,

these few questions did not give rise to a substantial risk of a

2 The Commonwealth's position in its brief that the
"questions would have been better left unsaid" is not a
sufficient acknowledgement of the error.

12
miscarriage of justice.3 There were only three of them; they did

not become a theme of the cross-examination; they were

consistent with the defense theory that Maya fabricated the

assaults; and they were not mentioned by the prosecutor in

closing.4 Moreover, the defendant was not put in a situation

where he was required to testify that another witness was lying.

He handled the questions intelligently and avoided claiming

other witnesses were not truthful. Compare Commonwealth v.

Sanchez, 96 Mass. App. Ct. 1, 5-7 (2019) (no prejudicial error

where prosecutor asked defendant five questions about whether

victim had "lied," as evidence was otherwise compelling; defense

was that victim did not tell truth; and prosecutor did not refer

to testimony in closing), and the cases collected in

Commonwealth v. Johnson, 412 Mass. 318, 328 (1992) (same), with

Long, 17 Mass. App. Ct. at 707-708 (asking defendant at least a

3 We decline the defendant's invitation to review for
prejudicial error. "An objection at the motion in limine stage
will preserve a defendant's appellate rights only if what is
objectionable at trial was specifically the subject of the
motion in limine." Grady, 474 Mass. at 719. This rule applies
only where the defendant "has already sought to preclude the
very same evidence at the motion in limine stage, and the motion
was heard and denied." Id. Although the defendant filed a
pretrial motion to preclude the Commonwealth from asking
witnesses "for an opinion regarding the credibility of another
witness," the motion was neither heard nor ruled on. In the
circumstances, it was incumbent on trial counsel to object at
trial in order to protect the defendant's appellate rights.
4 Having reviewed the Commonwealth's closing, we do not

agree that the prosecutor used the defendant's answers to these
questions in closing.

13
hundred questions about testimony of other witnesses and

improperly communicating to jury that defendant was lying).

3. Challenged witness testimony. The defendant takes

issue with the testimony of four witnesses: Maya's mother,

Maya, Joanne (a pseudonym for another female former student),

and assistant principal Sandler. Maya's mother's testimony was

not supplemental first complaint testimony. On direct

examination, she did not, as the defendant now maintains,

"repeat[] what [Maya] and others told" her, but rather described

the school personnel's responses to Maya's disclosures. This

testimony was permissible. One defense theory was that Maya had

either fabricated or exaggerated her claims; in support of this

theory, the defendant sought to introduce evidence of the school

officials' reactions to Maya's initial disclosures, which

reactions, he implied, were inconsistent with receiving a report

of a sexual assault. This testimony from Maya's mother was

permissible rebuttal to that theory. See Commonwealth v.

Bryant, 482 Mass. 731, 735 (2019).

We are likewise unpersuaded by the claim based on two

snippets of Maya's first complaint-related testimony. While the

snippets were hearsay, the references were fleeting and were not

repeated, and -- had there been an objection -- could have been

admitted for context and state of mind, rather than for the

truth of the matter asserted. See Commonwealth v. Trotto, 487

14
Mass. 708, 727-728 (2021). The claim based on Joanne's

challenged testimony is likewise unavailing. Joanne was

available for cross-examination and impeachment, and it was for

the jury to determine whether and how much of her testimony to

credit. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005),

S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011) ("If, from

the evidence, conflicting inferences are possible, it is for the

jury to determine where the truth lies, for the weight and

credibility of the evidence is wholly within their province").

Sandler's unobjected-to testimony about learning of Maya's

disclosures and Sandler's conversation with Maya's mother

similarly created no substantial risk of miscarriage of justice.

The defense had introduced guidance counselor Leanne McCarthy's

interview of Maya and Sandler's notes about Sandler's

conversations with McCarthy as topics on direct examination,

consistent with the defense attack on Maya's credibility,

seeking to show that her story was enhanced over time. The

challenged questions by the prosecutor addressed this testimony.

