Commonwealth v. Luis Rivera.

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-303

COMMONWEALTH

vs.

LUIS RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of three

charges of aggravated rape of a child and one charge of indecent

assault and battery on a person over fourteen.1 On appeal the

defendant argues that the trial judge erred in admitting prior

bad act evidence and multiple first complaint evidence and that

various statements in the prosecutor's closing argument were

improper. We affirm.

Background. The Commonwealth elicited the following

evidence. The victim lived with the defendant (her stepfather),

her mother, and at various times her four siblings -- Dahlia,

1 All of the offenses involved the same victim. The three
aggravated rape indictments alleged that the rapes occurred on
divers dates between March 1, 2009, and March 1, 2015. The
fourth indictment alleged that the defendant committed an
indecent assault and battery -- "putting his penis on top of
[the victim's] vagina" -- on June 17, 2016.
Rosa, Julio, and Juanita.2 The victim shared a bedroom with

Juanita.

The victim's earliest memory of being assaulted by the

defendant was when she was in second or third grade and was at

home with Juanita and the defendant. The victim and Juanita

went to sleep in the bedroom shared by their mother and the

defendant. During the night the defendant took the victim back

to her bedroom, began to "hump" her through her clothes, removed

her pants and underwear, and slid his penis against her vagina.

Another time, the defendant came into the victim's bedroom

during the night holding a box cutter and gesturing to her not

to say anything. He proceeded to "hump" her through her clothes

and then pulled down her pants and underwear and slid his hands

against her vagina. The victim testified that the defendant

assaulted her in a similar manner on a weekly basis. Juanita,

who shared a bed with the victim, testified that she observed

the defendant assault the victim about three times a week.

The defendant also assaulted the victim elsewhere in the

home. One night, while everyone else was asleep, he stopped the

victim while she was passing through the living room to get to

the kitchen. The defendant put the victim on the ground,

removed her pants and underwear, and rubbed his penis against

2 The siblings' names are pseudonyms.

2
her vagina. Another assault occurred one day when the victim

was getting ready for school, her mother was not home, and

Juanita was still asleep. The victim was leaving the bathroom

wrapped in a towel, and the defendant stopped her and brought

her to his room. He proceeded to rub his penis against her

vagina.

After assaulting the victim, the defendant would sometimes

tell her to go to the bathroom to wash up and change her

underwear. The victim would find a "gooey" substance on her

vagina or underwear that she later understood to be semen.

Once, the victim's mother heard the victim crying in the

bathroom after an assault and asked her why she was crying. The

defendant, standing behind the mother, gestured at the victim

not to say anything, and the victim stated that nothing

happened.

Another night on which the defendant raped the victim, the

victim's mother entered the victim's bedroom and saw her crying.

When the mother asked the defendant what happened, the defendant

insisted that nothing happened and then grabbed a lamp and hit

it against the victim's head, breaking the lamp. Afterward, the

victim and Juanita asked for a lock for their bedroom door.

Either the mother or the defendant drilled holes in the

doorframe, and the victim and Juanita slid scissors and pencils

into the holes to create a makeshift lock.

3
The last assault occurred when the victim was finishing

eleventh grade in 2016. One morning the defendant knocked on

the victim's locked bedroom door while she was sleeping and

asked for help with his tablet. The victim told him that she

could not help and tried to shut the door, but he held it open

and entered the room. When the victim reached for her phone,

the defendant took it away and told her to lie on the bed. He

began "humping" her and directed her to remove her pants and

underwear. He then slid his penis against her vagina.

Afterward, he had the victim wash his semen off her underwear

and vagina and said that "if [she] told anyone he would kill

everyone in the house."

Soon after this assault, the victim told her mother and a

friend that the defendant had been abusing her. The victim then

went with some of her siblings to a police station, where she

reported the abuse to a detective. The detective went to the

family's home and recovered the victim's bedding, which tested

negative for the presence of semen. As a result of the victim's

report, the Department of Children and Families (DCF) sent her

to live with her aunt.

Discussion. 1. Prior bad acts. At the defendant's first

trial, which ended in a mistrial because of a deadlocked jury,

the judge excluded certain bad act evidence. At trial in this

case, the judge decided differently and admitted the evidence

4
over the defendant's objection. The judge reasoned that the

similarities of the bad acts to the charged assaults -- in time,

location, relationship, victims' age, and manner in which the

defendant gained access to the victims -- warranted their

admission.

