Commonwealth v. Wilfredo Lopez.

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

21-P-879

COMMONWEALTH

vs.

WILFREDO LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of two counts

of indecent assault and battery on a child under fourteen in

violation of G. L. c. 265, § 13B.1 The defendant appeals,

arguing that several erroneous rulings and statements in the

prosecutor's closing argument warrant reversal. Discerning no

error, we affirm.

Background. Based on the Commonwealth's evidence, the jury

could have found the following facts. In December 2017, the

victim was thirteen years old and living with her mother,

1The defendant was acquitted of a third count of indecent
assault and battery on a child under fourteen; one count of
assault and battery in violation of G. L. c. 265, § 13A (a); and
one count of witness intimidation in violation of G. L. c. 268,
§ 13B.
brother, younger sister, and the defendant, who was her

stepfather. One night, the defendant repeatedly asked the

victim, both verbally and via text message, to enter his bedroom

and lie down with him and her younger sister to watch a movie.

The victim's mother was not home at the time. The victim

initially did not want to watch the movie, but after the

defendant offered her money, the victim acquiesced.

The defendant was laying in the middle of the bed with the

victim's sister on one side of him and the victim on the other.

As the victim was laying on her side with her back to the

defendant, she felt the defendant rub his hand on her shorts

over her buttocks, reach inside her shirt and bra, and touch her

breasts. When the victim tried to move away from the defendant,

he prevented her from getting off the bed by pulling her back.

The victim managed to get off the bed and leave the bedroom.

Later, the defendant told the victim not to tell anyone and

kissed her on the head and apologized.

In February 2018, the victim informed her mother that the

defendant sexually assaulted her. The victim testified that she

overheard the defendant respond to her mother confronting him

with the accusation by stating, "the devil made [me] do it."2

2 The testimony of the victim's mother and a Department of
Children and Families (DCF) social worker as to the mother's
confrontation of the defendant differ from the victim's

2
Discussion. 1. Evidentiary rulings. We review the trial

judge's rulings for an abuse of discretion, as "[w]e do not

disturb a judge's decision to admit [or exclude] evidence absent

an abuse of discretion or other legal error." Commonwealth v.

Souza, 492 Mass. 615, 626 (2023), quoting Zucco v. Kane, 439

Mass. 503, 507 (2003).

a. Victim's other sexual assault allegations. The

defendant argues that the victim's allegations of sexual assault

against two of her peers were admissible as evidence of other

false accusations, and thus the judge abused his discretion by

not allowing the defendant to introduce this evidence.3 The

testimony. The mother testified that after she confronted the
defendant about the victim's letter, the defendant told the
mother that, "if he touched her for any reason, it was by
mistake 'cause they're always playing around and goofing
around." The DCF social worker testified to a conversation with
the mother wherein the mother said that the defendant, in
response to the victim's allegations, had "admitted to putting
his hand on [the victim's] stomach and on her breast," thinking
at first the victim was his wife, "and then realized it was not
her." The judge instructed the jury that the DCF case worker's
testimony was admitted solely for impeachment purposes.

3 After reporting the defendant's conduct to her mother in
February 2018, the victim separately accused two male peers of
sexually assaulting her while she participated in DCF's
stabilization assessment and rapid reunification (STARR)
service. In March of 2018, the victim reported to staff at
STARR that she had been sexually assaulted by a fellow resident
who asked her to perform oral sex. According to a DCF worker,
the victim initially denied that the assault occurred, but later
stated the assault had taken place. In October of 2019, the
victim left the STARR program premises with two other residents,
and after returning to the program, she reported that she had

3
defense alternatively argues that the allegations were

admissible to show a pattern of conduct, specifically, that the

victim would contrive allegations of sexual assault to deflect

attention from her misbehavior that occurred when she

participated in a DCF program. We are not persuaded.

With limited exceptions, evidence of a victim's sexual

conduct is not admissible. See Commonwealth v. Harris, 443

Mass. 714, 721 (2005), quoting G. L. c. 233, § 21B ("The statute

precludes admission of evidence of a victim's 'reputation' with

respect to 'sexual conduct,' as well as 'evidence of specific

instances of a victim's sexual conduct'"). One such exception

allows admission of evidence of other accusations, when such

accusations are "of the specific crime which is the subject of

the trial" and might "seriously damage[] the complainant's

credibility." Commonwealth v. Bohannon, 376 Mass. 90, 95

(1978), S.C., 385 Mass. 733 (1982). Before this exception may

apply, the defendant must make an "offer of proof," not only

that other allegations had been made but also that those

allegations were false. Id.