Having opened the door by asking Sandler about these statements

in the witness's notes, counsel's failure to object can be

understood as a recognition of the latitude afforded the

Commonwealth in responding. See Commonwealth v. Parreira, 72

Mass. App. Ct. 308, 318 (2008) (where defendant's strategy

involved highlighting to whom, what, and when victim disclosed,

15
no error in permitting Commonwealth to elicit further testimony

on same topic). The admitted testimony did not exceed the

bounds of what had been explored on direct examination and its

admission was not error. As to the admission of Sandler's

notes, the judge properly gave a limiting instruction as to

their use, which the jury are presumed to follow. Commonwealth

v. Watkins, 425 Mass. 830, 840 (1997).

4. Demonstrative evidence. We are not persuaded that the

judge abused his discretion by denying the defendant's request

to demonstrate at trial how his apron and tape measure moved.

"The permission to perform or make experiments or illustrations

in the presence of the jury rest[s] in the sound judicial

discretion of the" trial judge (citation omitted). Commonwealth

v. McGee, 469 Mass. 1, 9 (2014). There was ample evidence from

which the defense could argue that the defendant wore an apron

during the time of the assaults, including a photograph of him

in an apron and witness testimony describing him in an apron.5

The related claim that the judge "unfairly restricted the

defense by prohibiting [a witness] from answering whether Knight

kept his tape measure in his apron pocket" misinterprets the

testimony; the judge sustained an objection to a question about

5 Similarly, we find no merit in the defendant's argument
that counsel should have had another person play the student in
the demonstration of how the defendant might stand behind a
student to help them with a project.

16
the measuring tape that (1) assumed facts not in evidence,

(2) misstated testimony, and (3) was leading. Counsel made no

effort to rephrase the question in an admissible form.6

5. The complaint. a. Lego incident. Citing Commonwealth

v. Barbosa, 421 Mass. 547 (1995), the defendant challenges his

conviction of indecent assault and battery based on the Lego

incident on the ground that the Lego incident was never

presented to the issuing clerk-magistrate and therefore the

defendant was convicted of a charge for which the clerk-

magistrate did not find probable cause. This issue is raised

for the first time on appeal; we review to determine whether the

error, if any, created a substantial risk of a miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. 290, 296

(2002).

We review de novo, viewing the evidence submitted to the

clerk-magistrate in the light most favorable to the

Commonwealth, Commonwealth v. Brennan, 481 Mass. 146, 149

(2018), and assessing "whether the complaint application

contains 'sufficient evidence to establish the identity of the

6 The defendant claims that, even if none are individually
prejudicial, the cumulative effect of the alleged trial errors
is prejudicial. There were only two trial errors -- the
admission of testimony about non "modus operandi" bad acts and
three improper questions to the defendant -- but they were not
prejudicial, and we thus decline to engage in a cumulative
effect analysis.

17
accused . . . and probable cause to arrest him.'" Commonwealth

v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth

v. McCarthy, 385 Mass. 160, 163 (1982). "This standard is

'considerably less exacting than a requirement of sufficient

evidence to warrant a guilty finding.'" Brennan, supra, quoting

Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). "To

establish probable clause, the complaint application must set

forth 'reasonably trustworthy information sufficient to warrant

a reasonable or prudent person in believing that the defendant

has committed the offense.'" Humberto H., supra, quoting

Commonwealth v. Roman, 414 Mass. 642, 643 (1993).

The affidavit in support of the complaint included

allegations that the defendant "would stand behind [Maya] in a

'sex position' and would get close every class she had with him"

(emphasis added), that she could feel his penis against her back

and buttocks, that she first felt this in seventh grade, and

that she felt it on at least three other specified occasions.

Just as the date of an offense is not an essential element, see,

e.g., Commonwealth v. Knight, 437 Mass. 487, 492 (2002), details

like the particular project in which the defendant was involved

are not essential. See Commonwealth v. Hobbs, 385 Mass. 863,

870 (1982) (no grounds for reversal "when the particular terms

of the indictment from which the evidence . . . depart[s] were

merely 'surplusage' -- unnecessary to describe the crime -- and

18
did not mislead the defendant, confuse the jury, or raise the

danger of retrial after acquittal"). Unlike in Barbosa, 421

Mass. at 552, where one indictment might have pertained to

either of two crimes committed on the same date, the allegations

here were sufficient to allege multiple indecent assaults and

batteries occurring on different dates. There was no error.7

b. Amendments to complaint. We likewise discern no error

in the amendments to the complaint.8 We first distinguish

substantive amendments, which are not permitted, from amendments

as to form, which are permitted in the absence of prejudice or

material change. Knight, 437 Mass. at 492; Hobbs, 385 Mass. at

869.

