Commonwealth v. Henry Cruz.

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-182

COMMONWEALTH

vs.

HENRY CRUZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was

convicted of assault and battery by means of a dangerous weapon

causing serious bodily injury, assault and battery causing

serious bodily injury, and assault on a family or household

member. On appeal, the defendant claims the judge committed

error in the admission of three unredacted G. L. c. 209A abuse

prevention orders and in the failure to instruct the jury on

specific unanimity and separate acts. The defendant also

challenges the sufficiency of the evidence and claims the

prosecutor improperly vouched for a witness during closing

argument. We affirm.
Background. On November 25, 2021, the defendant and the

victim, who were in a dating relationship, attended a family

Thanksgiving Day party.

Shortly before midnight, the couple left the party and, on

the way to their home in Lawrence, got into an argument. The

victim, who had been consuming alcohol, did not want to leave

and was frustrated with the defendant for wanting to leave the

party early. The victim remembered that while en route home,

seated in passenger seat of the vehicle, she argued with the

defendant about leaving the party and may have punched him while

he was driving. The victim's next memory was waking up in the

hospital, looking "like this monster," unable to see out of one

eye, with a broken nose, and according to the medical records,

multiple contusions to her facial area, a lacerated lip

requiring stitches, bruising, and a hematoma in the front scalp.

Around midnight, Lawrence police officers responded to a

911 call to the couple's home. The defendant, who was

shirtless, shoeless, and had blood on his neck, initially

refused to allow the police officers into the home. When the

police did finally enter, a child led the police to the bedroom,

where the victim lay unconscious in bed with serious injuries to

her head, blood everywhere, and her eye swollen shut. The

police officers noted a scarf around the victim's neck. The

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victim was transported to the hospital in an ambulance and after

some investigation, the defendant was taken into custody. The

defendant was later indicted for assault and battery by means of

a dangerous weapon resulting in serious bodily injury in

violation of G. L. c. 265, § 15A (c) (i) (count one); assault

and battery resulting in serious bodily injury in violation of

G. L. c. 265, § 13A (b) (count two); assault and battery on a

family or household member in violation of G. L. c. 265,

§ 13M (a) (count three); attempted murder in violation of G. L.

c. 274, § 6 (count four); and strangulation in violation of

G. L. c. 265, § 15D (b) (count five).

The Commonwealth's theory at trial was that the defendant

committed three separate assaults of the victim: assault and

battery causing serious bodily injury (count two) by kicking and

punching the victim while she was near the vehicle; assault and

battery by means of a dangerous weapon causing serious bodily

injury (count one), attempted murder (count four), and

strangulation (count five), when he used a scarf or shirt that

he tied around her neck, leaving her unconscious; and assault

and battery on a family or household member (count three) when

he repeatedly struck the victim in the face while she was

slumped on the stairs outside of her home.

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The Commonwealth called six witnesses, including the victim

and two eyewitnesses to the assaults. One of the eyewitnesses,

Miriam Ayala, the victim's next-door neighbor, testified that

sometime after midnight on November 26, she went outside to take

out the trash when she heard the victim crying in pain and

yelling. Ayala went across the street to the victim's parked

car and found the victim lying on the ground outside the

passenger door of the vehicle. The victim was covered in blood,

and Ayala saw the defendant kicking her in the face. Ayala

screamed at the defendant to stop. The defendant stopped

kicking the victim and started punching her in the face and

body. Ayala described the defendant as being intoxicated, and

she screamed profanities at him to get him away from the victim,

but the defendant then grabbed what Ayala described as a scarf,

pulled it around the victim's neck, and strangled the victim.

Ayala screamed loudly using profanities, covered the victim's

body with her body, and the defendant finally stopped.

The second eyewitness, Lucero Cabrera, testified that she

was parking her car in front of the victim's home when she saw a

woman on the front steps with her head down. She saw a man

punching or hitting the woman very hard, mostly in the head

area. Cabrera saw that the man's shirt was covered in blood and

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as she called 911, she saw the man carry the victim inside the

home.

The defendant's theory at trial was that the victim, who

was intoxicated, had become aggressive and accidently injured

herself due to intoxication. The defendant testified that the

victim had consumed alcohol at the Thanksgiving Day party and

that he wanted to leave the party and return home. The

defendant contended that as he was driving the couple home, the

victim, who was angry at having to leave the party early,

grabbed a bottle from the backseat of the car and repeatedly hit

him in the head. The defendant arrived home and left the victim

in the car while he went inside to clean the blood off himself.

