Commonwealth v. Rylan R. Lemaine.

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-938

COMMONWEALTH

vs.

RYLAN R. LEMAINE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of assault

and battery on a pregnant person, G. L. c. 265, § 13A (b) (ii).1

On appeal, the defendant claims error in an amendment to the

date of the complaint and the admission of prior bad act

evidence. We affirm.

Background. The victim and the defendant began dating in

2015 or 2016. She had her first child with him in 2017. In

late 2018, the victim again became pregnant by the defendant.

In March 2019, the victim, the defendant, their daughter, and

1The jury acquitted the defendant of strangulation or
suffocation, G. L. c. 265, § 15D (b).
the defendant's girlfriend lived together at the Days Inn in

Methuen.

On a date in March 2019, "play fighting" between the victim

and the defendant turned into an argument. When the victim

tried to walk away, the defendant "came behind [her] and put

[her] in a headlock." She started to choke and "dug [her] nails

as hard as [she] could into his arm until he let go." The

defendant grabbed the victim's arm, shoved her into the bed, and

pushed her shoulders down from the bed onto the floor, causing

her head to hit a nightstand. He then grabbed her hair and

pushed her to the floor, before flipping her over and sitting on

her lap. At some point, the victim got back onto the bed, while

the defendant continued to yell at her and hold her hands down.

The victim slid off the bed and the defendant tried to stop her

as she got to her knees. The victim headbutted the defendant

and he pretended to pass out, but then the defendant "sprung up

. . . and ran and slammed the hotel door."

The girlfriend witnessed the beginning of the assault but

locked herself and the child in the bathroom once it escalated.

She remained in the bathroom until she "heard the yelling quiet

down."

Discussion. 1. Amendment to the complaint. Just prior to

empaneling the jury, the judge allowed, at the Commonwealth's

request and without objection, an amendment to the date of the

2
offense on the complaints.2 The complaints listed the date as

September 4, 2019, which was the date on which the victim made a

report to police. The parties, however, agreed that the

incident underlying the complaints occurred on a single, unknown

date in March 2019. The complaints thus were amended to a

"diverse date in March 2019" and subsequently read to the jury

as "on diverse dates in March of 2019 [emphasis added]." We

disagree with the defendant's assertion that, as so conveyed,

the amended complaints caused the jury to believe the defendant

was charged with "some span of assaults or assaultive behavior

throughout March 2019."

The jury heard the phrase "on diverse dates" just after

they were sworn, but it was immediately made clear in both the

prosecutor's and defense counsel's opening statements that the

allegations involved one incident at the Days Inn in Methuen.

Witness testimony unambiguously referred to "one night in

particular," "this incident," "an exact date," "a specific

date," "an altercation," "this altercation," "that night in

March of 2019," "that day," and "an incident." During closing

arguments, both attorneys discussed events that occurred on a

2 The defendant was charged based on a single incident in
two separate complaints, which were joined for trial. It does
not appear that the amended date of offense was recorded on the
complaints.

3
single night in March 2019. Finally, the jury did not raise the

date in its question regarding the elements of the offenses.

Although the phrasing of the amendment may have been

erroneous,3 the defendant has not established a "serious doubt

whether the result of the trial might have been different had

the error not been made." Commonwealth v. Kelly, 470 Mass. 682,

697 (2015) (quotations omitted). We thus conclude there was no

substantial risk of a miscarriage of justice created by the

amended complaints. See id.

2. Admission of prior bad act evidence. Before trial, the

Commonwealth moved to introduce evidence of three prior

instances on which the defendant physically assaulted the

victim, along with photographs of injuries the victim suffered

on each occasion. The Commonwealth argued that the evidence was

relevant to show the hostile nature of the relationship between

the defendant and the victim; to counter any claim of accident,

mistake, or self-defense; and to show a continuing pattern of

behavior by the defendant. The defendant objected on the basis

that the evidence "could confuse the jury" and that the risk of

unfair prejudice therefore outweighed the probative value of the

evidence. The judge allowed the Commonwealth to "bring up that

3 Properly amended, the complaint should have read, "on a
date in March 2019."

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there was a hostile relationship," but ruled that specific acts

or details of the defendant's prior assaults, including

"[g]raphic pictures," were unduly prejudicial and thus excluded.