The first piece of evidence at issue was the victim's

testimony about a sexual assault that occurred in Cambridge.3

The victim testified that she and the defendant were going to a

family cookout and the defendant offered to retrieve a tarp from

a storage facility where he worked. He insisted that the victim

go with him. Once inside the facility, the defendant told the

victim to lie on the floor. He removed the victim's pants and

underwear, took out his penis, put a condom on, and rubbed his

penis back and forth against her vagina.

The other evidence at issue concerned sexual abuse that the

defendant committed against three of the victim's siblings,

Dahlia, Julio, and Rosa. Dahlia testified that in 2003, when

she was sixteen years old, the defendant entered her bedroom

while she was sleeping, climbed on top of her, and started

touching her body. When she struggled, the defendant hit her,

retrieved a knife from the kitchen, and said he wanted to kill

3 This assault was not part of the charged conduct because it
occurred in a different county. The victim could not recall the
year in which it occurred.

5
her. Julio testified that he was watching television one

morning in the living room when the defendant entered, got on

top of him, and covered his mouth. The defendant pulled Julio's

pants down, tried to insert his penis into Julio's buttocks, and

urinated or ejaculated in that area. Inferentially, this

occurred in or about 2003, when Julio was younger than ten years

old. Finally, Rosa testified that, after she moved to the

United States in 2002, the defendant would often take her with

him in his car to run errands and would then park, get on top of

her, and make sexual movements. The defendant would also enter

Rosa's bedroom, get on top of her, take his penis out, and touch

her breasts. The defendant threatened to kill Rosa and her

siblings or take away their residency papers if she told her

mother.

The defendant argues that all of this evidence should have

been excluded as prior bad act evidence. Although prior bad

acts are "inadmissible for the purpose of demonstrating the

defendant's bad character or propensity to commit the crimes

charged," they may be admitted to show "motive, opportunity,

intent, preparation, plan, knowledge, identity, or pattern of

operation" (quotation omitted). Commonwealth v. Crayton, 470

Mass. 228, 249 (2014). Bad act evidence should be excluded,

however, "if its probative value is outweighed by the risk of

unfair prejudice to the defendant." Id. We review the judge's

6
decision to admit the evidence for abuse of discretion. See

Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014).

The judge was within her discretion to admit the evidence

of the uncharged Cambridge assault. That evidence was "relevant

to show a 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). It also was not

unfairly prejudicial where the jury heard evidence of the

charged conduct, which involved numerous instances of the

defendant assaulting the victim in a similar manner. Moreover,

the judge instructed the jury about the proper use and purpose

of bad act evidence after the victim's testimony and again in

the final charge. See Commonwealth v. Peno, 485 Mass. 378, 395-

396 (2020).

The judge was likewise within her discretion to admit the

testimony of the victim's siblings. After an extended

discussion with counsel, the judge carefully explained the

reasons for her decision, including that the victim and the

siblings had a similar relationship with the defendant -- i.e.,

he was their stepfather and a trusted authority figure, who

began abusing each of the children when they were of similar

age. The judge further reasoned that the assaults on the victim

and the siblings were close in time and mostly occurred in the

home, where the defendant had regular, unsupervised access to

7
the children. And, as the judge found, the defendant "created

situations where he was alone with [each] child, either by

coming in in the middle of the night or separating [the child

from] others." Given the similarities in the circumstances of

the assaults, the judge permissibly found that the siblings'

testimony was admissible for a nonpropensity purpose. See

Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 56 (2015) (bad

act evidence admissible because it "tended to show the

defendant's intent and inclination to commit the charged acts

and it corroborated the pattern of conduct testified to by the

victim").

Because the case turned on the victim's credibility, the

judge also permissibly concluded that the probative value of the

siblings' testimony outweighed any unfair prejudice to the

defendant. While the testimony was powerful, it did not

overwhelm the trial, during which the jury heard extensive

testimony about the charged conduct. Cf. Commonwealth v. Dwyer,

448 Mass. 122, 128-129 (2006). Moreover, at multiple points

during the trial, the judge gave careful limiting instructions

about the narrow purpose of bad act evidence, emphasizing that

the jury could not consider the bad acts as proof that the

defendant committed the charged conduct or as proof of his

criminal personality or bad character. The judge gave these

instructions before each sibling testified and again in the

8
final charge. Considering the judge's detailed reasoning, and

her repeated limiting instructions, we discern no abuse of

discretion. See Commonwealth v. Facella, 478 Mass. 393, 408-409

(2017).