Here, the defendant failed to make an adequate offer of

proof that either of the victim's other two allegations were

been sexually assaulted by the male resident who had accompanied
her.

4
false, which is required under Bohannon, 376 Mass. at 95. The

defendant asserts that the falsity of the victim's other two

accusations was sufficiently established by (1) inconsistent

reports of the victim, who initially denied that the alleged

perpetrator had sexually assaulted her in March of 2018, (2) a

lack of charges filed in relation to the other allegations, and

(3) that the victim made accusations against multiple people.

That the victim provided inconsistent accounts of the March 2018

incident does not prove that the victim was lying. See

Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 477, cert. denied

sub nom., Pirrotta v. Massachusetts, 479 Mass. 838 (1986),

quoting Commonwealth v. McGahee, 393 Mass. 743, 750 (1985)

("Inconsistencies in the victim's testimony 'do not render the

testimony legally insufficient'"). Further, "that [a] victim

failed to pursue a claim is not evidence that the claim was

falsely made." Commonwealth v. Hrycenko, 417 Mass. 309, 319

(1994).

Finally, that a victim makes separate rape allegations,

without concrete evidence to support a claim that those

allegations were false, does not independently suggest they were

false. See Commonwealth v. Wise, 39 Mass. App. Ct. 922, 922-923

(1995) ("To open the gate to cross-examination, the evidence of

falsity of an accusation must be solid, as when the accusing

5
witness has recanted the other allegation"). Therefore, there

was not sufficient evidence demonstrating the victim's previous

allegations were false that would warrant the application of

Bohannon.

As to the defendant's alternative argument, the facts here

differ significantly from the victim's other allegations to

allow for admission of the evidence as proof of "a common

scheme, pattern of operation, absence of accident or mistake,

identity, intent, or motive." Commonwealth v. Helfant, 398

Mass. 214, 224 (1986). The victim's other allegations were

directed at peers, while this allegation was directed at an

adult family member. Additionally, there is no indication that

the victim was concerned about getting in trouble when she

reported the other assaults. The judge did not abuse his

discretion when he concluded that the other allegations were not

similar enough to the current case to be admissible as evidence

of a pattern or motive to lie.4 Cf. Commonwealth v. King, 387

Mass. 464, 472 (1982) (admitting prior bad acts as proof of

"common pattern" where "the uncharged conduct is so closely

4 The defendant also argues that the judge did not fully
consider the issue regarding the admissibility of other
accusations. Because we do not agree that the judge erroneously
weighed the facts relevant to the issue, we discern no error.
See Souza, 492 Mass. at 626.

6
related in time, place, age, family relationship of the victims,

and form" of behavior in question).

b. Victim's behavior at school. The defendant asserts

that the judge erroneously limited information regarding the

victim's alleged misconduct at school to a single day, and that

the defense was entitled to cross-examine the victim regarding

her behavior over a longer period of time for the purpose of

showing bias. The defendant argues that, in preventing this

line of questioning due to lack of relevance, the judge

prevented him from putting on a full defense.

Because the trial judge limited reference only to "specific

incidents"5 while still allowing testimony that the victim was

"generally having a difficult time," we conclude that the issue

of the victim's behavior at school was sufficiently aired, and

there was no abuse of discretion. See Commonwealth v. Avalos,

454 Mass. 1, 7-8 (2009). This is further supported by the

defense's acquiescence and agreement to keep evidence of

supposedly bad behavior "to general terms" after the judge

explained he was not allowing the mention of "any specific

5 The defendant sought to introduce evidence that the victim
got in trouble for "vaping" and "swearing at her teachers" at
school, arguing that the victim was "in the hallway raising some
issues, swearing at the teachers. She[] [was] taken into a
room. She[] [was] told that this is not proper conduct. And,
then, she [made] this complaint" against the defendant.

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acts," as well as the fact that both the victim and her mother

testified that the victim was "always" getting in trouble at

school, including around the time of the December 2017 assaults.

c. Victim's letter to defendant. The defendant argues

that the specific content of a letter that the victim wrote to

the defendant was admissible to show the victim's "present

friendliness" toward the defendant after the alleged assaults.

