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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.
