Commonwealth v. Pena ( 2019 )


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    18-P-687                                                 Appeals Court
    COMMONWEALTH   vs.   JORGE PENA.
    No. 18-P-687.
    Suffolk.       April 8, 2019. - December 5, 2019.
    Present:     Vuono, Wolohojian, & Hand, JJ.
    Rape.  Unnatural Sexual Intercourse. Constitutional Law,
    Confrontation of witnesses. Evidence, First complaint.
    Practice, Criminal, Confrontation of witnesses, Argument by
    prosecutor, Instructions to jury.
    Indictments found and returned in the Superior Court
    Department on March 9, 2016.
    The cases were tried before Edward P. Leibensperger, J.
    Joseph Visone for the defendant.
    Amanda Teo, Assistant District Attorney (Sarah McEvoy,
    Assistant District Attorney, also present) for the Commonwealth.
    VUONO, J.   A jury in the Superior Court convicted the
    defendant on two indictments charging him with rape of a child
    aggravated by age difference.1 The victim, whom we shall call
    1 The defendant also was convicted of two counts of indecent
    assault and battery on a child under the age of fourteen. The
    2
    Alice, is the daughter of the woman with whom the defendant was
    living.   One indictment charged rape by natural sexual
    intercourse.   The other charged rape by unnatural sexual
    intercourse.
    The defendant raises three issues on appeal.        First, he
    contends that the judge erred by admitting testimony under the
    first complaint doctrine from a witness who was not the first
    person to hear of the rapes.    Second, the defendant claims the
    evidence was insufficient to support his conviction on the
    indictment charging unnatural sexual intercourse because the
    Commonwealth failed to prove the element of penetration.        That
    indictment alleged that the defendant "did unlawfully have
    unnatural sexual intercourse with and abuse [Alice] by
    penetrating the mouth of [Alice] with his ejaculate."        Third, he
    asserts the prosecutor improperly vouched for Alice's
    credibility during her closing argument.     We affirm.
    1.    Background.   a.   The Commonwealth's case.     We summarize
    the evidence presented in the Commonwealth's case-in-chief in
    the light most favorable to the Commonwealth.    See Commonwealth
    v. Latimore, 
    378 Mass. 671
    , 677 (1979).     Alice was living in an
    apartment in the Dorchester section of Boston with her mother
    and her three sisters when the defendant began to sexually abuse
    judge allowed the defendant's motion for a required finding of
    not guilty on a third count charging this offense.
    3
    her.   Alice was eleven years old at the time.     The family was
    under significant stress because Alice's mother was ill and not
    able to work, Alice's thirteen year old sister was diagnosed
    with a neurodegenerative disorder, and Alice's younger sisters,
    five year old twins, needed supervision and care.     The
    defendant, who had been involved in a romantic relationship with
    Alice's mother for about ten years, was the family's main source
    of financial support.
    Alice testified that the defendant sexually abused her on
    three occasions while she was in the sixth grade.     On the first
    occasion, Alice found herself home alone with the defendant and
    her older sister one day after school.    At the time, the sister
    could not walk without assistance.    The defendant took Alice to
    the bedroom he shared with Alice's mother and began to fondle
    her.   He touched Alice's breasts and kissed her on the lips.
    The second incident started the same way.   Alice and her
    older sister were home alone with the defendant; the defendant
    took Alice into the bedroom where he touched her breasts and
    kissed her.   This time, however, the defendant proceeded to
    remove Alice's pants and underwear and "put" her on the bed.        He
    then raped Alice by inserting his penis into her vagina.      Next,
    he told Alice to get onto the floor on her knees and open her
    mouth.   When she did so, he ejaculated into her mouth.     Alice
    testified that the defendant "put [ejaculate] in my mouth."         She
    4
    then "threw up [the ejaculate] in the bathroom."     The defendant
    told Alice not to tell anyone and suggested that the family
    would be ashamed of her.    Alice felt guilty and kept silent.
