Commonwealth v. Mario Estefanos.

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-899

COMMONWEALTH

vs.

MARIO ESTEFANOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in Superior Court, the jury found the

defendant guilty of three counts of rape, and two counts of

assault and battery on a household member. The jury found the

defendant not guilty of one count of assault and battery with a

dangerous weapon and one count of assault with a dangerous

weapon. The defendant appeals, arguing that the trial judge

abused her discretion by allowing the Commonwealth to present

prior bad act evidence concerning the defendant's treatment of

the victim, his wife. We affirm.

Discussion. "It is well settled that the prosecution may

not introduce evidence of a defendant's prior or subsequent bad

acts for the purpose of demonstrating bad character or
propensity to commit the crime charged." Commonwealth v.

Barrett, 418 Mass. 788, 793 (1994). But in domestic violence

cases, evidence of previous violence in the relationship may be

relevant to show the violent or hostile nature of the

defendant's relationship with the victim, Commonwealth v.

Almeida, 479 Mass. 562, 567-569 (2018), or to show intent,

motive, or absence of mistake or accident. Commonwealth v.

Oberle, 476 Mass. 539, 550-552 (2017). Mass. G. Evid.

§ 404(b)(2) (2025). "Even if the evidence is relevant to one of

these other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249

(2014).

The determination whether to admit such evidence is

"committed to the sound discretion of the trial judge and will

not be disturbed by a reviewing court absent 'palpable error.'"

Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting

Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). The question

is not whether we would have made the same decision, but instead

whether the judge made a "clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

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(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

The judge allowed the Commonwealth's motion in limine to

admit evidence (1) that when living in Egypt, the defendant

raped and struck the victim in the face, causing an eye injury;

(2) that the defendant "repeatedly . . . physically and verbally

abused [the victim] throughout the course of their

relationship";1 and (3) that the defendant made threats to the

victim "about taking their child from her and stealing her

travel documents." But the judge specifically stated that the

prior bad acts evidence was admissible for the limited purpose

of "establish[ing] [the] nature of [the] relationship [and the]

defendant's motive and intent," each of which is a permissible

purpose. See Almeida, 479 Mass. at 567-569; Oberle, 476 Mass.

at 550-552. The question remains whether the probative value of

the defendant's previous violence and threats against the victim

is outweighed by the risk of unfair prejudice to the defendant.

See Crayton, 470 Mass. at 249.

1 The motion also sought to admit evidence that the
defendant repeatedly raped the victim, but although the judge
allowed the motion, no evidence of uncharged rapes was
introduced, other than the rape in Egypt specifically referred
to in the motion.

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In Commonwealth v. Peno, the court identified a non-

exhaustive list of factors that may be considered "[w]hen

assessing whether the risk of unfair prejudice outweighs the

probative value of the challenged evidence," including:

"(1) whether the trial judge carefully weighed the
probative value and prejudicial effect of the evidence
introduced at trial . . . ; (2) whether the judge mitigated
the prejudicial effect through proper limiting instructions
. . . ; (3) whether the challenged evidence was cumulative
of other admissible evidence, thereby reducing the risk of
any additional prejudicial effect . . . ; and (4) whether
the challenged evidence was so similar to the charged
offense as to increase the risk of propensity reasoning by
the jury."

485 Mass. 378, 386 (2020). We address these factors in turn.

1. Probative and prejudicial value. The judge properly

weighed the probative value and prejudicial effect of the

evidence. The judge heard argument on the Commonwealth's motion

in limine and then granted the motion, ruling that the prior bad

acts evidence was not too remote in time relative to the charged

conduct and was relevant to establish the nature of the

relationship and the defendant's motive and intent. Although

the defendant has failed to provide us with the transcript from

the motion hearing, we are unwilling to assume that the judge

did not engage in the requisite balancing during that hearing.

In any event, such consideration is implicit not only in the

fact that she heard argument before allowing the motion, see

Commonwealth v. Samia, 492 Mass. 135, 148 (2023), but also that

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she pressed the Commonwealth on the morning of trial to identify

the exact scope of the prior bad acts evidence and how it would

be admitted. "This is not a case where the judge failed to

exercise any discretion by making no effort at all to scrutinize

the contested evidence" (quotation and citation omitted).

Commonwealth v. West, 487 Mass. 794, 807 (2021).

2. Limiting instructions. The judge took care to mitigate

potential prejudice to the defendant by providing clear,

forceful limiting instructions, which we presume the jury

followed. Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

The judge instructed the jury to consider the prior bad acts

testimony only as evidence of "the nature of the relationship

between the parties, the defendant's motive, state of mind and

intent" and not as "proof that [the defendant] has a criminal

personality or of bad character." The judge continued her

instruction as follows:

"[y]ou may not consider this evidence for any other
purpose. Specifically, you may not use it to conclude that
if the defendant committed those acts [then] he must have
committed the offenses for which he's been charged. It
would be extremely unfair to consider this evidence for
those purposes. For one thing, he's not charged with
anything related to those acts and those acts have no
relevance whatever to the charges in this case" (emphasis
added).

This limiting instruction was more favorable to the

defendant than usual, in two ways. First, the judge added the

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"extremely unfair" admonition, which is not included in the

model instruction, and which emphasizes the potential harm to

the defendant if the jury were to improperly consider the

evidence. Superior Court Model Jury Instructions, Criminal

Practice 7.6.2 (2018). Second, the judge told the jury that the

prior bad acts evidence was not related to and had "no relevance

whatever to the charges in this case." Although this language

admittedly had the potential to confuse the jury, as the bad

acts evidence was of course relevant on specific, limited

issues, it also further discouraged improper use (indeed, any

use) of that evidence. See Commonwealth v. Linenkemper, 104

Mass. App. Ct. 467, 472 (2024) (identical instruction "if

anything, inured to the defendant's benefit"). The judge gave

similar instructions each time bad acts evidence was introduced

and again during the final jury instructions.

