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12-P-1909                                              Appeals Court

                    COMMONWEALTH   vs.   ANDRE DALE.



                            No. 12-P-1909.

        Suffolk.       February 7, 2014. - August 25, 2014.

            Present:   Trainor, Katzmann, & Hanlon, JJ.


Indecent Assault and Battery. Evidence, First complaint,
     Relevancy and materiality, Cross-examination, Photograph.
     Child Abuse.



     Indictment found and returned in the Superior Court
Department on November 17, 2009.

     The case was tried before Patrick F. Brady, J.


     David D. Nielson for the defendant.
     Sarah H. Montgomery, Assistant District Attorney, for the
Commonwealth.


     KATZMANN, J.    A Superior Court jury convicted the defendant

of indecent assault and battery on a child under fourteen years

of age, G. L. c. 265, § 13B, as a lesser included offense of
                                                                     2


rape of a child under sixteen years of age, G. L. c. 265, § 23. 1

The principal issue in this appeal is the admissibility of first

complaint testimony where the victim has no memory of the

complaint.   In light of the primary purpose of first complaint

evidence, we determine that such testimony is admissible.     The

defendant also contests the admission of testimony of a

subsequent complaint, of testimony pertaining to the victim's

bodily functions, and of photographic evidence showing injuries

to the victim and her brother.    We affirm.

     1.   Background.   We summarize the facts as a jury could

reasonably have found, reserving certain details for discussion

with the specific issues raised.    The series of incidents

underlying the conviction began when the victim was seven or

eight years old.   The incidents occurred when the victim, S.B.,

and her older brother, M.B., lived with their great aunt, Tina

Dale (Tina), and great uncle, Fred Dale (Fred). 2   The defendant

is the victim's cousin, the son of Tina and Fred; the victim and

her brother referred to him as "Uncle Eddie."    During the period

of the assaults, the defendant lived in the same house as the



     1
       The jury acquitted the defendant on two indictments
charging indecent assault and battery, G. L. c. 265, § 13B,
arising out of separate acts that pertained to the same victim.
     2
       S.B. and M.B. moved into the Dales' home when their mother
was murdered when S.B. was ten months old.
                                                                    3


victim and had a room of his own.    He only stayed in the house

several nights a week.

     The victim testified that, on multiple occasions over the

course of several years, the defendant would sexually assault

her in the Dales' residence.    She testified that the first

incident began when the defendant called her into his room after

she was in bed.   He told her that he was "checking for scars

"[to see] if everything was okay," and he pulled down her

underwear and examined her visually.    Because the victim was

subject to a beating that day from Tina, the victim understood

the defendant to be checking to see whether the beating had

caused any bruises. 3   After the victim returned to the room in

which she was sleeping, the defendant called her back into his

room, and he told her to lie down on a towel on the floor and to

pull down her underwear.    The defendant pulled up the victim's

pajama gown, opened his robe, and pulled out his penis.     Lying

on top of the victim, he placed his penis against her vagina,

and he "peed on her." 4   She testified that this pattern was


     3
       While the victim and M.B. were growing up, Tina and Fred
physically abused them, using beatings to discipline them for
breaking house rules. After such beatings, the defendant would
comfort the victim and M.B., giving each of them a hug and
"say[ing] how sorry he was."
     4
       The victim testified that at the time of the assault, when
she was approximately seven or eight years old, she believed
that the defendant was "peeing" on her. After she had grown
                                                                    4


repeated over the course of multiple assaults, 5 ending only when

the defendant moved out of the house. 6   She testified that the

incidents generally occurred in the defendant's room, which was

across the hall from the room where she often slept during the

time of the assaults.   She also testified that a similar

incident happened at least once in a different room of the

house.

     M.B. testified as the first complaint witness.    He

testified that S.B. had told him -- at the time the incidents

were ongoing -- that the defendant had touched her and had "peed

on her or something like that."   M.B. did not understand the

meaning of this brief account as he was seven or eight years old

at the time.   But M.B. told his sister, in response, "that

doesn't sound right."   He testified that his sister looked



older and received sex education, she came to believe that he
had ejaculated on her rather than urinated on her. The victim
also testified that he had forced her to suck his nipple during
the initial incident, as well as during the subsequent
incidents. The jury acquitted the defendant of a charge of
indecent assault and battery with respect to the victim sucking
the defendant's nipple.
     5
       The victim testified in detail to three occasions on which
an assault occurred. She also testified that "[i]t would happen
pretty much when he was in the house," referring to the times
that the defendant slept in the house during the period that he
maintained a room in the house.
     6
       It is unclear exactly when the defendant moved out of the
house, but it was prior to May, 2003, when the victim and her
brother themselves moved out.
                                                                    5