The complaint, brought in September 2018, was twice

amended. The requested amendments related to the dates of

offenses. As the defendant acknowledges, this is ordinarily a

matter of form. See Knight, 437 Mass. at 492. Here, however,

The defendant also challenges his conviction of indecent
7

assault and battery based on the sled incident. The affidavit
in support of the criminal complaint explicitly described the
sled incident -- including that the victim felt the defendant's
penis on her buttocks, that "his voice sounded as if he was
turned on, and that she could hear him breathing" -- and
identified the incident as having happened during the victim's
eighth-grade year. The complaint alleged that Maya was enrolled
in the STEM class for twelve days of her eighth-grade year
before she turned fourteen. Viewing the evidence in the light
most favorable to the Commonwealth, and mindful of the probable
cause standard, we see no error.
8 The defendant was convicted of counts two and three, so we

address only the amendments to those counts.

19
he maintains that, because Maya turned fourteen during the

course of the sexual assaults and different sections of the

statute (carrying different maximum penalties) apply when the

victim is under fourteen, the date changes became substantive.

We need not address this question because we conclude that the

challenged amendments did not have the effect of changing the

victim's age from under fourteen to fourteen or over.9

For count two (sled incident), the alleged date changed

twice. It began as a date on which Maya was thirteen then

changed (1) to a range of dates including when Maya was thirteen

and fourteen, and (2) again to a range of dates on which Maya

was thirteen. Similarly, for count three (Lego incident), the

alleged date was initially a single date on which Maya was

fourteen and was twice amended to allege a range of dates during

which she was either thirteen and fourteen or -- as tried --

fourteen. Where the defendant was charged with the same crimes

of which he was convicted, and where the charges, as tried,

carried the same potential penalties as those for which he was

9 We note that "[a]ge is an element of the offense of
indecent assault and battery on a child under the age of
fourteen," but not an element of the charge of indecent assault
and battery on a person fourteen or older. Commonwealth v.
Dobbins, 96 Mass. App. Ct. 593, 595-596 & n.3 (2019). This
distinction is an independent reason for concluding that the
amendment to count three was one of form.

20
originally charged, the amendments to the dates of offense were

not substantive.10

6. Denial of motion for new trial and request for

postconviction discovery. The defendant maintains that his

motion for a new trial based on ineffective assistance of

counsel and request for postconviction discovery were

erroneously denied. We address his arguments in turn, bearing

in mind that a motion for a new trial may be granted "if it

appears that justice may not have been done." Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). We examine the

denial of a new trial motion only for "a significant error of

law or other abuse of discretion," (citation omitted),

Commonwealth v. Lys, 481 Mass. 1, 4 (2018), as such motions

should be "granted only in extraordinary circumstances."

Commonwealth v. Comita, 441 Mass. 86, 93 (2004). Where, as

here, the "motion judge and the trial judge were one and the

same, we extend special deference." Commonwealth v. DeJesus, 71

Mass. App. Ct. 799, 811 (2008).

a. Trial counsel's performance; prejudice to defendant. A

successful claim for ineffective assistance of counsel requires

10 We decline to consider the defendant's claim that
reversal is required even if the amendments were as to form,
which does not rise to the level of appellate argument. See
Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628
(2019).

21
a showing that (1) counsel's performance fell "measurably below

that which might be expected from an ordinary fallible lawyer";

and (2) such conduct deprived the defendant of "an otherwise

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). We give deference to

counsel's tactical decisions unless they were "manifestly

unreasonable" when made. Commonwealth v. White, 409 Mass. 266,

273 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728

(1978).

i. Lack of motion to dismiss. The defendant maintains

that trial counsel was ineffective in not moving to dismiss the

complaint. We considered the sufficiency of the complaint to

support counts two and three in our discussion of the amendments

thereto and found it adequate. Failure to pursue a futile

motion does not amount to ineffective assistance of counsel.

Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert.

denied, 520 U.S. 1245 (1997).

We also perceive no ineffective representation in not

filing a motion to dismiss based on the submission of the

complaint application to two assistant clerks-magistrate -- if

indeed that happened, a factual matter as to which we express no

opinion. See Commonwealth v. McCravy, 430 Mass. 758, 763 (2000)

22
(after no bill, resubmission of evidence to different grand jury

not prohibited).11

ii. Failure to object during cross-examination. The judge

concluded, and we agree, that defense counsel erred by not

objecting to the prosecutor's questions about two witnesses'

motivations to lie. We exercise our discretion to reach this

issue, despite its being inadequately briefed, because the judge

and we have concluded there was error.12 "A witness should not

be asked and is not permitted to comment on the credibility of

another witness because '[t]he fact finder, not the witness,

must determine the weight and credibility of testimony.'"

Sanchez, 96 Mass. App. Ct. at 5, quoting Commonwealth v.

Triplett, 398 Mass. 561, 567 (1986). Here, the prosecutor asked

11 For these same reasons, the defendant cannot prove that
the postconviction discovery he sought "would have materially
aid[ed] the defense against the pending charges" (citation
omitted), Commonwealth v. Morgan, 453 Mass. 54, 62 (2009), such
that it was error for the judge to deny his request.
12 We decline to exercise our discretion to consider the

argument that counsel was ineffective through failure to "object
to numerous instances of inflammatory and prejudicial prior bad
act testimony and ultimate issue testimony" from a number of
other witnesses, supported only by citations to pages of the
transcript and neither individually described nor analyzed. See
Mass. R. A. P. 16 (a) (4). We have determined that the
admission of this testimony was not prejudicial, and counsel has
presented no reason for us to conclude that, in the absence of
this testimony, the outcome would have been different. See
Commonwealth v. Amirault, 424 Mass. 618, 652 (1997), quoting
Strickland v. Washington, 466 U.S. 668, 693 (1984) ("not every
error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding").

23
the defendant to do just that, three times asking variations on

the question: What would be the witness's motivation to lie?

Each time, without objection, the defendant answered.

As discussed above, the admission of these statements did

not give rise to a substantial risk of a miscarriage of justice.

This is dispositive of the defendant's claim that counsel's

failure to object to them rose to the level of ineffectiveness

that would warrant a new trial. See Commonwealth v. LaChance,

469 Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 (2015)

("To prevail on a claim of ineffective assistance of counsel,

however, a defendant must also show that counsel's deficiency

resulted in prejudice . . . which, in the circumstances of

counsel's failure to object to an error at trial, is essentially

the same as the substantial risk standard").

iii. Six claims of foregone exculpatory or impeachment

evidence. The defendant renews his claim that counsel was

ineffective by not introducing evidence that in 2017, before any

of the dates alleged in the complaint as amended, the defendant

had been diagnosed with erectile dysfunction, since this

evidence -- he posits -- "was critical to rebut [Maya]'s claim

24
that what she felt for 60 seconds was a 'really hard' erect

penis."13

We have reviewed the medical evidence proffered to the

District Court judge about the defendant's diagnosis and

conclude that he neither erred nor abused his discretion when he

found that the decision not to introduce that evidence (1) was

not "manifestly unreasonable" when made (citation omitted),

White, 409 Mass. at 273, and (2) did not deprive the defendant

of "an otherwise available, substantial ground of defence."

Saferian, 366 Mass. at 96. The diagnosis was ambiguous; it did

not undermine the notion that the defendant could achieve an

erection; and, to the extent the defendant quibbles with Maya's

testimony as to the durations of the assaults, that is not

relevant to guilt or innocence, nor so central to Maya's

credibility that we are persuaded it was manifestly unreasonable

not to introduce this evidence at trial.