    The third incident occurred when Alice's mother and older
    sister were in California, where the older sister was receiving
    experimental medical treatment, and Alice and her younger
    sisters were staying with an aunt.    One of the sisters became
    ill and needed medicine from home.    The defendant drove Alice
    from her aunt's home to the family's apartment to retrieve the
    medicine.   While the defendant and Alice were alone in the
    apartment, the defendant pulled Alice into the mother's bedroom
    and had sexual intercourse with her.2    This time the defendant
    ejaculated onto his hand.   The defendant told Alice not to tell
    anyone and instructed her to tell her aunt that they were late
    due to traffic and because they had trouble opening the door of
    the apartment.   Alice followed the defendant's instructions.
    Alice continued to remain silent about the sexual abuse
    until the end of the school year when she met her mother's
    younger brother, Manuel Valdez.     Valdez had just moved to Boston
    and met Alice for the first time.    Alice sent Valdez a number of
    graphic text messages telling him that she wanted "to have sex"
    with him.   She also wrote that she wanted to "suck him off,"
    2 The defendant was not charged with rape in connection with
    this incident for reasons that are not apparent in the record.
    5
    "twerk in front of him," "do doggie," and "do it in the
    bathroom."     Valdez was taken aback and asked Alice how she knew
    about such things.     Alice responded with a text message stating
    that she "had sex" with the defendant.      Valdez sought advice
    from his brother, Cristino Jimenez Medina,3 and showed him the
    text messages.    At some point, Alice's mother was told about the
    text messages and Alice's accusation.      She confronted Alice.
    Initially, Alice denied what had happened between her and the
    defendant, but she subsequently told her mother about the abuse.
    Alice's mother was not supportive.      She told Alice to lie
    to investigators from the Department of Children and Families
    when they came to the home to interview her.     Alice's mother
    said that if Alice disclosed the abuse, her sisters would be
    taken away.    At her mother's direction, Alice also denied the
    abuse to health care providers at the Bowdoin Street Health
    Center.
    b.     The defendant's case.   The defendant mounted a vigorous
    defense.    He testified on his own behalf and denied the
    allegations.     The defense theory was that Alice was not
    credible.    To this end, the defendant introduced testimony from
    numerous witnesses to demonstrate inconsistencies in Alice's
    3 Medina is identified as "Cristino Jimenez" in the
    transcript. We therefore refer to him as "Jimenez" to avoid
    confusion.
    6
    testimony and presented deposition testimony from Alice's
    mother, who claimed that the defendant was rarely home alone
    with the girls.4    He also presented evidence through testimony
    and photographs that Alice was not truthful when she testified
    his penis looked "normal" because he had a "domino chip"
    embedded subcutaneously into his penis and it was noticeable.
    Defense counsel argued in closing that Alice felt overwhelmed by
    her family's situation and fabricated the abuse in order to gain
    attention.     Defense counsel also argued that an additional
    motive for Alice to lie was to avoid admitting that she was
    familiar with sexual activity because she had watched
    pornography.
    2.    Discussion.   a.   First complaint testimony.   As
    previously noted, Alice first disclosed the defendant's sexual
    abuse in a series of text messages she sent to her uncle,
    Valdez, who, in turn, showed the messages to his brother,
    Jimenez.    By the time of trial, the text messages no longer
    existed and Valdez was unavailable to testify because he was
    incarcerated out of state.     These circumstances led the
    Commonwealth to file a motion in limine seeking permission to
    call Jimenez as a substitute first complaint witness.        At a
    nonevidentiary hearing on the motion, before the judge who
    4   Alice's mother was too ill to attend the trial.
    7
    presided at trial, defense counsel stated that he did not object
    as long as Jimenez testified about all the text messages,
    including those in which Alice had made sexually provocative
    comments.5   The prosecutor agreed to this condition and the judge
    allowed the motion.   Jimenez subsequently testified at trial
    without objection.