For the first time on appeal, the defendant claims that the

victim's testimony about the defendant hitting her with a lamp

should also have been excluded as bad act evidence. Contrary to

the defendant's suggestion, this issue was not preserved at

trial. Although defense counsel objected to a question asking

the victim if the defendant was ever physically violent toward

her, he gave no basis for the objection and so did not preserve

the issue. See Commonwealth v. Moreno, 102 Mass. App. Ct. 321,

324 n.5 (2023). In any event, evidence about the defendant's

violence toward the victim was admissible for the nonpropensity

purpose of explaining why she did not report the sexual abuse

earlier. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394

(2006). And, in the context of the other evidence of the

defendant's repeated sexual assaults, the prejudicial effect of

this evidence was minimal. Thus, there was no substantial risk

of a miscarriage of justice.4

4 We reject the defendant's argument, to the extent made, that
the judge erred by allowing the victim to testify that DCF
placed her in foster care after she reported the rapes. While
the defendant characterizes this testimony as bad act evidence,
he fails to explain how the foster care placement was a bad act
committed by him.

9
2. First complaint. The defendant challenges three pieces

of evidence as violative of the first complaint doctrine:

(1) the victim's testimony that she disclosed the abuse to her

friend (the first complaint witness) by both telephone and text

message; (2) the victim's testimony that she disclosed the abuse

to her mother after disclosing to her friend; and (3) the

testimony of Emily Rivera Nunez, a forensic interviewer, that

the victim disclosed a prior, uncharged sexual assault when she

was five years old. The defendant did not object to the

victim's testimony about her disclosures to her friend and

mother, so we review to determine whether any error created a

substantial risk of a miscarriage of justice. See Commonwealth

v. McCoy, 456 Mass. 838, 845-846 (2010). The defendant objected

to Nunez's testimony, so we review for prejudicial error. See

Commonwealth v. Aviles, 461 Mass. 60, 72-73 (2011).

The victim's testimony did not give rise to a substantial

risk of a miscarriage of justice. The victim testified that she

first disclosed the abuse to her friend in June 2016; when asked

how she communicated with the friend, the victim replied, "It

was on, like, the phone. Texting." She then testified that she

"told [her] mom" while her friend was "on the line." We do not

agree with the defendant's characterization of this testimony as

establishing that the victim "originally told [the friend] via

text and then discussed it with her again later on the

10
telephone." The sequence of the disclosures, and the proximity

in time between them, are unclear from the testimony, which

again was unobjected to at trial.5 In any event, even assuming

that the disclosures constituted separate complaints, the

defendant has not shown that the testimony created a substantial

risk of a miscarriage of justice where it was brief and devoid

of any details about the sexual assaults. See Commonwealth v.

Roby, 462 Mass. 398, 409 (2012). Likewise, the defendant has

failed to demonstrate a substantial risk of a miscarriage of

justice arising from the judge's failure to give a limiting

instruction contemporaneously with the victim's testimony, see

Commonwealth v. King, 445 Mass. 217, 248 (2005), where the judge

gave the required instruction when the friend testified and in

the final charge.

We further conclude that the judge was within her

discretion in admitting Nunez's testimony. Nunez testified

that, when the victim was five years old, she disclosed during

an interview that the defendant had touched her vagina over her

5 The victim did not testify that she made sequential disclosures
to the friend until defense counsel elicited testimony to that
effect on cross-examination. Specifically, the victim testified
on cross-examination that she first sent a text message to her
friend telling her "what happened," "told [her] mom" that night,
and then called her friend. This testimony contradicted the
victim's earlier testimony that her friend was "on the line"
when the victim called her mother, as well as the friend's
testimony that she "was on the phone while [the victim] told her
mother."

11
clothing twice in one evening. If this disclosure constituted a

first complaint, even though the incident was not charged

conduct (an issue we do not decide), it was admissible under

Commonwealth v. Kebreau, 454 Mass. 287 (2009). There, the court

held that the first complaint doctrine "permits testimony from

two first complaint witnesses in circumstances . . . where each

witness testifies to disclosures made years apart concerning

different periods of time and escalating levels of abuse, which

constitute different and more serious criminal acts committed

over a lengthy period." Id. at 288-289. That is the case here

-- Nunez and the victim's friend testified to disclosures of

sexual abuses made almost twelve years apart and involving

escalating levels of abuse. If Nunez had not been permitted to

testify, "the jury could have questioned [the victim's]

credibility for enduring the abuse for years without any

complaint." Id. at 295. This would defeat one of the purposes

of the first complaint doctrine. See Commonwealth v. Dale, 86

Mass. App. Ct. 187, 191 (2014) (earlier disclosure, which victim

did not remember making, admissible because it advanced

doctrine's purpose of "refut[ing] the stereotype that silence is

evidence that the [victim] lacks credibility").