We are equally unpersuaded that counsel was ineffective by

not trying -- whether through the testimony of Maya's mother or

through impeachment of Maya -- to cast doubt on Maya's testimony

by contrasting it with her initial statements to McCarthy or by

trying to bring in unrelated, purportedly false statements by

13In their affidavit in support of the motion for a new
trial, trial counsel explained that they decided against using
this information at trial because they believed the diagnosis
postdated the bad acts committed against Althea.

25
Maya. "In cases where tactical or strategic decisions of the

defendant's counsel are at issue, we conduct our review with

some deference to avoid characterizing as unreasonable a defense

that was merely unsuccessful." White, 409 Mass. at 272.

"Although the failure to pursue an 'obviously powerful form of

impeachment' can theoretically rise to the level of

unreasonableness that would constitute ineffective assistance,

we have repeatedly stated that, generally, the failure to

impeach a witness does not, on its own, constitute ineffective

assistance" (citation omitted). Commonwealth v. Valentin, 470

Mass. 186, 190 (2014). See id. (not ineffective assistance not

to impeach percipient witness who testified that murder

defendant said about victim, "[D]ie, motherfucker"; counsel used

other methods to highlight inconsistent testimony). These

decisions were not ineffective assistance of trial counsel.

As to the claim that it was ineffective for counsel not to

offer the grand jury testimony of a nontestifying witness

(McCarthy), the defendant has made no showing that this

testimony would have been admissible. See Commonwealth v.

Clemente, 452 Mass. 295, 314-315 (2008), cert. denied, 555 U.S.

1181 (2009), and abrogated in part on other grounds by

Commonwealth v. Zanetti, 454 Mass. 449 (2009) (prior grand jury

testimony of unavailable witness admissible where "the party

seeking the admission of the grand jury testimony can establish

26
that the Commonwealth had an opportunity and similar motive [to

that of a jury trial] to develop fully a [now unavailable]

witness's testimony at the grand jury" [emphasis added]). This

was not ineffective.

iv. Failure to request jury instructions. Given that the

trial judge agreed that a limiting instruction was appropriate

for Althea's testimony, and that he gave such an instruction, it

seems likely that had he been asked he would have given a

similar instruction contemporaneously with other witnesses'

testimony. The defendant asserts that trial counsel's admitted

oversight in not requesting such instructions amounted to

ineffective assistance. Not every oversight rises to the level

of ineffective assistance of counsel, however, and where the

judge gave the limiting instruction in connection with Althea's

testimony, and then gave a general instruction about prior bad

act evidence as part of his final instructions, we are not

convinced that any failure resulted in prejudice to the

defendant. See Commonwealth v. Delong, 60 Mass. App. Ct. 122,

131-132 (2003), S.C., 60 Mass. App. Ct. 528 (2004) (reasonable

tactical decision not to request limiting instruction for bad

act evidence, "as such instructions typically highlight the

permissible uses of evidence, as well as the limitations").

Nor was it manifestly unreasonable not to ask for an

instruction on accident or the lesser included offenses of

27
assault and battery. The defense was that the touchings never

happened, not that they happened but were accidental or not

indecent. Counsel strategically chose not to pursue an accident

defense because it was inconsistent with this defense; not

asking for the lesser-included instruction was also consistent

with this strategic decision. Trial counsel also recalled that

the judge rejected a similar request from the prosecutor, and

the judge and prosecutor recalled that the judge rejected the

request when the defendant objected. Finally, the instruction

was not warranted where, as discussed below, both the sled

incident and the Lego incident involved an indecent touching

based on Maya's testimony.

v. Claimed errors by prosecutor. Citing to pages of the

trial transcript and the record, and without further discussion

or explanation, the defendant claims that the prosecutor

violated pretrial rulings, thus rendering the trial unfair. To

the extent we are sufficiently informed to be able to consider

the issue, for the reasons described by the trial judge, we

disagree.

We are similarly unpersuaded by the claim that the

prosecution improperly coached Maya at a break in her testimony.

The record reflects that, without interruption or objection,

counsel questioned Maya about this discussion, and she testified

that "the district attorney's office" told her she was "doing

28
well." There is no record support for the defendant's

contention that this conversation "led to [Maya] changing her

testimony" about her initial meeting with McCarthy. We see no

error in the trial judge's conclusion that this interaction did

not necessitate a new trial.