scared as she told him about the incident.    M.B. did not report

the abuse or repeat the conversation to others.    S.B. testified

that she did not remember telling M.B. about the assaults during

the time that they were occurring.    M.B. also testified to a

time, a year or two after her report to him about the assault,

when his sister had told him that her urine was bloody and had

showed him the bloody results of her urination.    He also

testified that, in the aftermath of this disclosure, she

repeatedly told him that she experienced a burning sensation

when she urinated. 7

     S.B. and M.B. were removed from the Dales' house, in May,

2003, when S.B. was ten and one-half years old, because of

physical abuse by the Dales.   Both children testified to

repeated abuse by Tina and Fred.     The Commonwealth introduced

photographs of M.B. and S.B. showing injuries to support the

testimony with respect to physical abuse.     The admission of

these photographs, and the Commonwealth's use of them, is

contested on appeal.   Shortly after the report of the physical

abuse, both siblings were placed in foster care with Orlinda




     7
       S.B. also testified that she told her brother about the
burning sensation during urination and that she showed him her
bloody urine.
                                                                         6


Jones. 8   S.B. testified that she told Jones about the sexual

abuse four or five years after moving in with her. 9

     2.    Discussion.   a.     First complaint testimony.   The first

complaint doctrine permits a judge to admit testimony from the

recipient of a victim's initial report of sexual assault.

Commonwealth v. King, 445 Mass. 217, 218-219, 241-248 (2005),

cert. denied, 546 U.S. 1216 (2006).        See generally Mass.

G. Evid. § 413 (2013).        The first complaint witness may also

testify to the circumstances surrounding the complaint,

including "observations of the complainant during the complaint;

the events or conversations that culminated in the complaint;

the timing of the complaint; and other relevant conditions that

might help a jury assess the [complainant's] veracity . . . ."

Commonwealth v. King, supra at 246.        We review a judge's

decision to admit first complaint evidence for abuse of

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

("The judge who is evaluating the facts of a particular case is

in the best position to determine the scope of admissible

evidence, keeping in mind the underlying goals of the first

complaint doctrine").

     8
       S.B. continues to live with Jones as her foster child.
M.B. moved out within one year of the placement with Jones and
was placed in another foster home.
     9
       Jones testified at trial. She did not testify to S.B.'s
report of sexual abuse by the defendant.
                                                                      7


     i.   Complaint to M.B.   The defendant argues that M.B.'s

testimony with respect to S.B.'s initial report to him of the

sexual assault is inadmissible because S.B. had no memory of the

complaint.   Reviewing the purpose of first complaint testimony,

we conclude that a victim need not remember a complaint to allow

testimony by a first complaint witness.    The victim's memory of

the complaint goes to the weight of the evidence, not to its

admissibility.

     Together with our understanding of the purpose of the first

complaint doctrine, our decision in Commonwealth v. Wallace, 76

Mass. App. Ct. 411 (2010), leads us to conclude that the first

complaint testimony is admissible in this case.    In Wallace, a

witness testified that the victim -- his sibling, as in our case

-- had told him that the defendant had "engaged in inappropriate

sex with [the victim]."   Id. at 415.   But the victim only

remembered obliquely referring to the encounter in the

conversation with his brother, the witness. 10   Ibid.   This court

held that the judge had not abused her discretion in allowing

the testimony, concluding there that the discrepancies in the

narratives "[went] to the weight of the evidence, not its

     10
       The victim had previously told a police interviewer that
he did not remember any conversation with the witness. Wallace,
supra at 415. Because the victim later remembered having a
conversation with the witness, Wallace is not identical to our
case. We conclude that this is a distinction without a
difference with respect to the question of admissibility.
                                                                     8


admissibility."   Ibid.   The defendant argues that Wallace is not

controlling.   He understands the holding of Wallace to be

limited to situations where both the victim and the recipient of

a complaint remember the complaint, but where their memories

differ with respect to the complaint.   We disagree.   We read

Wallace to stand for the broader principle that any discrepancy

between the memory of a victim and the person receiving a

complaint -- including a victim's failure to remember making the

complaint -- goes to the weight of the evidence rather than to

its admissibility.

