Commonwealth v. Barry Farris.

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-782

COMMONWEALTH

vs.

BARRY FARRIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted by a Superior Court jury on two indictments for

rape of a child aggravated by age difference, G. L. c. 265,

§ 23A (a), and two indictments for indecent assault and battery

on a child, G. L. c. 265, § 13B, the defendant appeals. He

argues that a substantial risk of a miscarriage of justice arose

from the prosecutor's closing argument, contending that the

prosecutor impermissibly appealed to sympathy, misstated

evidence, referred to facts not in evidence, and shifted the

burden of proof to the defendant. We affirm.

Background. We summarize the facts the jury could have

found based on the evidence at trial. When the victim was about

eight years old, she, her siblings, and their mother moved into
an apartment that the victim's grandmother shared with her

husband, the defendant. The victim slept on the living-room

floor with her mother and siblings. The victim's aunt lived in

an apartment on the same hallway, and often fed the victim and

her siblings.

At that time, the victim loved her mother and wanted her

affection. However, her mother was not around very much; she

went out to "party" and left the victim and her siblings with

the grandmother and the defendant. The victim did not have

contact with her father or grandfather, and so the defendant was

the only male she saw regularly. The defendant became "like

[her] father." He took the victim places and helped her with

homework.

While the victim was in the defendant's bedroom watching

television, he would have her give him back rubs. The touchings

progressed, and eventually the defendant raped the victim by

penetrating her genital opening with his tongue and her vagina

with his penis, and indecently touched her by putting his hand

on her vaginal area and making her put her hand on his penis.

The touchings continued almost every day for years.

On June 19, 2014, when the victim was nine years old, the

aunt came to get her for dinner. The aunt opened the

defendant's bedroom door and saw the victim adjusting her

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clothes and the defendant adjusting his shorts. The aunt took

the victim to her apartment, where the aunt spoke to the

victim's mother. The victim was anxious and kept using the

bathroom.

The aunt and the mother took the victim to a hospital where

she underwent an examination by a sexual assault nurse examiner

(SANE). At that point the victim had not had any sex education,

and no one had told her about good or bad touching. She

referred to her genitals as "my privacy" and to the defendant's

genitals as his "boy thing." The victim had not yet had her

first menstrual period, and so the SANE examined her genitals

only externally, because internal examination would be painful.

The victim's external genitals were within normal limits. A

different SANE testified as an expert that sexual activity does

not always leave scars or injuries; injuries are found in only

about three to five percent of SANE examinations of children who

report having been sexually assaulted, even though some cases

without injuries involve video evidence of the child being

penetrated.

Subsequent testing on a swab taken from the victim's lower

abdomen was positive for semenogelin, a component of sperm, and

amylase, a component of saliva. Semenogelin and saliva can be

transferred only when wet. Testing revealed that the

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defendant's DNA matched the DNA profile of the semenogelin and

saliva.1

After the SANE examination, the victim's mother brought her

back to the defendant's apartment. About a year later, the

victim was placed in the custody of the Department of Children

and Families. At first, she wanted to go back to the mother's

custody, but then she "came to terms with how awful of a person

[the mother] is." She and her siblings were adopted by other

families. As of trial, the victim did not want to see or speak

to her mother or grandmother.

The defense presented its case through cross-examination of

the Commonwealth's witnesses and testimony of the defendant and

his wife, the victim's grandmother. The defendant denied that

he ever touched the victim inappropriately, but admitted that

she sometimes gave him back rubs. In closing, defense counsel

argued that the victim was not credible because of

inconsistencies in her statements, the lack of evidence of

injury, and the dearth of forensic evidence. From testimony

that the victim and the defendant used the same towels, and from

a DNA analyst's testimony about possible transfer, defense

1 The expected frequency of occurrence of the DNA profile is
approximately one in 1,335 males, thus excluding 99.92 percent
of the male population.

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counsel argued that the defendant's DNA on the victim's lower

abdomen could have been transferred there from a towel.

The jury convicted the defendant of two indictments for

rape of a child aggravated by age difference, by putting his

tongue and his penis into the victim's genital opening, and two

indictments for indecent assault and battery on a child, by

putting his hand on the victim's vaginal area and by the victim

putting her hand on his penis.2 The defendant appeals.

Discussion. The defendant argues that in closing argument

the prosecutor committed misconduct by appealing to jurors'

sympathies, misstating evidence, referring to facts not in

evidence, and shifting the burden of proof to the defendant.

The defendant did not object to those comments at trial, and so

we review the closing argument to "determine whether there was

an error and, if so, whether the error created a substantial

risk of a miscarriage of justice." Commonwealth v. Kozubal, 488

Mass. 575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).

1. Appeal to sympathy. The defendant argues that the

prosecutor impermissibly appealed to sympathy by arguing that

the victim was "easy prey" who was vulnerable because "the only

2 The jury acquitted the defendant of two indictments
charging rape of a child by force, G. L. c. 265, § 22A, and two
charging indecent assault and battery on a child, G. L. c. 265,
§ 13B.

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person that she really thought cared about her and loved her was

the defendant," and his attention was "the only love she knew."

Having carefully reviewed the prosecutor's closing argument, we

conclude that her comments about the victim's vulnerability were

"strongly worded but not unfair descriptions of the facts."

Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 623 (2018). See

Commonwealth v. Pontes, 402 Mass. 311, 316 (1988) (prosecutor's

repeatedly referring to multiple rapes by two defendants as

"degrading" was "fair characterization of the evidence," and

jurors' resulting sympathy was "understandable but

unavoidable"). The comment about the defendant's being "the

only love [the victim] knew" was hyberbolic, but excusably so.

See Commonwealth v. Huang, 489 Mass. 162, 181 (2022).

2. Misstating evidence. The defendant contends that the

prosecutor misstated evidence when she asked the jury "doesn't

it make sense" that no evidence of injury was found on the

victim's external genitals because "if you do it over and over

and over again, your body becomes accustomed to it. Like if you

play the guitar and your fingers get red, but over time that

stops happening." That argument was apparently an attempt at

arguing the victim's credibility through commonsense logic. The

problem was that the argument contradicted the testimony of the

Commonwealth's expert SANE, who opined that the number of times

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a patient has had sexual intercourse would not affect the

likelihood of finding physical injuries.

We agree with the defendant that the prosecutor's analogy

to a guitarist's fingertip callouses was not grounded in the

evidence, but we conclude that it did not give rise to a

substantial risk of a miscarriage of justice. The evidence was

undisputed that the SANE examination showed that the victim's

external genitals were "within normal limits." The victim's

testimony did not give rise to any inference that the defendant

caused any bruising or scarring: she testified that the

defendant's touchings made her feel "[g]ood" and "[her] body

liked it." For the prosecutor to contradict her own expert's

testimony would not have helped the Commonwealth's case.

3. Facts not in evidence. The defendant contends that the

prosecutor argued facts not in evidence when she asked the jury

if it "ma[d]e sense" that "an eight or nine year old child who

calls her body part a privacy and a bum, and doesn't even know

what they're actually called, would know the intimate details of

how intercourse occurs."

Again, the prosecutor's argument was apparently an attempt

at arguing the victim's credibility through commonsense logic.

The problem was that there was no evidence that a child's

referring to body parts with childish words, as opposed to

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clinical terms -- or, for that matter, obscenities -- would

correlate with knowledge of specific sex acts. See Commonwealth

v. Beaudry, 445 Mass. 577, 581 (2005) (record did not show that

assumption that young children are unaware of sexual acts and

terminology "remains valid today"). Even so, we conclude that

the argument did not give rise to a substantial risk of a

miscarriage of justice. The victim's detailed testimony about

the sexual assaults was corroborated by her aunt's discovery of

the victim and the defendant in the bedroom and the evidence of

the defendant's DNA in sperm and saliva on her lower abdomen.

The defendant contends that the argument did cause

substantial risk of a miscarriage of justice because the

prosecutor knew "that there were likely alternative reasons for

[the victim] to have that knowledge," including her having

watched pornography and had sexual contact with another male

relative. From the record before us, we cannot conclude that

there was any such evidence. Relying on cases including

Commonwealth v. Michalski, 95 Mass. App. Ct. 520, 524 & n.2

(2019), the Commonwealth moved in limine to preclude the defense

from introducing evidence that the defendant told police that he

had seen the victim watching pornography, and that she probably

was molested by another male staying in the apartment. The

judge ruled, "I will wait [until] the issue comes up during

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trial. If it does, and . . . there's an objection, I will rule

on it in context." During trial, defense counsel asked the

victim on cross-examination if she knew several other males, by

name, saying that each of them had lived in the apartment or

spent time there; the victim replied that she did not remember

those males. The defendant never sought to introduce evidence

that the victim had watched pornography or been molested by

another male. We cannot conclude from this record that there

was any such evidence.

4. Burden shifting.3 Finally, the defendant argues that

the prosecutor shifted the burden of proof by asking the jury,

"What benefit did [the victim] have from saying what the

defendant did to her for years?" The prosecutor asked that

question immediately after arguing that the victim did not have

a motive to lie because her disclosure of sexual abuse resulted

in her being taken away from her family, which she did not want.

"Contrary to the defendant's broadest contention, there is

no categorical prohibition against suggestion by a prosecutor

3 Although the defendant contends that he objected to the
prosecutor's closing argument on grounds that it shifted the
burden, he did so only as to the prosecution's suggestion that
he had an obligation to speak to the police -- an argument he
does not pursue on appeal. Consequently, we review the
defendant's burden-shifting argument for a substantial risk of a
miscarriage of justice. See Kozubal, 488 Mass. at 590.

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that a prosecution witness has no motive to lie." Commonwealth

v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). The prosecutor's

argument came in response to defense counsel's argument that the

victim "had a tumultuous childhood" and during "a very difficult

time for her" she "tended to make things up." Thus, the

prosecutor's rejection of the victim's alleged motive to lie was

grounded in the evidence. Id. at 180. We similarly conclude

that the prosecutor permissibly argued from the evidence that

the defendant had the opportunity to sexually assault the

victim, the grandmother was not credible when she testified that

the victim was in bed with the defendant because the victim had

migraines, and the jury should use their common sense in

assessing the defense theory that the victim wiped the

defendant's bodily fluids on her abdomen with a towel. There

was no burden shifting.

Judgments affirmed.

By the Court (Singh, Grant &
Tan, JJ.4),

Clerk

Entered: February 20, 2026.

4 The panelists are listed in order of seniority.

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