Commonwealth v. Adalberto Martinez.

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

25-P-223

COMMONWEALTH

vs.

ADALBERTO MARTINEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following two Superior Court jury trials, the defendant,

Adalberto Martinez, was convicted of three counts of aggravated

statutory rape of a child, G. L. c. 265, § 23A. On appeal, the

defendant argues that (1) both trial judges improperly admitted

prior bad act evidence, and (2) the second trial judge

improperly admitted hearsay statements of a codefendant. We

affirm.

Background. We summarize the procedural history and the

relevant facts as the jury could have found them, reserving some

facts for later discussion. At the first trial, the defendant
was charged with two counts of conduct,1 one perpetrated against

the daughter of the defendant's then-girlfriend (victim one),

and the other against victim one's friend (victim two), both at

victim one's home in 2015 when the victims were approximately

ten years old. Victim two would often sleep over at victim

one's house. One evening in 2015, the victims were lying in bed

talking when the defendant entered the room, lay between the two

girls in the bed, and touched both girls' genitals. Victim one

told her mother, the defendant's then-girlfriend, about the

incident shortly thereafter, though not immediately afterwards;

victim one's mother told her not to tell anyone else. Victim

two disclosed the incident to her cousin in approximately March,

2020. Sometime between March and May of 2020, victim one

disclosed the incident to victim two's sister.

At the second trial, the defendant was tried on the first

count of the indictment with his codefendant, victim one's

mother (hereinafter, codefendant). This count charged the

defendant and the codefendant with conduct perpetrated against

the codefendant's sister (victim three), also in 2015, when

victim three was fifteen years old. In the summer of 2015,

victim three and another sister visited the codefendant at her

1 Counts two and three were severed at the defendant's
request, and on those counts he was tried alone. On count one
he was tried with his codefendant.

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home twice. On their second visit to the codefendant's house

that summer, the codefendant told victim three that, at some

point in the past, the codefendant had had sexual relations with

one of the defendant's cousins and, because the defendant was

angry about it, he physically abused the codefendant. The

codefendant cried and showed victim three a bruise on her arm.

The codefendant told victim three that "the only way to fix" the

situation would be if the defendant "had sex with someone close

to her." The codefendant offered victim three money "and [the

codefendant's] wellbeing" to have sex with the defendant.

Victim three agreed. Victim three went into the codefendant's

bedroom where the codefendant and the defendant were waiting.

The codefendant held one of victim three's legs open with a

tight grip while the defendant had sex with her.

Victim three testified that she did not immediately report

the incident because the codefendant asked her not to and "out

of embarrassment." A few months later, victim three told her

other sister about the incident with the defendant. Victim

three reported the rape to the police in 2016, but recanted in

October, 2016. Victim three testified that at the time that she

recanted she was living with the codefendant and that the

codefendant begged her not to move forward with the allegations.

In May 2020, victim three reported to the police that she wished

to move forward with the case.

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Discussion. 1. Prior bad act evidence. Prior to both

trials, the Commonwealth moved in limine to admit evidence of

uncharged conduct in the codefendant's bedroom by the defendant

against victim two's sister and a close friend of the

codefendant, who was around fifteen years old at the time. The

defendant encouraged victim two's sister to drink alcohol, take

off her shirt and dance for him, and when victim two's sister

got sick, he grabbed her and tried to pull her into another

bedroom. The defendant also made comments to victim two's

sister relating to her virginity and genitals.

The Commonwealth argued, at both trials, that the

defendant's conduct with victim two's sister showed a common

scheme and pattern of behavior with the indicted conduct, and

should be admitted at trial under Mass. G. Evid. § 404(b)(2)

(2025). The defendant moved to exclude victim two's sister's

testimony, arguing that the testimony would be used as

impermissible character evidence, and that even if the testimony

were admitted to show a common scheme or pattern of behavior,

the probative value of the testimony was outweighed by the risk

of unfair prejudice to the defendant. The judge in the first

trial allowed the Commonwealth's motion to admit victim two's

sister's testimony "in connection with [d]efendant's state of

mind and course of conduct towards female children." The judge

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in the second trial allowed the Commonwealth's motion to admit

the testimony for "state of mind, motive, intent, and methods."

On appeal, the defendant argues that the rulings of both

judges were abuses of discretion. "We review a trial judge's

evidentiary decisions under an abuse of discretion standard."

N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466

Mass. 358, 363 (2013). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude 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" (quotation and citations omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See

Nyberg v. Wheltle, 101 Mass. App. Ct. 639, 648 (2022). Because

the defendant's objection was preserved at the second trial, we

review it for prejudicial error. See Commonwealth v. Reyes, 483

Mass. 65, 78 (2019).

Prior bad act evidence is inadmissible for the purpose of

demonstrating a defendant's bad character or propensity to

commit the crimes charged. See Commonwealth v. Crayton, 470

Mass. 228, 249 (2014). "However, such evidence may be

admissible for some other purpose, for instance, to establish

motive, opportunity, intent, preparation, plan, knowledge,

identity, or pattern of operation" (quotation and citation

omitted). Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).