     This reading is consistent with -- and animates -- the

purpose of first complaint testimony set out in Commonwealth v.

King, supra.   The main goals of the first complaint doctrine

are, first, to refute the stereotype that silence is evidence

that the complainant lacks credibility and, second, to provide

to the jury as complete an account as possible of how the

accusation of sexual assault arose.   Commonwealth v. Aviles, 461

Mass. at 72, citing Commonwealth v. King, supra at 243, 247.

The first goal is critical here, where the thrust of the defense

was that the victim was not credible, and that she fabricated

the allegations in response to outside events at a later time.

M.B.'s testimony that his sister reported the abuse to him while

the abuse was ongoing rebuts the accusation of fabrication,
                                                                    9


particularly given that S.B. could not recall mentioning the

sexual abuse to anyone until several years after it occurred. 11

     The fact that S.B. did not remember the report to M.B., and

that the first complaint that she remembered making was to

Jones, several years later, was before the jury.   The

discrepancy between M.B.'s testimony and S.B.'s testimony

"provided fodder for cross-examination."   Commonwealth v.

Wallace, supra at 415.   The circumstances of the first complaint

to M.B. and the subsequent report to Jones are relevant for the

jury's determination of the weight of the evidence, particularly

in light of the defense's theory of fabrication.   But they do

not preclude the admission of such evidence. 12



     11
       The judge did not abuse his discretion in determining
that the content of the report to M.B. qualified as a complaint.
See Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) (a report
"does not constitute a complaint, when, for example, the victim
expresses to that person unhappiness, upset or other such
feelings, but does not actually state that she has been sexually
assaulted").
     12
       In King, the Supreme Judicial Court concluded that "[t]he
complainant may likewise testify to the details of the first
complaint (i.e., what she told the first complaint witness), as
well as why the complaint was made at that particular time"
(emphasis added). Commonwealth v. King, supra at 219. Notably,
King did not require that the complainant herself testify as to
the circumstances or the content of the complaint. First
complaint testimony is only admissible to "assist the jury in
determining whether to credit the complainant's testimony about
the alleged sexual assault." Ibid. But that only requires that
the complainant testify about the facts of the underlying
assault, not that she testify to the complaint itself.
                                                                   10


     "The [first] complaint doctrine seeks to balance the

interest of a complainant (who, as here, may be still a child)

in having her credibility fairly judged on the specific facts of

the case rather than unfairly by misguided stereotypical

thinking, with that of a defendant in reserving a trial that is

free from irrelevant and potentially prejudicial testimony."

Commonwealth v. Arana, 453 Mass. 214, 228 (2009).    The trial

judge achieved exactly that balance in admitting the testimony

from M.B., allowing the jury to judge the credibility of S.B.

and her testimony by the "specific facts of the case," ibid.,

rather than by stereotypes.   Cf. Commonwealth v. King, supra at

244 (citations omitted) ("[T]he doctrine gives the fact finder

the maximum amount of information with which to assess the

credibility of the . . . complaint evidence as well as the

overall credibility of the victim").     We conclude that the judge

did not abuse his discretion in admitting first complaint

testimony from M.B.

     ii.   Complaint to Orlinda Jones.   The defendant argues that

the judge impermissibly admitted testimony from the victim with

respect to the complaint about the sexual abuse to her foster

parent, Jones, several years after moving in with her that
                                                                    11


effectively constituted a second first complaint. 13   We disagree.

We reject the suggestion that this was "back-door first

complaint testimony."   See Commonwealth v. Kebreau, 454 Mass.

287, 288 (2009).   First, the defendant opened the front door to

S.B.'s testimony with respect to the complaint to Jones.

Second, the Commonwealth limited Jones's testimony to subjects

other than the complaint, and S.B.'s testimony did not transform

Jones into a second first complaint witness.

     This is not a case like Commonwealth v. Murungu, 450 Mass.

