Commonwealth v. William Ortiz, Jr. ( 2023 )

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-349
COMMONWEALTH
vs.
WILLIAM ORTIZ, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted after a jury trial of indecent assault and
battery, the defendant, William Ortiz, Jr., appeals. He argues
that the judge improperly precluded him from cross-examining the
victim about her alleged extramarital affair. He contends that
the victim was motivated to fabricate her allegation that he
sexually assaulted her to gain the sympathy of her cousin, who
is the mother of the defendant's child, so that the cousin would
not disclose the affair to the victim's husband. The judge
ruled that because the defendant had made no proffer of any
evidence of discord between the victim and her cousin about the
affair, testimony about the affair would be "too prejudicial."
Because the judge did not abuse her discretion in that ruling,
we affirm.
Background. Before trial, the Commonwealth moved to
preclude evidence of prior bad acts of the victim. Asked what
evidence he intended to introduce, defense counsel said that he
would elicit from the victim's cousin that the victim was
"jealous" of the cousin's relationship with the defendant and
fabricated her sexual assault allegation against the defendant
to "give herself some leverage" so that the cousin would not
tell the victim's husband about the affair. Questioned by the
judge, defense counsel acknowledged that there was no direct
evidence that the cousin had threatened to tell the victim's
husband about the affair, or that there was any animosity
between the victim and the cousin because of it. The judge
ruled that evidence that the victim was jealous of her cousin's
relationship with the defendant was relevant; as to evidence of
the alleged extramarital affair, absent any showing of animosity
between the victim and her cousin about it, that evidence was
not relevant and was unduly prejudicial. The defendant did not
raise the issue again during trial, either on cross-examination
of the victim or on direct examination of the cousin.
From the evidence at trial, the jury could have found as
follows. Although the romantic relationship between the
defendant and the victim's cousin had ended years before, they
remained "best friend[s]." In the autumn of 2017, the cousin
experienced a death in her family. On October 6, 2017, the
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victim received a text message from the defendant informing her
that her cousin needed "some company" to cheer her up and
suggesting that they both stop by at the cousin's home. The
victim went there and watched television and listened to music
with her cousin and the defendant for a few hours. The victim's
cousin said she was going to take a shower and left the room.
The defendant asked the victim if she wanted to dance. She
said no, but he was persistent. After the victim stood and
began dancing at some distance from the defendant, he pulled her
closer to him. When the defendant gestured to his penis, the
victim turned to leave the room. The defendant grabbed the
victim from behind in a one-armed bear hug. With his other hand
he dug at her crotch over her clothes, grabbing at her vagina
and her "bottom" with all his strength. Eventually the
defendant let go of the victim, and she fell backwards onto a
living-room chair. The defendant said excitedly, "do you know
how far I shoved my hands up?" The victim banged on the
bathroom door, went to the kitchen, and later went home.
The next morning, the victim was in pain and told her
husband. That morning the victim sent the defendant a text
message saying, "You owe me an apology for being a fucking pig.
You should be ashamed that was NOT funny." The defendant
replied, "Im sorry I thought the same thing this morning I
really didn't mean it u r my fam and I definitely don't want u
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mad at me so once again I'm so sorry and it will never happen
again."1
Called to testify by the defendant, the victim's cousin
testified that on October 6 the victim was drinking, "dirty
dancing," and making sexual comments. Later, the victim told
her cousin about what had happened. The cousin sent a text
message to the defendant asking, "Why didn't u tell me about
what happened with [the victim]." He replied, "Cause I was
disappointed with myself I was really drunk but that is no
excuse. And I didn't want you to be disappointed at me thats
the last thing I want. I apologize to her but didn't really get
to express how embarrassed and sorry I really was."
The defendant testified that he and the victim were dancing
the merengue and he was holding her waist. Then she told him
his hand was "a little low," and he realized it was on her hip.