He returned to the car about forty minutes later to check on the

welfare of the victim. He found the victim face down on the

sidewalk with her legs still inside of the passenger side of the

vehicle. The defendant testified that he and his neighbor,

Ayala, helped the victim get across the street and assisted her

inside the home and into bed. He testified that he never saw

her face and was unaware of the severity of her injuries.

The jury acquitted the defendant of the charges of

attempted murder (count four) and strangulation (count five) and

found him guilty of the three assault and battery offenses.

This appeal followed.

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Discussion. 1. Admission of the unredacted abuse

prevention orders. Prior to trial, the defendant filed a motion

in limine to exclude prior bad act evidence and, in turn, the

Commonwealth moved to introduce prior bad acts of the defendant

including G. L. c. 209A abuse prevention orders issued on

December 5, 2017, November 3, 2020, November 29, 2021.1 The

judge denied the defendant's motion and allowed the

Commonwealth's motion. The three unredacted 209A orders were

admitted at trial without objection. On appeal, the defendant

claims that he is entitled to a new trial because the orders

were inadmissible propensity evidence that lacked probative

value. To be clear, the defendant does not challenge the

admissibility of the victim's testimony regarding the prior

violence she suffered by the defendant, but rather claims that

the abuse prevention orders should not have been admitted in

evidence.

At trial, the defendant did not object to the admission of

the unredacted orders. Nonetheless, on appeal the defendant

claims that the issue was preserved by his motion in limine.

That is not the case. In Commonwealth v. Grady, 474 Mass. 715,

719 (2016), the Supreme Judicial Court held that a defendant

1 We note that the November 29, 2021, restraining order was
not a "prior" bad act as it was issued four days after the
alleged crimes occurred.

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need not "object to the admission of evidence at trial where he

or she has already sought to preclude the very same evidence at

the motion in limine stage, and the motion was heard and

denied." In order to preserve the issue for appeal, the motion

in limine must be on the same ground as is raised on appeal.

See Commonwealth v. Santana, 477 Mass. 610, 620 n.7 (2017).

Here, while the defendant did file a motion in limine, it was

not based on the same grounds raised on appeal.2

The defendant contends, for the first time on appeal, that

the abuse prevention orders, especially the one dated November

29, 2021, were not relevant, were inflammatory and prejudicial,

and improperly bolstered the victim's testimony, and it was

error for them to be admitted. See Commonwealth v. Foreman, 52

Mass. App. Ct. 510, 513-514 (2001). "Because the defendant did

not object at trial to the [evidence] . . ., 'we review his

claims to determine whether there was error, and, if so, whether

2 At the hearing on the motion in limine, the defendant's
challenge to the 2016 and 2017 abuse prevention orders was that
they were not contemporaneous in time, were uncorroborated, and
were being used to bolster the victim's testimony because she
had no memory of the events that occurred on the day of the
crimes. In fact, at the hearing, counsel for the defendant
conceded that "the restraining order in 2020 is more time
contemporaneous. And, I would suggest that that may be
something that is allowable to permit." Counsel then urged the
court to exclude all of the prior bad act evidence because the
defendant and the victim had been in a relationship for twenty-
one years and that "it's propensity evidence, Your Honor, versus
probative value."

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the error created a substantial risk of a miscarriage of

justice.'" Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804

(2024), quoting Commonwealth v. Diaz, 100 Mass. App. Ct. 588,

596 (2022). "The substantial risk standard requires us to

determine 'if we have a serious doubt whether the result . . .

might have been different had the error not been made.'"

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.

72 (2005), quoting Commonwealth v. LeFave, 430 Mass. 169, 174

(1999).

The Commonwealth counters that the orders were admissible

because they demonstrated the defendant's intent, the nature of

the defendant's and victim's relationship, and the absence of

accident. "Evidence of a defendant's prior bad acts is not

admissible to demonstrate the defendant's bad character or

propensity to commit the crime charged." Commonwealth v. West,

487 Mass. 794, 805 (2021). However, such evidence "may be

admissible to prove opportunity, intent, preparation, plan,

knowledge, pattern of operation, or common scheme or course of

conduct, as long as the probative value of the evidence is not

outweighed by the risk of unfair prejudice" (citation omitted).

Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 408 (2022).

Admitting 209A orders may be particularly prejudicial because

the "judicial imprimatur on the 209A order lends it significant

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weight. This is not just a filing in court but a determination

by the court." Foreman, 52 Mass. App. Ct. at 515. See

Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 110 (2014)

(acknowledging concern that restraining order containing judge's

findings can lend itself to jury giving significant weight when

assessing victim's credibility).