It is the responsibility of a trial judge to determine

whether testimony may incriminate a witness. Pixley v.

Commonwealth, 453 Mass. 827, 832 (2009). After hearing Officer

Lopes's testimony, the judge -- sua sponte, it appears -- raised

a concern about legal exposure for other school officials who

were mandated reporters and would testify. The judge told the

lawyers, "I am going to put it on you" to inform the witnesses

that he would conduct a voir dire on the issue. Where McCarthy,

the school guidance counselor and a mandated reporter, had been

aware of the alleged sexual assaults on Maya for approximately

three months before disclosing them to the Department of

Children and Families, she was so exposed. See G. L. c. 119,

§§ 21 (defining "mandated reporter"), 51A (c). On this record,

we see no error in the judge's determination that there was no

prosecutorial misconduct in the circumstances surrounding

McCarthy's decision not to testify. See Pixley, supra at 834

("[A] defendant has no constitutional right to the testimony of

a defense witness who invokes [their] privilege against self-

incrimination").

29
vii. Cumulative effect of any errors. Because we discern

error only in the failures to object to non "modus operandi" bad

act evidence and the three questions on cross-examination of the

defendant, which errors did not create a substantial risk of a

miscarriage of justice, we need not consider the cumulative

effect of trial counsel's decisions.

b. Lack of evidentiary hearing and ruling on

reconstruction of record.

"Whether to hold a hearing on a motion for a new trial is
within the judge's discretion, . . . and the judge may
'decide a motion for a new trial without an evidentiary
hearing where no substantial issue is raised by the motion
or affidavits.' . . . When the motion judge is also the
trial judge, as in this case, [he] may use [his] 'knowledge
and evaluation of the evidence at trial in determining
whether to decide the motion for a new trial without an
evidentiary hearing.' . . . We give substantial deference
to a judge's conclusion in this regard."

Commonwealth v. Morgan, 453 Mass. 54, 64 (2009). As the

discussion above reveals, we see no abuse of discretion in, and

therefore no reason to disturb, the trial judge's conclusion

that the motion and affidavits raised no substantial issue

requiring an evidentiary hearing.

In a case in which portions of a trial transcript are not

available, the motion judge is responsible for "determin[ing]

whether the reconstructed record is adequate to present any

errors alleged by the defendant." Commonwealth v. Harris, 376

Mass. 74, 79-80 (1978). The judge's rulings on and

30
comprehensive analysis of the defendant's posttrial motions

reveal that he determined that the reconstructed record was

adequate. As "[t]here is 'enough in the record pertinent to the

point to enable us to decide [this appeal] without resort to

speculation,'" Matter of M.C., 481 Mass. 336, 345 (2019),

quoting Commonwealth v. Bottiglio, 357 Mass. 593, 597 (1970), we

discern no error.

7. Evidence was legally sufficient. The defendant

challenges the sufficiency of the evidence to prove an

"indecent" touching in the Lego incident. Maya testified that

the defendant "straddl[ed] [her] back leg and had his body

pressed up against [her] body," with his "chest and upper thigh"

touching "the top of [her] butt." Viewed in the light most

favorable to the Commonwealth, Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), this evidence was sufficient to support

the verdict. See Commonwealth v. De La Cruz, 15 Mass. App. Ct.

52, 59 (1982) (touching buttocks is indecent assault and

battery).

The defendant also challenges the sufficiency of the

evidence to prove that the sled incident happened when Maya was

under fourteen. As amended, at the time of trial, count two of

the complaint alleged indecent assault and battery on a child

under the age of fourteen on a date before Maya's fourteenth

birthday. The jury heard evidence of both the date of Maya's

31
birthday and the timing of the sled incident. Viewed in the

light most favorable to the Commonwealth, the evidence was

sufficient to support the verdict.

Judgments affirmed.

Order denying motion for a
new trial and request for
postconviction discovery
affirmed.

By the Court (Henry,
Hershfang & Smyth, JJ.14),

Clerk

Entered: October 9, 2024.

14 The panelists are listed in order of seniority.

32