See Mass. G. Evid. § 803(3)(B)(i) (2021).6 The letter contained

statements by the victim praising and thanking the defendant,

including, "Thank you for picking my mom as your wife," "since

day one you have always treated me with respect," and "even tho

[sic] I don't say it I do love you." The victim asserted that

she wrote this letter prior to the December 2017 incident. The

victim's mother said the defendant showed her this letter around

his birthday, which was after the December 2017 incident; thus,

the defendant argues this letter is probative of the victim's

feelings toward the defendant at the time of the incident.7

6 Statements that might otherwise be excluded at trial as
hearsay were admissible at the time of the defendant's trial if
they were indicative of a person's "present friendliness,
hostility, intent, knowledge, fear, or other mental condition."
Mass. G. Evid. § 803(3)(B)(i). The current version is not
materially different.

7 In response to this discrepancy, the judge allowed the
defendant to present the letter to the victim at trial, but
stated that "if [the victim] denies that she wrote that after
the alleged incident, but wrote it before, then . . . it's not

8
Although the judge sustained the Commonwealth's objection

to the victim reading the letter, he did allow the defendant to

ask the victim to confirm that the letter was to the defendant

and contained information "that's very positive about [the

defendant]." Additionally, the victim testified that she had

not written the letter within the timeframe of the crimes of

which the defendant was convicted, which minimizes its relevance

as to the grounds for which the defendant sought to introduce

it. Finally, defense counsel stated at sidebar that he did not

"plan on" asking the victim about the contents of the letter.

Therefore, we cannot conclude that the trial judge abused his

discretion in preventing the specific contents of the letter

from being read during trial. See Commonwealth v. Garcia, 470

Mass. 24, 35-36 (2014), quoting Avalos, 454 Mass. at 7 (no abuse

of discretion in judge's decision to deny admission of evidence

where he did not "bar all inquiry into the subject" at issue).

2. Testimony of victim's mother. The defendant next

argues that the Commonwealth called the victim's mother for an

impermissible purpose, which was impeaching the mother.

relevant." Of course, the victim's mother's testimony about
when she saw the letter does not contradict when the victim said
she wrote it (before the incident in question). Nor does it
establish the earliest that the letter was written.

9
Generally, it is permissible for the Commonwealth to

impeach its own witness. See Commonwealth v. Reddick, 372 Mass.

460, 464 (1977), S.C., 381 Mass. 398 (1980); G. L. c. 233, § 23.

However, the Commonwealth is not permitted to call "a witness

whom [it] knows beforehand will offer no testimony relevant to

an issue at trial solely for the purpose of impeaching that

witness with prior inconsistent statements that would otherwise

be inadmissible." Commonwealth v. McAfee, 430 Mass. 483, 489-

490 (1999).

Here, the defendant asserts that because the Commonwealth

disclosed in a hearing prior to trial that the "purpose of [the

mother] testifying" was to address admissions the defendant

allegedly made to her and that the mother reported to DCF, the

mother was clearly called for impeachment purposes alone.

However, there was no mention at this hearing that the

Commonwealth affirmatively expected the mother to deny having

heard or reporting the admissions at issue. At that same

hearing, the Commonwealth also asserted that it would call the

DCF worker in question to testify should the mother deny having

heard or reported the defendant's admissions. Although the

defendant argues that this is sufficient to show the

Commonwealth meant to call the mother simply to contradict her,

we are not persuaded that uncertainty regarding the mother's

10
testimony is indicative of the Commonwealth calling the mother

in bad faith. See Commonwealth v. Thomas, 429 Mass. 146, 156-

157 (1999) (no impropriety in Commonwealth calling witness to

establish potential rebuttal).

Further, the defendant argues that the Commonwealth's

direct examination of the mother did not contain any probative

questions that were not related to her alleged conversation with

the defendant. This argument is unavailing. The mother's

testimony about her family and household arrangements, the

length of her relationship with the defendant, that she

confronted the defendant about the victim's allegations, and the

defendant's response, were all relevant evidence concerning the

criminal charges for which the defendant was on trial. See

McAfee, 430 Mass. at 490 ("[T]he testimony which [a party] seeks

to contradict must first be deemed relevant to issues on

trial"). We thus conclude the judge did not err in allowing the

Commonwealth to call the victim's mother to testify as to

significant, relevant issues, even if a portion of her testimony

may have been anticipatorily subject to impeachment. See Cramer

v. Commonwealth, 419 Mass. 106, 111 n.3 (1994).

