Commonwealth v. Luis Merced Navaez.

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

22-P-37

COMMONWEALTH

vs.

LUIS MERCED NAVAEZ.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was found guilty of rape, assault and battery on a family or

household member, and assault and battery on a pregnant person.

On appeal, the defendant argues that the judge erred in

admitting prior and subsequent bad act evidence. We affirm.

Background. The defendant and the victim met in 2012 and

were initially friends before beginning a romantic relationship,

and the two started living together in 2014. After the

defendant was released from prison in 2019, he often visited the

victim at her apartment, where she was living with their son

(born in 2016) and her son from a previous relationship. In

July 2019, the defendant became aggressive when he found out

1 As is our usual practice, we take the defendant's name as it
appears on the indictments.
that the victim was pregnant again. Around the same time, the

victim also became suspicious that the defendant was in a

relationship with another woman. When she questioned the

defendant about her concerns, he refused to answer.

On August 3, 2019, the defendant arrived at the victim's

apartment, and the two went into her bedroom. The victim

questioned the defendant about whether he had been seeing

another woman. The defendant became aggressive and told the

victim that "he had just come over that day so [she] would cook

for him" and "meet his needs as a woman." The victim's younger

son tried to come into her bedroom, and she had a "tug of war"

with the defendant so that she could get their son out of the

room. The defendant pulled the victim from the doorway to the

bed by her hair, covered her mouth so that she could not yell,

and put his hands on her neck. The defendant then threw the

victim on the bed, tore her pants off, held her arms with his

hands, and put his penis in her vagina. The victim screamed and

told the defendant to stop because she was afraid that she would

lose the baby. The victim's fourteen year old son heard the

screaming and heard the victim yell, "Get off of me" in Spanish.

He testified that when the victim came out of her bedroom, she

was hurt and bruised. She did not report the rape at that time.

On August 5, 2019, the victim went to see the defendant

with plans to end their relationship. When she confronted him,

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he picked up a phone charger and hit her with the cord multiple

times. After that, the victim was terrified and in pain. Two

days later, on August 7, 2019, the victim reported both the rape

and the assault with the phone charger to the police.

Discussion. Before trial, both parties filed motions in

limine regarding the admission of prior and subsequent bad act

evidence. The Commonwealth sought to admit evidence that the

defendant had previously committed an assault and battery on the

victim in 2015 while she was pregnant, and that on August 5,

2019, the defendant struck the victim with the cord of a phone

charger. The judge allowed the Commonwealth's motion and denied

the defendant's motion.

It is well established that "[e]vidence of a defendant's

prior or subsequent bad acts is inadmissible for the purpose of

demonstrating the defendant's bad character or propensity to

commit the crimes charged." Commonwealth v. Crayton, 470 Mass.

228, 249 (2014). However, the Commonwealth may introduce such

evidence for another purpose, including to establish "motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident" (quotation omitted).

Commonwealth v. Peno, 485 Mass. 378, 385 (2020). A judge must

engage in a two-part inquiry to determine whether to admit bad

act evidence at trial. See id. at 386. "First, the evidence

must be relevant to something other than the defendant's

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propensity to commit the charged offense . . . Second, if the

evidence is relevant, its prejudicial effect must not outweigh

its probative value." Id. We review to determine whether there

was error, and if so, whether it was prejudicial. See Crayton,

470 Mass. at 252.

Prior bad act evidence. The judge found that the prior bad

act evidence (the 2015 assault) was relevant to the nature of

the parties' relationship, the defendant's state of mind, his

intent, and the absence of mistake. The defendant argues that

this was error. We disagree. The evidence was relevant to

demonstrate that the defendant and the victim had a hostile

relationship. See Commonwealth v. Oberle, 476 Mass. 539, 550

(2017) ("It is well established that in appropriate cases, a

defendant's prior acts of domestic violence may be admitted for

the purpose of showing a defendant's motive and intent and to

depict the existence of a hostile relationship between the

defendant and the victim" [quotation omitted]). See also

Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016)

(prior bad act admissible to show "the history of the

relationship [between the defendant and the victim] to give

context to the jury" [quotation omitted]). Additionally, the

victim was pregnant both during the 2015 assault and when the

rape and assault in this case occurred. Accordingly, the

earlier assault was probative of the defendant's mental state

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and intent. See Oberle, 476 Mass. at 550-551. The judge

reduced the prejudicial effect of the evidence by precluding the

victim from testifying to the underlying facts of the 2015

assault. He also explained to the jury that they could only

consider the uncharged prior act as probative of the nature of

the parties' relationship or either party's state of mind. See

Commonwealth v. Lowery, 487 Mass. 851, 868-869 (2021) (no abuse

of discretion when risk of prejudice was mitigated by multiple

limiting instructions).

The defendant also argues this evidence should not have

been admitted in evidence because it was not charged conduct.

However, evidence of uncharged conduct may be admissible in

sexual assault cases to show the jury a full view of the

relationship between the defendant and the victim. See

Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006). This is

particularly true when, as here, the judge instructed the jury

that the conduct was uncharged, and it would therefore be unfair

to consider it for propensity purposes. Additionally, the judge

did not err in his determination that the 2015 assault was not

too remote in time because the defendant had been incarcerated

for almost three and a half of the four intervening years. See

Commonwealth v. Kater, 432 Mass. 404, 416 (2000) (length between

two crimes not so temporally remote as to preclude admission of

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the earlier offense because defendant spent most of that ten-

year period in prison). There was no error.

Subsequent bad act evidence. The judge found that the

subsequent bad act evidence helped to explain why the victim

delayed in reporting the rape and assault. The defendant claims

this was error, and that it had minimal probative value. We are

not persuaded as the judge both limited the scope of the

victim's testimony about the assaults and gave the jury limiting

instructions. Moreover, when a judge determines that defense

counsel plans to impeach a witness about a delay in reporting,

as he did here based on the defendant's opening statement, it is

proper for the Commonwealth to elicit testimony regarding the

circumstances of the delayed disclosure on direct examination.

See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 396 (2006).

The judge also gave a limiting instruction that the testimony

was admitted only to explain the witness's state of mind in

delaying her report of the crime. See id. Finally, subsequent

bad acts may be admitted when the parties are in an ongoing,

abusive relationship, as they were here, to explain a victim's

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seemingly illogical actions and reactions. See Commonwealth v.

Childs, 94 Mass. App. Ct. 67, 72 (2018). There was no error.

Judgments affirmed.

By the Court (Meade, Blake &
Brennan, JJ.2),

Clerk

Entered: June 1, 2023.

2 The panelists are listed in order of seniority.

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