During trial, the victim testified that, on the night of

the assault, she and the defendant argued and she turned to walk

away from him. The victim went on to explain,

"I was done, and I knew it was either going to -- when I
turned around, I knew it was either going to continue and I
should just hold my breath, because that was usually when I
would need to take whatever last breath I needed to, to
hold off for a bit. Because he would come behind me. It
was not the first time that he would come behind me and try
to put me in a headlock. So if I wanted to end a[n]
argument or try to see if we were in a good enough place
that he would just let it go, and I tried to turn away, I
would usually take one big breath and cross my fingers that
he was not going to walk behind me."

The defendant's girlfriend testified that she was in and out of

the room while the victim and defendant fought. She stated that

she had "broken things up" between them on prior occasions, and

that night she "could tell they had just fought" because the

victim's "hair was messed up," and she had "seen [the victim]

like that before." The defendant asserts that both the victim's

and the girlfriend's testimony violated the judge's order

because they communicated to the jury that the defendant "had

specifically assaulted her in the same way on prior occasions."

The defendant did not object to either witness's testimony, move

to strike it, or request a limiting instruction from the judge.

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The decision whether to admit prior bad acts is within the

trial judge's discretion. Commonwealth v. Gonzalez, 469 Mass.

410, 421 (2014). We review any unpreserved error in the

admission of evidence to determine whether it created a

substantial risk of a miscarriage of justice. Commonwealth v.

Grady, 474 Mass. 715, 721-722 (2016). The defendant argues that

our review is for prejudicial error because he preserved his

appellate rights by objecting to the Commonwealth's motion in

limine to admit prior bad acts. We disagree. "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." Id. at 719. Moreover,

preservation of appellate rights requires that the motion in

limine was heard and denied. Id. Here, the judge agreed with

the defendant's request to exclude evidence of specific prior

incidents of abuse; thus, his objection was not preserved.

Regardless of which standard we apply, however, we discern

no reversible error. The victim testified at length and in

detail about her relationship with the defendant and the assault

at the Days Inn "the last time [she] saw [him]." Much of her

testimony was corroborated by the girlfriend. The victim's

insinuation that the defendant had assaulted her previously was

brief and passing. This case rose and fell on the victim's

credibility, and her intimation that something similar had

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happened before does not change that calculus. Moreover, the

defendant's argument that the jury may have been swayed by

evidence that "appear[ed] to be nearly identical to the charged

offense" is belied by the verdict acquitting the defendant of

strangulation. See Commonwealth v. Gardner, 102 Mass. App. Ct.

299, 311 (2023).

We disagree with the defendant that the girlfriend's

testimony that she had previously broken up fights between the

victim and defendant exceeded the bounds of describing the

parties' hostile relationship, as it was neither specific nor

detailed.4 Even if it did violate the judge's order, the

testimony added little of substance to the Commonwealth's case.

Ultimately, we conclude that there was no substantial risk of a

miscarriage of justice from the admission of the bad act

evidence. See Commonwealth v. Proia, 92 Mass. App. Ct. 824,

830 & n.9 (2018) ("This is not an instance where the prior bad

act evidence overwhelmed the case"). Furthermore, because the

challenged testimony "did not influence the jury, or had but

very slight effect," Commonwealth v. Alvarez, 480 Mass. 299, 305

4 The defendant does not contest the judge's ruling that
evidence of the hostile relationship between the victim and
defendant was admissible.

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(2018) (quotation omitted), the defendant's claim is unavailing

even under the more favorable prejudicial error standard.

Judgment affirmed.

By the Court (Shin, Ditkoff &
Brennan, JJ.5),

Clerk

Entered: October 25, 2024.

5 The panelists are listed in order of seniority.

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