441 (2008), where the judge impermissibly admitted the testimony

of two first complaint witnesses -- the recipient of an initial

complaint and the recipient of a subsequent complaint.    Id. at

447-448.   As discussed supra, the judge here properly admitted

M.B.'s testimony regarding the victim's complaint to him.    S.B.

testified to the circumstances and content of the complaint to

Jones, but only after the defendant opened the door to that

testimony on cross-examination by seeking to establish that

Jones was the first person that the defendant told about the

sexual abuse.   Indeed, when the defendant began this line of


     13
       The Commonwealth moved in limine to present two first
complaint witnesses, M.B. and Jones. The judge reserved ruling
on the motion until trial. At trial, the Commonwealth did not
attempt to present Jones as a first complaint witness.
Commonwealth v. Kebreau, 454 Mass. 287 (2009), is inapposite.
See id. at 296 (outlining circumstances justifying two first
complaint witnesses).
                                                                    12


questioning, the trial judge immediately noted that the

defendant's questioning of S.B. would open the door to

questioning by the prosecution regarding this complaint, and

defense counsel confirmed that he wished to do so.      There was no

impropriety to S.B.'s testimony given that the defendant had

already broached the subject of the complaint to Jones.      See

Commonwealth v. Kebreau, 454 Mass. at 299 ("[T]his testimony was

allowed not as first complaint testimony but in response to the

defendant's cross-examination of [the witness]").      See also

Commonwealth v. Arana, 453 Mass. at 220-221, citing Commonwealth

v. Montanez, 439 Mass. 441, 456 (2003) (Sosman, J., concurring)

(first complaint doctrine does not bar admission of

independently admissible evidence).

     b.   Other claims.   i.   Physical symptoms.   The defendant

argues that the testimony of S.B. and of M.B. about S.B.'s pain

during urination and about the blood in her urine was not

properly admitted.   He argues first that the evidence was not

relevant, and second that it was unduly prejudicial because it

generated sympathy for the victim. 14   The defendant did not

object to these statements at trial, and we review for a



     14
       While the defendant refers to these statements as
inadmissible hearsay in a heading in his brief, the substance of
his argument is that the testimony should not have been admitted
for reasons unrelated to the hearsay rule.
                                                                    13


substantial risk of a miscarriage of justice.    See Commonwealth

v. Freeman, 352 Mass. 556, 563-564 (1967).

     "Whether proffered evidence is relevant and whether its

probative value is substantially outweighed by its prejudicial

effect are matters entrusted to the trial judge's broad

discretion and are not disturbed absent palpable error."

Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting from

Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).    S.B.

testified to her physical symptoms, as well as to her

contemporaneous report of the symptoms to her brother.      M.B.

testified to his observation of the symptoms, as well as to his

sister's report of those symptoms to him.    In particular, the

testimony that these physical symptoms began after the purported

sexual abuse began -- and that it continued while the abuse was

ongoing -- was probative of the fact that the abuse actually

occurred.   Cf. Commonwealth v. Shanley, 455 Mass. 752, 758-759

(2010) (sexual abuse resulting in genital pain).    The evidence

was particularly probative given the defendant's attacks on the

victim's credibility and his allegation that she fabricated the

accusation of assault.   Even if the evidence increased the

jury's sympathy for the victim, that result does not render the

evidence inadmissible given its probative value here.    See

Commonwealth v. Mendes, 441 Mass. 459, 467 (2004) ("Relevant

evidence is not rendered inadmissible by its potential to arouse
                                                                     14


feelings of sympathy in a jury.   The evidence remains admissible

if its probative value outweighs its potential for sympathy").

The judge did not abuse his discretion in admitting this

testimony.

     ii.   Photographic evidence and appeals to sympathy.   The

defendant claims that the admission of photographs of the victim

and of her brother showing injuries that resulted from physical

abuse by the Dales was unduly prejudicial.    There was no abuse

of discretion in the admission of either set of photographs. 15

     "The admissibility of photographic evidence is left to the

discretion of the trial judge . . . .   [I]f the photographs

possess evidential value on a material matter, they are not

rendered inadmissible solely because they are gruesome or may

have an inflammatory effect on the jury."    Commonwealth v.

Tassinari, 466 Mass. 340, 349 (2013) (citations omitted).      See

Commonwealth v. Bradshaw, 385 Mass. 244, 270 (1982) ("It is a

rare instance in which the probative value of such evidence is

so overwhelmed by its inflammatory potential that a reversal

would be warranted").