    The defendant now argues that the judge should not have
    permitted Jimenez to testify as a substitute first complaint
    witness for two reasons:   first, the defendant claims that the
    testimony was inadmissible hearsay; and second, he argues that
    his right to confront witnesses against him, under the Sixth
    Amendment to the United States Constitution, was violated
    because he could not cross-examine Valdez.   As neither claim was
    preserved at trial, we consider the defendant's arguments under
    the substantial risk of miscarriage of justice standard.
    Commonwealth v. Alphas, 
    430 Mass. 8
    , 13 (1999).   Under that
    standard, an error creates a substantial risk of a miscarriage
    of justice "unless we are persuaded that it did not 'materially
    influence[]' the guilty verdict."   
    Id., quoting Commonwealth
    v.
    Freeman, 
    352 Mass. 556
    , 564 (1967).   Applying this standard to
    5 We note that some of the text messages were translated
    from English to Spanish by Valdez when he showed the messages to
    Jimenez. The defendant has not made a meaningful challenge to
    the accuracy of those translations.
    8
    this case, we conclude that neither alleged error warrants
    vacating the convictions.
    To begin with, the rule against hearsay was not implicated
    because first complaint evidence may be considered only for
    specific limited purposes and not for the truth of the matter
    asserted, namely, that the assault in fact occurred.    See
    Commonwealth v. King, 
    445 Mass. 217
    , 218-219 (2005), cert.
    denied, 
    546 U.S. 1216
    (2006); Mass. G. Evid. § 413(a) (2019).
    Furthermore, the judge acted within his discretion when, after
    determining that Valdez was not available, the judge permitted
    Jimenez to testify as the substitute first complaint witness.
    See King, supra at 243-244 ("In limited circumstances, a judge
    may permit the testimony of a complaint witness other than, and
    in lieu of, the very 'first' complaint witness.   For example,
    where the first person told of the alleged assault is
    unavailable, . . . the judge may exercise discretion in allowing
    one other complaint witness to testify").    See also Commonwealth
    v. Murungu, 
    450 Mass. 441
    , 445-446 (2008).   Here, the judge
    properly informed the jury that Jimenez was testifying instead
    of Valdez because Valdez was not available, and the judge
    instructed them, in accordance with King, about the limited
    purpose of first complaint testimony.   He explained that the
    testimony was admitted only to assist the jury in determining
    whether to credit Alice's testimony about the sexual assaults
    9
    and could not be used as evidence that the assaults occurred.
    This instruction was given when Alice testified about the text
    messages and was repeated during Jimenez's testimony and in the
    judge's final instructions.    In light of these circumstances, we
    discern no merit in the defendant's argument that the admission
    of Jimenez's testimony was an error that created a substantial
    risk of a miscarriage of justice.
    The defendant's claim that he is entitled to a new trial
    because he did not have the opportunity to cross-examine Valdez
    also fails.   First, as we have noted, the defendant waived his
    right to cross-examine Valdez by agreeing to the Commonwealth's
    request to have Jimenez testify as the substitute first
    complaint witness.   This was a wise tactical decision.   The
    defendant clearly benefited from Valdez's absence.    Jimenez
    either was not willing or could not provide the details of
    Alice's disclosure of sexual abuse when he was asked to do so by
    the prosecutor, but he relayed in detail Alice's inappropriate
    comments soliciting sexual activity with Valdez.    We note that,
    in her closing argument, defense counsel relied heavily on
    Alice's graphic invitation to engage in sexual acts with Valdez
    in order to discredit Alice.   In addition, the defendant was not
    totally deprived of his right to confront witnesses against him.
    He had the opportunity to cross-examine both Alice and Jimenez.
    Thus, "the purpose and value of confrontation" were sufficiently
    10
    served.   Commonwealth v. Amirault, 
    424 Mass. 618
    , 651-652
    (1997).   Consequently, we are confident that even if there was
    error, it did not materially influence the guilty verdict.      See
    
    Alphas, 430 Mass. at 13
    .6
    b.   Sufficiency of the evidence of unnatural sexual
    intercourse.   The defendant argues the evidence was insufficient
    to sustain a conviction on the indictment charging him with rape
    by unnatural sexual intercourse because the Commonwealth failed
    to prove the element of penetration.   The defendant does not
    dispute that the jury were warranted in finding beyond a
    reasonable doubt that his ejaculate entered Alice's mouth.   He
    claims, however, that such conduct does not establish
    penetration without evidence of "skin to skin" contact.