We need not engage in a detailed analysis regarding the

admissibility of the 209A orders. Assuming, without deciding,

that the admission of the unredacted orders was in error, the

error, if any, did not create a substantial risk of a

miscarriage of justice. References to the orders were fleeting

and not repeated either during cross-examination or during

closing argument by the prosecutor. Additionally, the

prosecutor did not seek to include the affidavits filed in

support of the restraining orders. Cf. Foreman, 52 Mass. App.

at 517–518 (error to admit the 209A complaint, affidavit, and

order). The defendant neither objected to the introduction of

the evidence nor requested that the restraining orders be

redacted. And the defendant does not challenge the admission of

the victim's testimony regarding the defendant's prior abusive

acts. Under these circumstances, it is difficult to discern

how, even if the admission of the 209A orders was improper and

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carried the added weight of judicial imprimatur, it may have

resulted in different verdicts.

Moreover, there was considerable evidence supporting the

Commonwealth's theory of the case, including the testimony of

the two eyewitnesses who saw the victim being kicked, strangled,

and beaten by the defendant; videotape surveillance footage that

corroborated some of the eyewitnesses' testimony; the fact that

the victim was transported to the hospital and suffered a

swollen and bruised face, a lacerated lip, contusions to her

head, and a broken nose consistent with the beatings; police

testimony as well as photographs of the victim's injuries; and

finally, the defendant's incongruous testimony that he did not

cause the victim's injuries but that they were caused by her own

intoxication -- despite the testimony of two eyewitnesses who

saw his attacks on her and his behavior in refusing to allow the

police to enter his home when they responded to the 911 call.

We discern no substantial risk of a miscarriage of justice.

2. Sufficiency of the evidence. Next, the defendant

claims that the evidence failed to establish the essential

element of "serious bodily injury" in his convictions of assault

and battery by means of a dangerous weapon causing serious

bodily injury (count one) and assault and battery causing

serious bodily injury (count two). "When reviewing the denial

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of a motion for a required finding of not guilty, 'we consider

the evidence introduced at trial in the light most favorable to

the Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'" Commonwealth v. Quinones, 95 Mass. App. Ct.

156, 162 (2019), quoting Commonwealth v. Faherty, 93 Mass. App.

Ct. 129, 133 (2018).

The Commonwealth can prove "serious bodily injury," as

defined in G. L. c. 265, § 15A (d), in one of three ways: that

the "defendant caused bodily injury that resulted either in (1)

a permanent disfigurement; (2) loss or impairment of a bodily

function, limb, or organ; or (3) a substantial risk of death."

Commonwealth v. Scott, 464 Mass. 355, 357 (2013). Loss or

impairment of a bodily function does not have to be permanent to

establish serious bodily injury. Commonwealth v. Marinho, 464

Mass. 115, 118 (2013). See id. (fractured nose, cheekbones, and

eye socket causing blurred vision and double vision requiring

reconstructive surgery sufficient to establish serious bodily

injury). See also Commonwealth v. Baro, 73 Mass. App. Ct. 218,

219-220 (2008) (punches and kicks to head resulting in broken

bones and loss of sight for one and one-half months sufficient

to prove serious bodily injury); Commonwealth v. Jean-Pierre, 65

Mass. App. Ct. 162, 162 (2005) (punches resulting in broken jaw

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and several weeks of tube feeding sufficient to establish

serious bodily injury).

Here, the jury heard testimony from Ayala, who recounted

the defendant's motions in taking what she described as a scarf

and tying it around the victim's neck and continually tightening

it. At trial, using a scarf that she was wearing, Ayala

demonstrated the defendant's actions for the jury. Moreover,

Ayala described the defendant kicking and punching the victim

while she was lying on the pavement near the vehicle. The

victim testified that before the assaults she did not suffer a

broken nose, but that she woke up in the hospital with a broken

nose, swollen face, and unable to open one of her eyes. The

jury were able to consider photographs of the victim's injuries

and medical records confirming that she had suffered "a

suspected nasal bone fracture." The jurors were also permitted

to draw reasonable inferences from this evidence based on their

own common sense and life experiences. Based on the evidence

presented, we conclude as to count one that there was sufficient

evidence for a rational jury to find that the defendant caused

impairment of a bodily function, the victim's ability to

breathe. Moreover, it was permissible for the jurors to

conclude that the defendant's actions in taking an article of

clothing and tightening it around the victim's neck caused a

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substantial risk of death. As to count two, the evidence when

viewed in the light most favorable to the Commonwealth was that

the actions of the defendant kicking and punching the victim in

the face resulting in bone fractures, a hematoma, bruising, and

a swollen eye, was sufficient to prove serious bodily injury.