He testified that he apologized to the victim then and again the
next morning, and in his text messages to her and her cousin he
meant that he was sorry and embarrassed for putting his hand on
the victim's hip while dancing.
Discussion. On appeal, the defendant argues that the judge
improperly precluded trial counsel from cross-examining the
victim about her alleged affair, and that limitation violated
1 Text messages are set forth as originally spelled and
punctuated.
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his Sixth Amendment and article 12 rights. To begin with, we
note that the defendant's present claim is different from the
one he raised before trial. There, he argued in response to the
Commonwealth's motion in limine that he should be permitted to
elicit testimony from the cousin about the victim's affair; he
did not assert that he should be permitted to cross-examine the
victim about it. On appeal, the defendant argues only that the
judge precluded him from cross-examining the victim, not that he
should have been permitted to elicit testimony about the affair
from the cousin. In those circumstances, we doubt that the
defendant has preserved for appellate review the claim he now
raises -- that his cross-examination of the victim was
curtailed. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016)
("An objection at the motion in limine stage will preserve a
defendant's appellate rights only if what is objectionable at
trial was specifically the subject of the motion in limine").
If the claim of error in the judge's evidentiary ruling was not
preserved for appellate review, we would review it "to determine
whether it created a substantial risk of a miscarriage of
justice," id. at 721-722; if it was preserved, we would review
it for prejudicial error. We need not definitively determine
which standard applies, because there was no error in the
judge's ruling.
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Evidence is relevant if "it has any tendency to make a fact
more or less probable without the evidence." Mass. G. Evid.
§ 401 (2022). Even if evidence is relevant, a judge may exclude
it "if its probative value is substantially outweighed by a
danger of . . . unfair prejudice." Mass. G. Evid. § 403 (2022).
See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014).
As mentioned above, the judge ruled, "I don't think the fact
that the cousin knew about an extra-marital affair would be
relevant at trial to show the alleged victim's bias or motive to
lie without some type of proffer from the defense that there had
been some prior . . . animosity between the parties about the
fact that the alleged victim knew that the cousin knew . . . I
just think it's too prejudicial in this case."
In Commonwealth v. Parent, 465 Mass. 395, 404 (2013), the
defendant sought to elicit testimony from his fiancée that, on
the evening that the defendant was alleged to have committed
indecent assault and battery on the victim, the fiancée
overheard the victim say to someone on the telephone that she
would provide oral sex to that person. The Supreme Judicial
Court rejected the defendant's argument that evidence of the
victim's statement was admissible because she may have feared
that the defendant or his fiancée would tell her parents about
it, and therefore had a motive to fabricate her allegation that
the defendant sexually assaulted her "as a sort of 'preemptive
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strike.'" Id. The court concluded that "our common law grants
a judge discretion to exclude such evidence where its primary
purpose is to damage an alleged victim's credibility in the eyes
of the jury by suggesting promiscuity, and the risk of unfair
prejudice outweighs its probative weight." Id. at 405. The
court noted that absent any evidence that the victim feared that
the fiancée would reveal that information to her parents, there
was "no reason to infer that any reasonable person . . . would
think that a fabricated allegation of indecent assault and
battery against the defendant would deter or prevent the
defendant's fiancée" from disclosing the victim's statement.
Id. at 406. See Mass. G. Evid. § 611(b)(2) (2022).
Here, as in Parent, the judge did not abuse her discretion
in ruling that absent any evidence that the victim feared that
her cousin would disclose the alleged extramarital affair, the
proffered evidence was not relevant, and it was unduly
prejudicial. See also Commonwealth v. Chicas, 481 Mass. 316,
319-320 (2019) (judge properly precluded defense cross-
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examination of witnesses about citizenship status unless they
had discussed status with police, making it relevant to bias).
Judgment affirmed.
By the Court (Blake, Grant &
Smyth, JJ.2),
Clerk
Entered: April 26, 2023.
2 The panelists are listed in order of seniority.
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