    The defendant's argument has both legal and factual
    underpinnings.   We first address his legal argument, with which
    we disagree, that the conduct at issue, as a matter of law, does
    not constitute the crime of rape.
    While it is true that convictions of rape are frequently
    proven with evidence demonstrating some degree of penetration
    that involves skin-to-skin contact between the perpetrator and
    6 The case might stand on a different footing if there was
    an allegation that the text messages were inaccurately conveyed
    from Valdez to Jimenez, but there was no such allegation. In
    light of the surrounding circumstances, including that Alice's
    testimony and Jimenez's testimony were largely similar, we need
    not discuss this issue further.
    11
    the victim, our cases do not require such evidence to prove the
    element of penetration in the context of unnatural sexual
    intercourse.
    Recently, in Commonwealth v. Prado, 
    94 Mass. App. Ct. 253
    ,
    261 (2018), we held that a defendant who forced the victim at
    gunpoint to penetrate her vagina with her fingers was guilty of
    rape.   As we explained in that case, "the scope of the term
    'unnatural sexual intercourse' is broad, and . . . the
    Legislature necessarily intended to treat modes of sexual
    connection other than common law rape as equally serious
    invasions of personal integrity" (quotation and citation
    omitted).   
    Id. at 257.
      "[O]ur precedent recognizes the myriad
    ways by which rape is perpetrated, even without physical contact
    by the defendant."    
    Id. at 258.
      "The common thread in these
    cases is some form of forced penetration compelled by the
    defendant, and not a literal touching by the defendant."       
    Id. The essence
    of the crime of rape is "an intrusion into another's
    (i.e., the victim's) [body], by an object . . . committed
    through the force of the defendant."     
    Id. We held
    in Prado that
    the defendant's choice to penetrate the victim with her own
    fingers did not render the act a lesser crime on the defendant's
    part.   
    Id. at 259.
      We have held the same in cases where a
    defendant forced a third party to penetrate the victim or where
    the penetration was perpetrated through the use of a foreign
    12
    object.    See Commonwealth v. Cifizzari, 
    397 Mass. 560
    , 577
    (1986) ("rape committed by unnatural sexual intercourse
    encompasses penetration by the use of inanimate objects," here,
    mop handle); Commonwealth v. Nuby, 
    32 Mass. App. Ct. 360
    , 362
    (1992) (defendant forced third party to penetrate victim's
    vagina with his tongue and fingers).    See also Commonwealth v.
    Jansen, 
    459 Mass. 21
    , 29 (2011) (penetration could be inferred
    from evidence of hair tie found in victim's vagina because hair
    tie tested positive for defendant's deoxyribonucleic acid);
    Commonwealth v. Guy, 
    24 Mass. App. Ct. 783
    , 785-787 (1987)
    (defendants guilty of rape for forcing victim to perform
    cunnilingus on two consenting women).
    Here, the evidence was that during the course of a sexual
    assault the defendant caused his ejaculate to enter Alice's
    mouth.    Thus, there was physical penetration between the
    defendant and Alice.    The deposit of ejaculate into the mouth of
    a victim is a "mode[] of sexual connection" that involves a
    "serious invasion[] of personal integrity."    Prado, 94 Mass.
    App. Ct. at 257.   In our view, such conduct is no less
    physically intrusive than committing rape by forcing a victim to
    penetrate her vagina with her fingers or by using a foreign
    object to penetrate the victim.   See 
    id. at 258;
    Nuby, 32 Mass.
    App. Ct. at 362; 
    Guy, 24 Mass. App. Ct. at 787
    .    See also
    
    Jansen, 459 Mass. at 29
    ; 
    Cifizzari, 397 Mass. at 576-578
    .      We
    13
    therefore conclude, as a matter of law, that the defendant's
    conduct falls within the broad definition of unnatural sexual
    intercourse.
