Commonwealth v. Joseph v. Boucher.

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-170

COMMONWEALTH

vs.

JOSEPH V. BOUCHER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of indecent

assault and battery on a person under fourteen years old

(touching of breasts).1 On appeal, the defendant contends that

the judge erred by admitting bad acts evidence and failing to

instruct the jury on the limited purpose for the admission of

that evidence. The defendant also argues that a substantial

risk of miscarriage of justice resulted from a misstatement of

the law and improper bolstering of the victim's testimony in the

prosecutor's opening statement and closing argument. We affirm.

1The jury acquitted the defendant of indecent assault and
battery on a person under fourteen years old (touching of
buttocks) and indecent assault and battery on a person fourteen
years or older (touching of vagina).
Background. The Commonwealth presented the following

evidence. The victim was born in January 2000. During the

summer of 2011, the victim and her older sister moved into their

aunt's house. The defendant also lived there and was the aunt's

boyfriend. The victim knew the defendant for most of her life

and considered him an uncle.

Around November 2011, the defendant began to rub the

victim's back and slap her buttocks in front of other people at

the house. This behavior continued until February 2013, when

the victim moved out of her aunt's house, despite the victim

asking the defendant to stop it. During this same period, the

defendant touched the victim nightly while she was lying in bed.

The victim and her sister shared a bedroom, with the victim's

bed abutting a window that opened to the front exterior porch.

From the porch, the defendant would open the window, place his

hand through it, and grope the victim's breasts. The defendant

also frequently stood in an alley behind the house and watched

the victim through a window when she showered or used the

bathroom. In response, the victim put a towel over the window

or asked her sister to come to the bathroom with her to block

the view from the alley.

The victim's best friend stayed overnight at the victim's

house almost every other weekend in 2011 and during part of

2012. She slept in the victim's bedroom. One night, the friend

2
awoke to the defendant opening the victim's bedroom window and

saw him put his hand through it. When she tried to awaken the

sleeping victim, the defendant removed his hand and retreated

into the house. The friend also saw the defendant looking at

her through the bathroom window while she showered.

In August 2014, faced with the prospect of being placed in

foster care, the then fourteen year old victim moved back into

her aunt's house. She initially slept on the sun porch, which

had a locked door. At some point, the victim moved into a

bedroom with her sister and infant nephew. The bedroom was

different from the one the victim shared with her sister during

her previous stay. The victim slept on a mattress next to her

sister's bed. The bedroom had no door, only a curtain, and the

defendant had to pass through the room to get to the bedroom he

shared with the victim's aunt. Every night until the victim

moved out of the house, the defendant entered her bedroom,

leaned over her as she lay in bed, and touched her breasts and

vagina over her clothing. The victim never yelled out or spoke

to the defendant, and her sister never woke up during these

assaults. The victim left her aunt's house permanently in

February 2015.

Discussion. 1. Bad act evidence. The defendant asserts

that the admission of bad act evidence and the judge's failure

to give, sua sponte, instructions to the jury on the limited

3
purpose of that evidence was reversible error in this case. We

disagree.

a. Admissibility. The defendant argues that testimony at

trial about his uncharged misconduct was improper because it

created an undue risk that jurors might consider it as evidence

of his bad character or propensity to engage in criminal sexual

acts. Although the defendant generally objected to the

Commonwealth's motion in limine to admit bad act evidence, he

did not object during trial to the admission of testimony about

his uncharged misconduct.

"[E]vidence of prior bad acts 'is not admissible to show a

defendant's bad character or propensity to commit the charged

crime.'" Commonwealth v. Facella, 478 Mass. 393, 403 (2017),

quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006).

"[S]uch evidence is admissible when offered for another purpose,

such as motive, opportunity, intent, preparation, plan,

knowledge, identity, or pattern of operation, so long as its

probative value for that purpose is not outweighed by its

prejudicial effect." Commonwealth v. Welch, 487 Mass. 425, 442-

443 (2021), quoting Commonwealth v. Hall, 485 Mass. 145, 163

(2020). "These matters are 'entrusted to the trial judge's

broad discretion and are not disturbed absent palpable error.'"

Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting

4
Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied

sub nom. Keown v. Massachusetts, 583 U.S. 1139 (2018).

Here, the defendant specifically challenges the testimony

of uncharged conduct that the defendant touched the victim's

breasts nightly after she moved back to the aunt's house in 2014

(when the victim was fourteen years old), and that he peered at

the victim and her friend while they showered or used the

bathroom. The evidence that the defendant touched the victim's

breasts nightly in 2014 was relevant to show that "the

relationship between the defendant and the victim was one of

continuous sexual abuse," Childs, 94 Mass. App. Ct. at 71-72

(quotation and citation omitted), when she resided in the aunt's

house. It was also probative of the defendant's "pattern of

conduct and the existence of the defendant's sexual interest in

the victim." Commonwealth v. Centeno, 87 Mass. App. Ct. 564,

567 (2015). To the extent that peering at the victim and her

friend qualified as bad act evidence,2 it was relevant to show

that the defendant had a sexual interest in the victim and a

voyeuristic interest in young females. See Commonwealth v.