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See Mass. G. Evid. § 404(b)(2). Both judges allowed victim

two's sister's testimony to show a common scheme or pattern.

The judge in the first trial found that "[t]he conduct regarding

victim [two]'s sister may be considered in connection with

Defendant's state of mind and course of conduct toward female

children." The judge in the second trial found that the jury

could consider the testimony as evidence that (1) the defendant

"had a sexual interest in teenage girls;" (2) the defendant's

"attraction to teenage girls included girls who had close

relationships with [the codefendant];" (3) "the defendants would

work together to pursue [the defendant's] sexual interest;" (4)

"the defendants used alcohol as part of their plan;" and (5)

"the defendants' plan included using [the codefendant]'s bedroom

as the site of the sexualized activity." The testimony was

properly admitted "for state of mind, motive, intent, and

methods" in both trials.

The defendant argues that even if victim two's sister's

testimony is admissible to show a common pattern, motive, or

scheme, that it is inadmissible because "its probative value is

outweighed by the risk of unfair prejudice to the defendant,

even if not substantially outweighed by that risk." Crayton,

470 Mass. at 249 n.27. See Mass. G. Evid. § 404(b)(2). Both

judges determined that the probative value of victim two's

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sister's testimony outweighed the prejudicial effect.2 We

discern no error from these determinations. Moreover, both

judges gave forceful limiting instructions in their final charge

to the jury as to how the jury could use victim two's sister's

testimony, mitigating its prejudicial effect.3 Given the

thoughtful reasoning of both judges, and the limiting

instructions given to both juries, we discern no abuse of

discretion or prejudicial error in the admission of victim two's

sister's testimony.

2. Hearsay statement admitted under the joint venture

exception. The codefendant's mother testified at the second

trial that the codefendant contacted her in 2019 to reestablish

their relationship. The codefendant's mother told the

codefendant that, if she wanted to reconcile, the codefendant

had to tell the truth about the incident with victim three. The

codefendant and her mother met, and the codefendant told her

mother that the defendant had sex with victim three in the

2 At sidebar in the second trial, the judge noted that the
defendant's attempt to raise a defense of fabrication reinforced
the probative value of victim two's sister's testimony. He also
concluded "that the probative value [of the testimony] is
significant and outweighs the prejudicial effect of informing
the jury of uncharged noncriminal conduct."

3 In addition to the limiting instruction in the final
charge to the jury, the judge in the first trial gave a
contemporaneous limiting instruction on prior bad acts during
victim two's sister's testimony.

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summer of 2015 "to make it even" because the codefendant had had

sex with the defendant's family member. The defendant argues

that the codefendant's statements to her mother should not have

been admitted against him under Mass. G. Evid. § 801(d)(2)(E)

because the statement was not made during a cooperative effort

or in furtherance of a joint venture, but that the joint venture

had ended.

"[T]he joint venture exception to the hearsay rule does not

apply to statements made after the joint venture has ended."

Commonwealth v. Winquist, 474 Mass. 517, 522 (2016). However,

"[s]tatements made in an effort to conceal a crime, made after

the crime has been completed, may be admissible under the joint

venture exception because the joint venture [remains] ongoing"

(citation omitted). Id. Before admitting testimony under the

joint venture exception, "a trial judge must first determine,

based on a preponderance of admissible evidence other than the

offered statement, that a criminal joint venture existed between

the declarant and the defendant and that the offered statement

was made during and in furtherance of the joint venture."

Commonwealth v. Steadman, 489 Mass. 372, 379 (2022). A

statement can be determined to be in furtherance of the joint

venture based "on direct or circumstantial evidence that the

coventurers had planned to conceal the crime or their

involvement in the crime." Commonwealth v. Brown, 474 Mass.

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576, 587 (2016). "A judge's determination as to the existence

and scope of a joint venture is reviewed under the abuse of

discretion standard." Winquist, 474 Mass. at 521.

Here, the Commonwealth established the existence of a joint

venture independently of the codefendant's statements. The

judge then found that the codefendant's mother, who had been

"aware of the allegations," and had been involved in having

victim three "go[] to the police once," "could have been the one

to get this whole thing reactivated." Contrary to the

defendant's contention that the joint venture had ended, the

judge concluded that the codefendant "was trying to enlist her

mother's loyalty so that she would not speak up." Where the

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statements furthered the efforts to conceal the crime, we

discern no abuse of discretion in admitting the testimony.4

Judgments affirmed.

By the Court (Meade,
Hodgens & Allen, JJ.5),

Clerk

Entered: April 13, 2026.

4 The defendant's argument that the admission of the
statement the codefendant made to her mother violated his right
to confrontation is also unavailing. "Generally speaking, the
statements of joint venturers . . . are deemed nontestimonial
under Crawford v. Washington, 541 U.S. 36, 56 (2004)."
Winquist, 474 Mass. at 521 n.6 (2016). See Commonwealth v.
Marrero, 436 Mass. 488, 493 (2002) (joint venture exception to
hearsay rule does not violate Bruton v. United States, 391 U.S.
123 [1968]).

5 The panelists are listed in order of seniority.

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