Thus, the judge "monitored the development of the evidence

closely," Commonwealth v. Copney, 468 Mass. 405, 414 (2014), and

followed the favored practice of giving "contemporaneous

limiting instructions," Commonwealth v. Facella, 478 Mass. 393,

402 (2017), as well as giving the instruction in her final

charge. See Commonwealth v. Walker, 442 Mass. 185, 202 (2004)

(risk of prejudice from prior bad act testimony "sufficiently

ameliorated by the judge's limiting instructions, given

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immediately after the testimony and repeated during the final

instructions").

3. Whether challenged evidence was cumulative. We

acknowledge that the prior bad acts testimony was not

"cumulative of other properly admitted evidence," but rather

was, aside from the charged conduct, the principal evidence on

the limited issues for which it was admitted. Cf. West, 487

Mass. at 808 (where challenged evidence was cumulative of other

properly admitted evidence, risk of added prejudice was

reduced). Despite this factor, we conclude that the prior bad

act testimony did not overwhelm the case. Contrast Commonwealth

v. Dwyer, 448 Mass. 122, 129 (2006) (prior bad act evidence

overwhelmed evidence of two rape charges where complainant

testified "in detail about each of seven uncharged incidents").

The victim's testimony about the rape and eye injury was fairly

brief, occupying about three transcript pages. Similarly, her

and another witness's testimony about an assault in a car

totaled about four transcript pages. However, there was

substantially more evidence concerning the charged offenses.

The victim herself recounted, in significant detail and over the

course of more than ten transcript pages, the three separate

incidents that resulted in the rape and assault charges. In

addition, two first complaint witnesses testified to the

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victim's statements after two of these incidents, and two police

officers described their interactions with the victim after the

2019 incident that resulted in rape and other charges.

While the prior bad act testimony carried the potential for

unfair prejudice to the defendant, the judge could reasonably

conclude that its probative value was greater, as it provided

the jury with the context of the "ongoing, continuous abusive

relationship [which made] the victim's actions and reactions

make logical sense." Commonwealth v. Childs, 94 Mass. App. Ct.

67, 72 (2018). At trial, the defendant attacked the victim's

credibility by pointing out that she never reported the

defendant's violence to the police or medical professionals. To

explain why the victim felt she could not report the crimes, the

Commonwealth focused on the continuous and all-encompassing

nature of the violence in the couple's relationship. The prior

bad act testimony provided the jury with the important context

of how thoroughly the victim was under the defendant's violent

control; he had been abusing her as far back as in Egypt just

two weeks after their wedding, and he continued to do so

regularly throughout their marriage, even in front of other

witnesses. "Thus, the relationship between [the] defendant and

[the victim], a proper use of uncharged conduct, was important

evidence here" (quotations and citations omitted). Id.

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4. Similarity of charged and uncharged conduct. The prior

bad acts were similar to the charged offenses; both involved

rape and other assaultive acts. While generally such similarity

may lead to a risk of impermissible propensity reasoning by the

jury, this is less of a concern when, as here, "a defendant is

charged with any form of illicit sexual intercourse."

Commonwealth v. McDonagh, 480 Mass. 131, 143 (2018), quoting

Commonwealth v. King, 387 Mass. 464, 469-470 (1982). In such

cases, "evidence of the commission of similar crimes by the same

parties though committed in another place, if not too remote in

time, is competent to prove an inclination to commit the [acts]

charged." McDonagh, supra.

Here, all events admitted as prior bad act evidence

occurred since the couple married in 2013; the charged conduct

occurred between 2014 and 2019. "There is no bright-line test

for determining temporal remoteness of evidence of prior

misconduct," Commonwealth v. Helfant, 398 Mass. 214, 228 n.13

(1986), but "[w]here the prior misconduct is part of a

continuing course of related events . . . the allowable time

period is greater" (quotation and citation omitted).

Commonwealth v. Moran, 101 Mass. App. Ct. 745, 749 (2022).

Although one of the prior bad acts occurred in a different

place, Egypt, the judge reasonably concluded that that evidence

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was not too remote in time and was admissible. See id. (prior

bad acts occurring in different county, nineteen to twenty-one

years earlier, were admissible).

Relatedly, we are unpersuaded by the defendant's argument

that evidence of the charged offenses themselves already

provided ample bad acts evidence, so that the challenged

evidence of uncharged conduct was, the defendant asserts,

"unnecessary" to prove the Commonwealth's case. "It is not a

foundational requirement for the admissibility of prior bad act

evidence that the Commonwealth show either that the evidence is

necessary or that there is no alternative way to prove its

case." Oberle, 476 Mass. at 551 n.7, citing Commonwealth v.

Copney, 468 Mass. 405, 413 (2014). See Mass. G. Evid. § 404(b)

note (2025).

Finally, the jury were not blind to the weaknesses in the

Commonwealth's case and could weigh the evidence rationally, as

shown by their finding the defendant not guilty of two of the

charges. See Linenkemper, 104 Mass. App. Ct. at 472. In other

words, the jury were not so swept away by the bad act evidence

as to conclude that the defendant had a criminal personality and

so must have committed all of the charged offenses. We are

unpersuaded that the challenged prior bad act evidence "so

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inflame[d] the jury's passion or sympathy that they would be

unable to remain impartial." Peno, 485 Mass. at 399.

For all of these reasons, the judge did not abuse her

discretion in admitting the prior bad acts testimony.

Judgments affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.2),

Clerk

Entered: June 3, 2025.

2 The panelists are listed in order of seniority.

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