    The defendant also argues that there was insufficient
    evidence of penetration given the absence of direct evidence of
    skin-to-skin contact between himself and Alice.   But direct
    evidence of skin-to-skin contact is not required; "[p]enetration
    can be inferred from circumstantial evidence."    Commonwealth v.
    Fowler, 
    431 Mass. 30
    , 33 (2000).7   The Commonwealth maintains
    that a rational juror could infer beyond a reasonable doubt that
    there was contact between the defendant's penis and Alice's
    mouth when the defendant ejaculated.   Such contact, the
    Commonwealth argues, was sufficient to prove the element of
    penetration.   See Commonwealth v. Enimpah, 
    81 Mass. App. Ct. 657
    , 660-661 (2012) (to meet its burden of proof for offense of
    rape, Commonwealth must present evidence of penetration of
    victim, regardless of degree).   Additionally, the Commonwealth
    notes that our case law recognizes that "when young children
    testify about sexual assault, their description of penetration
    need not be precise."   
    King, 445 Mass. at 224
    .   Given our
    conclusion above that the facts constituted a mode of sexual
    7 The Commonwealth can prove its case by direct evidence or
    solely by circumstantial evidence as long as the inferences
    drawn from the evidence are "reasonable and possible" (citation
    omitted). Commonwealth v. Robertson, 
    408 Mass. 747
    , 755 (1990).
    14
    connection, it is not necessary for us to decide whether the
    circumstantial evidence here, taken in the light most favorable
    to the Commonwealth, would permit an inference of skin-to-skin
    contact and, as a result, established penetration.
    c.   Prosecutor's closing argument.   During its case-in-
    chief, the Commonwealth presented testimony from Dr. Stephanie
    Block, an expert on child sexual abuse, to assist the jury in
    understanding certain aspects of Alice's behavior.   Block
    testified about the general behavioral characteristics common in
    sexually abused children.   In her closing argument, the
    prosecutor urged the jury to consider Block's testimony in
    evaluating Alice's credibility:
    "[T]hink about Dr. Stephanie [Block] who testified she
    knows nothing about this case. . . . Her testimony
    was to inform you, to help you understand the research
    and the way in which child victims of sexual abuse
    disclose or delay or recant and the factors that . . .
    the research has shown matters to child victims of
    sexual abuse. And I'd ask you to think about what she
    told you as you consider the Commonwealth's case, as
    you evaluate the credibility of witnesses. . . . She
    gave you a lot of information about it, and I'd ask
    you to keep that in the back of your mind as you
    evaluate the Commonwealth's case."
    Defense counsel objected to these remarks, claiming that the
    prosecutor had impermissibly vouched for Alice's credibility.
    We therefore review the defendant's claim under the prejudicial
    error standard, see Commonwealth v. Flebotte, 
    417 Mass. 348
    , 353
    (1994), and "evaluate whether the defendant was prejudiced
    15
    thereby, considering the remarks in the context of the entire
    argument, the trial testimony, and the judge's instructions to
    the jury."   Commonwealth v. Beaudry, 
    445 Mass. 577
    , 584 (2005).
    The prosecutor's comments were well within the bounds of
    proper argument and did not constitute error.    See Mass. G.
    Evid. § 1113(b)(2) (2019).   The prosecutor did not suggest that
    she or Block had personal knowledge or a personal belief that
    Alice was telling the truth, nor did the prosecutor misstate
    Block's testimony or make an appeal for sympathy.    To the
    contrary, the prosecutor appropriately asked the jury to
    consider Block's testimony to the extent it might help them in
    assessing Alice's credibility.   Even if there was error, we
    conclude that it was not prejudicial in light of the judge's
    forceful instruction to the jury that an expert witness should
    be treated like any other witness, and in light of the judge's
    emphasis on the jury's role as the finders of fact.    As the
    judge put it, "You must remember expert witnesses do not decide
    cases.   Juries do."   The judge also instructed the jury that
    closing arguments are not evidence.
    Judgments affirmed.