3. Scope of cross-examination. The defendant argues that

the judge improperly hampered the defendant's cross-examination

of the victim's mother by sustaining the Commonwealth's

11
objection to a line of questioning as to whether the defendant

stated, "the devil made [me] do it." Because defense counsel

did not object to the judge's limiting of cross-examination, we

review for whether an improper restriction by the judge created

a substantial risk of a miscarriage of justice. See

Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 235 (2012)

("[t]he acquiescence of defense counsel to actions taken by the

trial judge can constitute a waiver of any objection to the

judge's actions").

A judge has broad discretion to "direct the course of a

trial, and this judicial discretion extends to limiting and

otherwise controlling cross-examination." Commonwealth v.

Vardinski, 438 Mass. 444, 451 (2003), citing Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986). "To determine whether the

judge unreasonably limited cross-examination, 'we weigh the

materiality of the witness's direct testimony and the degree of

the restriction on cross-examination.'" Vardinski, supra,

quoting Commonwealth v. Miles, 420 Mass 67, 72 (1995).

During cross-examination of the victim's mother, the

defendant purportedly sought to impeach the victim regarding her

statement that she overheard the defendant admit to the victim's

mother that the "devil made him [sexually assault the victim]";

the victim's mother did not testify that the defendant made this

12
statement. Defense counsel did not ask to be heard to press

this line of questioning, but instead responded "[o]kay."

Even if it was error to sustain the objection, there was no

substantial risk of a miscarriage of justice. The jury heard

the victim's and the victim's mother's conflicting testimony

concerning the defendant's statements; on direct examination,

the mother testified that the defendant told her "[t]hat if he

touched [the victim] for any reason, it was by mistake 'cause

they're always playing around and goofing around," which is

indeed a different statement than what the victim testified to

hearing, specifically, that the "devil made him do it." Thus,

the "degree of restriction on cross-examination" was not

complete, as the witness's direct testimony offered evidence

related to the defendant's intent. See Vardinski, 438 Mass. at

451. See also Commonwealth v. Pierce, 66 Mass. App. Ct. 283,

289 (2006) (no substantial risk of miscarriage of justice

because "[c]ross-examination that is somewhat impeded, but not

totally foreclosed, presents a weaker case for finding a denial

of rights than a complete absence of cross-examination"

[citation omitted]). Therefore, the judge did not abuse his

discretion by sustaining the Commonwealth's objection to defense

counsel's question. See Souza, 492 Mass. at 626.

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4. Closing argument. The defendant argues that the

Commonwealth misrepresented the victim's mother's testimony in

its closing argument on two occasions; first, by stating, "[the

mother's] testimony on direct examination was that the defendant

did admit to touching [the victim]. She told you that he said

they must have been playing around but that he touched her

breast," and second, "if [the victim] was lying . . . Why did

[the defendant] tell his wife that he did touch [the victim's]

breast?" We see nothing improper about these statements.

The Commonwealth's statements were in reference to the

victim's mother's testimony on direct examination, which was, in

pertinent part:

Q: "Did you speak to him about those allegations?"

A: "I did."

Q: "And, did he admit those allegations to you?"

A: "He did not."

. . .

Q: "So, when he said that he may have touched her,
what was he referring to?"

A: "Well, when she said that he touched her boob, so
that's why I confronted him."

Q: "So, it was her breast that he was talking about?"

A: "Yes."

14
The prosecutor's statements were reasonable inferences that

could be drawn from this testimony. See Commonwealth v. Roy,

464 Mass. 818, 829 (2013). See also Commonwealth v. Blaikie,

375 Mass. 601, 612 (1978) ("counsel may argue inferences from

the evidence which are most favorable to his or her theory of

the case, as long as the inferences drawn are reasonable").