     15
       The defendant objected to the introduction of the
photographs of M.B. but not to the introduction of the
photographs of S.B. While we review the latter for prejudicial
error and the former for a substantial risk of a miscarriage of
justice, the difference in these standards is of no moment since
we conclude that there was no abuse of discretion.
                                                                    15


     This is not such a rare instance.    The defendant's case at

trial was based, in large part, on undermining the victim's

credibility, in particular with regard to the question of why

she did not report the sexual abuse until several years after

the abuse occurred.    The photographs of both siblings

corroborated the testimony that each gave of physical abuse at

the hands of the Dales; this corroboration was particularly

important given the defendant's attacks on both siblings'

credibility.    See Commonwealth v. Qualls, 440 Mass. 576, 586

(2003) (photographs admissible to corroborate testimony).

Establishing the extent and brutality of the physical abuse was,

in turn, important for the Commonwealth in showing the fear in

the household with respect to the Dales that could have led to a

delayed report of the sexual abuse. 16

     In addition to explaining the delay in reporting in

general, the photographs corroborated the victim's explanation

about how the initial incident of sexual abuse unfolded in

particular.    When the defendant first inappropriately touched

S.B., removing her underwear, he said that he was just checking

for scars, and she understood him to be checking her for


     16
       We note also that S.B. knew that Tina was an employee of
the Department of Social Services (DSS). S.B. may have feared
that any report of the sexual abuse to DSS would be in turn
reported to Tina, exacerbating an already difficult living
situation.
                                                                      16


injuries caused by a beating from Tina earlier that day. 17     The

photographs helped explain both the way the pattern of abuse

began and why the victim would have been hesitant to tell the

Dales that the incident had unfolded as it did.

     With respect to the defendant's argument that the

photographs of M.B.'s injuries were not even relevant -- before

balancing the probative value against the prejudicial effect --

the photographs helped explain why M.B. might not have told

anyone about S.B.'s revelation that Uncle Eddie had touched her

inappropriately.   The physical abuse that S.B. and M.B.

experienced jointly also reinforced the Commonwealth's narrative

that the siblings were close and that they shared private

matters with each other -- such as S.B.'s report of sexual abuse

-- that they would not share with other family members.    We

conclude that it was not an abuse of discretion to admit the

photographs showing both S.B.'s and M.B.'s injuries. 18


     17
       By stating that he was checking for scars, the defendant
contemporaneously linked the physical abuse to the pattern of
sexual abuse and attempted to ally himself with the victim in
opposition to the Dales. See note 3, supra. The fact that this
linkage stemmed from the defendant's own words further justifies
both the admission of the photographs and the references of them
in order to corroborate the history of physical abuse by the
Dales.
     18
       Even if it were error, there would be no prejudice
associated with the admission of the photographs -- let alone a
substantial risk of a miscarriage of justice. The photographs
present the Dales in a worse light. But they cast no darker
                                                                  17


     We similarly conclude that none of the other elements of

the Commonwealth's case at trial, in particular questioning S.B.

and M.B. regarding physical abuse at the hands of the Dales and

references to the abuse in the Commonwealth's opening statement

and closing argument, constituted impermissible appeals to

sympathy. 19    The delay in reporting the abuse and the credibility

of S.B. and of M.B. were central issues in the defendant's case

at trial.      As with the photographs, the references to the

physical abuse helped to explain the victim's delay in reporting

the sexual abuse and, to the extent M.B. was aware of the abuse,

his failure to report it.



shadow on the defendant than that cast by the detailed testimony
from S.B. -- corroborated by M.B. -- of the pattern of sexual
abuse. While the photographs would likely have generated
sympathy for S.B. in the absence of the other testimony, the
victim is a highly sympathetic figure by virtue of the remainder
of the evidence -- even without the admission of the
photographs.
     19
       The prosecutor's statement, in her closing argument, that
Tina pleaded guilty to beating the siblings was improper because
it was not supported by evidence. But it did not create a
substantial risk of a miscarriage of justice given the strength
of the over-all evidence supporting the guilty verdict, and
given that the evidence showed that Tina was under investigation
for physical abuse and that the siblings ceased to live with the
Dales because of the allegations of abuse. Moreover, the
defendant used the testimony with respect to the investigation
to his own advantage in arguing that the victim had ample
opportunity to report the sexual abuse during the investigation
of physical abuse and that her failure to do so casts doubt on
her testimony. We also note that the trial judge instructed the
jury that closing arguments were not evidence. See Commonwealth
v. Gonzalez, 465 Mass. 672, 680 (2013).
                     18


Judgment affirmed.