Wallace, 70 Mass. App. Ct. 757, 765 (2007). We therefore

2 As the trial judge noted, the behavior likely fell short
of any criminal conduct.

5
conclude that the challenged evidence was not unduly prejudicial

and discern no abuse of discretion in its admission at trial.

b. Jury instructions. The defendant also contends that

the judge's failure to instruct the jury on the limited purpose

of bad act evidence exacerbated the risk of undue prejudice. He

asserts that the jury might have confused the charged crime

(indecent touching of the victim's breasts when she was under

fourteen) with an uncharged crime (indecent touching of the

victim's breasts when she was fourteen years of age or older).

We disagree.

We begin by noting that, because the defendant did not

request any instructions either contemporaneous with the

admission of the evidence or during the judge's final

instructions to the jury, it was not error for the judge not to

instruct the jury on the limited purpose of the bad act

evidence. See Commonwealth v. Nascimento-Depina, 496 Mass. 1,

9, cert. denied sub nom. Nascimento-Depina v. Massachusetts, 146

S.Ct. 260 (2025) ("We have never required a judge to give a

limiting instruction in the absence of a request for one, and

see no reason to create such a rule . . ."). As to the

defendant's claim that the jury were confused or misled, we look

at the judge's instructions holistically to determine whether

they fairly instructed the jury. See Commonwealth v.

Richardson, 429 Mass. 182, 185 (1999). Our review is for a

6
substantial risk of miscarriage of justice where the defendant

did not object to the judge's instructions. See Commonwealth v.

Desiderio, 491 Mass. 809, 815, 818 (2023).

The judge's final instructions were adequate, particularly

with respect to the facts that underpinned each crime. The

judge outlined each crime charged, including the body part

alleged to have been touched and the victim's age at the time.3

See Commonwealth v. Bryant, 482 Mass. 731, 737–738 (2019) (jury

presumed to follow judge's instructions). Consistent with the

jury instructions, each verdict slip delineated the charge, the

corresponding body part, and the victim's age. In addition,

there was a clear break in the temporal chain between the events

described by the victim before and after she turned fourteen:

she moved out of her aunt's house for about eighteen months.

There were also factual distinctions between the victim's

description of the assaults that occurred on either side of that

break in time. When she was under fourteen, the victim slept in

a room adjacent to the porch and the defendant reached his hand

3 The transcript of the jury instructions reflects that the
judge told the jury that "[t]he second charge is an indecent
assault and battery on a person under the age of 15" (emphasis
added). After a review of the audio recording from the trial,
the parties informed this court in a joint postargument filing
that this was a scrivener's error. The judge correctly informed
the jury that the charge required the victim to be under
fourteen years old.

7
in through a window to touch her breasts; when the victim

returned to the house after she turned fourteen, she slept in a

different bedroom through which the defendant walked to get to

his own room. Moreover, the acts for which the defendant was

convicted -- putting his hand through the porch window to touch

the victim's breasts -- were corroborated, at least in part, by

testimony of the victim's friend that she saw the defendant

reaching through the window into the bedroom one night.

On this record, we conclude that the jury were fairly

instructed on the elements and corresponding acts for each crime

charged. There was no substantial risk that the jury were

confused or that they convicted the defendant of a crime other

than the one with which he was charged. See Desiderio, 491

Mass. at 818.

2. Prosecutor's opening statement and closing argument.

Finally, the defendant argues that that the prosecutor made

statements in her opening statement and closing argument that

misstated the law and improperly bolstered the victim's trial

testimony. Because the defendant did not object at trial, our

review is "to determine if the statements were error, and, if

so, whether they created a substantial risk of a miscarriage of

justice." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9

(2019).

8
The defendant contends that it was improper for the

prosecutor to refer to the victim as a "child." He asserts that

the prosecutor misstated the law to the extent the defendant was

charged with indecent assault and battery on a child and, at

least as to some of the conduct, the victim was over fourteen

years old. This argument takes the prosecutor's statements out

of context. We think a fair reading of these fleeting

references in both the opening statement and closing argument is

that the prosecutor was highlighting the difference in age,

status, and power between a fourteen year old girl and a grown

man whom she regarded as an uncle. We discern no risk that

these statements confused the jury as to the legal status of the

victim at the various stages of her interaction with the

defendant. Furthermore, as discussed above, the judge gave

clear instructions on the legal requirements for each crime,

including the distinctions between indecent assault and

batteries that occurred before the victim turned fourteen years

old versus when she was fourteen years old or older.

The defendant further argues that the prosecutor improperly

vouched for the victim's credibility by stating that the victim

and her friend "took the stand" to tell the jury what had

occurred. Again, the defendant's argument takes the

prosecutor's statements out of context. The prosecutor's

references to the victim and witness "taking the stand" were

9
shorthand for the fact that they testified; nowhere does the

prosecutor argue either witness should be believed because she

took the witness stand. This is a material and meaningful

difference because the prosecutor did not impermissibly suggest

that the victim and her friend were entitled to greater

credibility merely because they were willing to testify. See

Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008).

Because we discern no error, there was no risk that either

the prosecutor's opening statement or closing argument caused a

miscarriage of justice. See Sanchez, 96 Mass. App. Ct. at 9-11.

Judgment affirmed.

By the Court (Desmond,
Hershfang & Brennan, JJ.4),

Clerk

Entered: May 18, 2026.

4 The panelists are listed in order of seniority.

10