Even assuming for the sake of argument that there was

error, we discern no substantial risk of a miscarriage of

justice.8 In determining whether a prosecutor's improper

statements warrant reversal, the following factors are

collectively considered:

"[W]hether defense counsel seasonably objected to the
arguments at trial[;] whether the judge's instructions
mitigated the error; whether the errors in the arguments
went to the heart of the issues at trial or concerned
collateral matters; whether the jury would be able to sort
out the excessive claims made by the prosecutor; and
whether the Commonwealth's case was so overwhelming that
the errors did not prejudice the defendant" (citations
omitted).

Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), S.C., 427

Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).

Here, as to the first factor, the defendant's lack of

objection to the Commonwealth's closing argument "is some

indication that the tone, manner, and substance of the now

8 The defendant did not object to the Commonwealth's closing
argument at trial. See Commonwealth v. Cuffee, 492 Mass. 25, 32
(2023).

15
challenged aspects of the prosecutor's argument were not

unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360

(1985). Second, although the judge did not specifically repeat

during the final jury charge that statements made in either

party's closing argument are not to be considered as evidence,

the judge did so state at the beginning of the very short trial,

and jury deliberations began on the same day. See Commonwealth

v. Allen, 379 Mass. 564, 583-584 (1980) ("[i]t is normally

assumed" that any instructions given by judge "are followed by

jurors, absent any reason appearing in the record to suggest

otherwise"). As to the third factor, the prosecutor's

statement, "Why did [the defendant] tell his wife that he did

touch [the victim's] breast?" arguably "went to the very heart

of the case" and "struck" at a key aspect of the defense, as the

jury could have found that this interpretation of the mother's

testimony bolstered the victim's credibility. Commonwealth v.

Shelley, 374 Mass. 466, 471 (1978), S.C., 381 Mass. 340 (1980)

and 411 Mass. 692 (1992). However, the prosecutor's statement

was a reasonable interpretation based on the same testimony that

the jury heard. See Blaikie, 375 Mass. at 612 ("In their

summations to the jury, counsel may argue inferences from the

evidence which are most favorable to his or her theory of the

case, as long as the inferences drawn are reasonable"). Fourth,

16
the jury returned verdicts of guilty of two of the charges

against the defendant, and not guilty of the other three

charges, thereby suggesting that even if the Commonwealth's

closing was inartful, the jury were able to "take [the argument]

with a grain of salt." See Commonwealth v. Bradshaw, 385 Mass.

244, 277 (1982).9

5. Cellebrite report. The defendant next argues that the

judge abused his discretion by denying the defendant's request

for a mistrial, and by not reopening the evidence, where the

defendant alleges the Commonwealth committed a discovery

violation by failing to provide identifying information

concerning the police officer who performed the Cellebrite

extraction from the victim's cell phone. Prior to defense

counsel's calling of Weymouth police detective Edward Williams

to testify for the purpose of admitting evidence of the

Cellebrite report, the Commonwealth alerted the court that it

did not think Williams was the officer who performed the

extraction. The defendant now argues that, because he was

prevented from knowing the police officer who performed the

9 As to the fifth factor, it is not clear that the
Commonwealth's case against the defendant was overwhelming, see
Santiago, 425 Mass. at 500, but the fact that this was a close
case does not independently warrant reversal; "all these
considerations must be undertaken on a case-by-case basis."
Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).

17
analysis documented in the Cellebrite report, he was prejudiced

against being able to properly challenge the Commonwealth's

evidence concerning text messages between the victim and

defendant. We disagree.

It is undisputed that defense counsel possessed the

Cellebrite report more than two years before trial, which in

fact listed on the first page an officer Moideen as the

examiner. Thus, there is no factual basis to support the claim

of a discovery violation, and the judge properly denied the

defendant's motion for a mistrial.10

Judgments affirmed.

By the Court (Henry, Smyth &
Toone, JJ.11),

Clerk

Entered: September 17, 2025.

10The defendant appears to concede as much in his reply
brief, as he invites us to consider a new claim, that trial
counsel was ineffective for not identifying the examiner in the
report. We decline to address the ineffectiveness claim raised
for the first time in his reply brief. See Commonwealth v.
Zinser, 446 Mass. 807, 810 (2006), quoting Care & Protection of
Stephen, 401 Mass. 144, 150 & n.4 (1987) ("[a]bsent exceptional
circumstances, we do not review claims of ineffective assistance
of counsel for the first time on appeal"). The defendant may
pursue such a claim in a postconviction motion for new trial.
11 The panelists are listed in order of seniority.

18