3. Specific unanimity and separate acts instructions.

Next, the defendant claims that the trial judge's failure to

provide specific unanimity instructions and separate acts

instructions to the jury resulted in a substantial risk of a

miscarriage of justice. As to the failure to instruct on

specific unanimity, the defendant reasons that because the jury

found him not guilty of the strangulation charge (count four),

then it was unlikely that the jurors were convinced beyond a

reasonable doubt that he was guilty of assault and battery by

means of a dangerous weapon causing serious bodily injury (count

one) because it was based on the same evidence, namely tying the

scarf or shirt around the victim's neck. We disagree.

"The purpose of a specific unanimity instruction is to
ensure that where the jury are presented with evidence of
'separate, distinct, and essentially unrelated ways in
which the same crime can be committed,' the jurors do not
conclude that they may convict the defendant without
unanimous agreement on which distinct theory of the crime
applies."

Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 81 (2021),

quoting Commonwealth v. Arias, 78 Mass. App. Ct. 429, 432

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(2010). Because the defendant neither requested such an

instruction nor objected to the instructions as given, we review

their absence for a substantial risk of a miscarriage of

justice.

Here, the charges of strangulation and assault and battery

by means of a dangerous weapon causing serious bodily injury are

two separate offenses requiring different elements of proof.

Moreover, the prosecutor in her closing statement articulated

the acts underlying the charges of strangulation and assault and

battery by means of a dangerous weapon causing serious bodily

injury, and the judge specifically instructed the jury that the

dangerous weapon in count one was a scarf or shirt. Therefore,

"it does not appear likely that the jury verdict would have been

different even if the judge had given the specific instruction

now requested by the defendant." Commonwealth v. Comtois, 399

Mass. 668, 677 (1987). We see no error in the judge's failure,

sua sponte, to so instruct.

Moreover, even if we were to agree that a specific

unanimity instruction should have been given, there was no

substantial risk of a miscarriage of justice. "Such a risk will

not occur if the evidence is sufficient to meet the statutory

elements and withstand a directed verdict motion." Commonwealth

v. Erazo, 63 Mass. App. Ct. 624, 630 (2005). Because the

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evidence was sufficient to support the defendant's conviction of

assault and battery by means of a dangerous weapon causing

serious bodily injury, a substantial risk of a miscarriage of

justice did not result.

Nor did the judge's failure to instruct the jury on

separate acts create a substantial risk of miscarriage of

justice on counts one and two. Given the facts of this case,

and the fact that the prosecutor clearly defined each separate

act forming the basis of each count, there is no significant

possibility that the jury may have relied on the same act as

underlying both charges. A separate acts instruction was not

required. See Commonwealth v. Kelly, 470 Mass. 682, 699-700

(2015).

4. Closing argument. For the first time on appeal, the

defendant claims that the prosecutor improperly vouched for the

credibility of a witness and, by using rhetorical questions,

shifted the burden of proof to the defendant. We review to

determine whether any error created a substantial risk of a

miscarriage of justice.

The defendant focuses on the prosecutor's remarks in

closing argument, that one of the eyewitnesses had no reason to

lie, as impermissibly vouching for the witness. The prosecutor

made the following remarks to the jury:

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"I'd suggest Ms. Cabrera had no reason whatsoever to get
involved unless she saw exactly what she told you. She
doesn't know these people. Why would she call the police
on Thanksgiving night at midnight with her 8-year-old
daughter for no reason? Does that make sense? Or does it
make sense that she saw exactly what she told you?

"Ladies and gentlemen, when people lie, they lie for a
reason. You might lie to your boss and tell him that
you're sick because you got last minute tickets to Red Sox
opening day and you want to go. You might lie to your
husband that the shoes that you got were on sale because
you don't want that lecture about finances and
overspending. When people lie, they lie for a reason.
What possible reason or motive would Ms. Cabrera . . . have
to come in here and lie about what [she] saw? I'd suggest
absolutely none."

This was not vouching or burden shifting. Here, the prosecutor

did not "express[] a personal belief in the credibility of a

witness, or indicate[] that . . . she ha[d] knowledge

independent of the evidence before the jury." Commonwealth v.

Wilson, 427 Mass. 336, 352 (1998). Instead, she properly

"ask[ed] [the] jury to rely on their common sense and life

experience in assessing evidence and credibility." Commonwealth

v. Salazar, 481 Mass. 105, 117 (2018). We discern neither error

nor a substantial risk of a miscarriage of justice. In context,

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the prosecutor was properly responding to the defendant's claims

that the eyewitness was unreliable. See Commonwealth v.

Fernandes, 478 Mass. 725, 743 (2018).

Judgments affirmed.

By the Court (Massing,
Walsh & Brennan, JJ.3),

Clerk

Entered: February 19, 2025.

3 The panelists are listed in order of seniority.

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