Furthermore, whether or not the disclosure to Nunez

constituted a first complaint, the judge was within her

discretion to admit it as a prior consistent statement of the

12
victim. See Commonwealth v. Arana, 453 Mass. 214, 220-221

(2009) (first complaint doctrine does not "prohibit the

admissibility of evidence that, while barred by that doctrine,

is otherwise independently admissible"). While prior consistent

statements are generally inadmissible, "an exception exists

where a trial judge makes a preliminary finding (1) that the

witness's in-court testimony is claimed to be the result of a

recent fabrication or contrivance . . . and (2) that the prior

consistent statement was made before the witness had a motive to

fabricate." Commonwealth v. Caruso, 476 Mass. 275, 284 (2017).

See also Mass. G. Evid. § 613(b). The findings need not be

explicit. See Caruso, supra. At sidebar before Nunez

testified, the judge stated that "the entire thrust of the

defense here . . . is fabrication" and that Nunez's testimony

about the victim's disclosure "rebuts the accusation of

fabrication, particularly given the fact that [the victim] did

not remember mentioning any sexual assault until years after it

had occurred." The judge thus determined that Nunez's testimony

was "relevant to the jury's determination of the weight that

they should give the evidence in light of the defense of

fabrication." This was within the judge's discretion. See id.

at 285 ("trial judges have broad discretion to determine whether

circumstances warrant the admission of prior consistent

statements to rebut a claim of a recent fabrication").

13
3. Closing argument. The defendant challenges various

portions of the prosecutor's closing argument as improper.

Because the defendant objected to each of the statements, we

review for prejudicial error. See Commonwealth v. Cole, 473

Mass. 317, 333 (2015).

The defendant first argues that the prosecutor improperly

vouched for the credibility of the witnesses and expressed her

own opinion about the evidence by repeatedly characterizing the

witnesses and evidence as "credible." We are not persuaded.

All of the challenged statements were based on the evidence and

did not constitute vouching, as none "express[ed] a personal

belief in the credibility of a witness, or indicate[d] that [the

prosecutor] ha[d] knowledge independent of the evidence before

the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).

In a similar vein, the defendant argues that the prosecutor

vouched for the victim's credibility by commenting on her

testimony regarding the makeshift lock on the bedroom door and

expressed her personal opinion about the lack of semen evidence

found on the victim's bedding. Regarding the lock, the

prosecutor stated, "This lock screams credibility. Who thinks

of this? A child. Scissors, ladies and gentlemen, to keep

somebody out of a room. No adult would come up with this."

Regarding the lack of semen evidence, the prosecutor stated,

"[S]ometimes, ladies and gentlemen, things drip. Things drip

14
off. But you know from the evidence that nothing dripped this

time. The fact that nothing dripped onto the sheets in no way

suggests to you that this didn't happen." The defendant does

not explain, nor do we see, how these statements expressed the

prosecutor's personal belief in the victim's credibility or

suggested that she had knowledge outside the evidence. See

Wilson, 427 Mass. at 352. We conclude instead that the

statements were permissible inferences from the evidence or, at

worst, "[e]nthusiastic rhetoric." Id. at 350, quoting

Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).

Finally, the defendant argues that the prosecutor appealed

to the jury's sympathies and inflamed their passions by

describing the demeanor of the victim and her sisters when they

testified. For example, the defendant challenges the

prosecutor's statements that the victim "started to cry when she

had to start talking about the time she was removed from her

mother" and that the "fear of being removed by DCF was real, it

was raw, and it's palpable." He also challenges statements such

as, "[t]hink about how [the sisters] testified, their demeanor

as they broke down on the stand and told you the horrific things

that this Defendant did to them when they were children." We do

not agree that these statements were improper. "A prosecutor

can address, in a closing argument, a witness's demeanor, motive

for testifying, and believability, provided that such remarks

15
are based on the evidence, or fair inferences drawn from it, and

are not based on the prosecutor's personal beliefs."

Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). The

prosecutor's statements here did not stray from the evidence and

permissibly "invited the jurors to draw a conclusion from their

own observations of [the witnesses] as [they] testified."

Commonwealth v. Pearce, 427 Mass. 642, 644 (1998). We conclude

that they "were within the bounds of proper argument." Id.

Judgments affirmed.

By the Court (Green, C.J.,
Shin & Hershfang, JJ.6),

Clerk

Entered: July 17, 2023.

6 The panelists are listed in order of seniority.

16