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13-P-1077                                                   Appeals Court

                     COMMONWEALTH   vs.   MARCOS CENTENO.


                               No. 13-P-1077.

            Essex.        November 10, 2014. - June 25, 2015.

               Present:     Rubin, Brown, & Maldonado, JJ.


Rape.  Indecent Assault and Battery. Assault and Battery.
     Child Abuse. Evidence, Subsequent misconduct, Expert
     opinion. Witness, Expert. Jury and Jurors. Practice,
     Criminal, Jury and jurors, Conduct of juror, Voir dire.


     Indictments found and returned in the Superior Court
Department on July 23, 2010.

     The cases were tried before Timothy Q. Feeley, J.

     William B. Van Lonkhuyzen for the defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


     BROWN, J.       The defendant was convicted by a jury on four

indictments charging rape of a child, two indictments charging

indecent assault and battery on a child under the age of

fourteen, and one indictment charging assault and battery.1


     1
       The four indictments charging rape of a child allege that
the rapes occurred "on diverse dates from and between April 1,
                                                                   2


The defendant now appeals, claiming that (1) the judge abused

his discretion when he allowed the admission of the defendant's

subsequent misconduct (subsequent bad acts) in evidence; (2) the

judge erred in denying a motion for a required finding of not

guilty on the indictment charging penile-vaginal rape, (3) the

judge abused his discretion in allowing in evidence certain

expert testimony that absence of physical injury is not

inconsistent with anal rape; and (4) the judge did not abuse his

discretion in declining to conduct a voir dire of a sitting

juror who was visibly upset.   We affirm.

     Facts.   We briefly summarize the facts taken from the

evidence presented at trial and reserve for later discussion

such additional facts as are relevant to each issue raised on

appeal.

     In 2004, when the victim was eight years old and entering

third grade, the defendant moved into the home she shared with

her mother and two younger brothers.2   The defendant began to

sexually assault the victim almost immediately.   The incidents



2004 and February 11, 2008" and consisted of oral rape, digital
rape, vaginal-penile rape, and anal rape. The two indictments
charging indecent assault and battery charged "hand on breast"
and "hand on genital area" within the same time period as the
rape indictments. The assault and battery indictment alleged
that the assault and battery occurred on May 17, 2010.
     2
       The victim was born on November 15, 1995, and was sixteen
and one-half years old when she testified at trial.
                                                                       3


continued unabated and escalated until the defendant left the

home in February, 2008.3      The victim's mother witnessed part of a

single incident.

       Although the defendant left the home in February, 2008, the

victim's mother took the victim and her other children to visit

him.       In this same period, the victim revealed to her aunt that

"[the defendant] used to touch" her.4      The victim told her aunt

not to tell anyone because she "felt embarrassed" and because

she thought her mother really liked the defendant and she did

not want to make her unhappy.      In addition, she did not think

her mother would believe her.

       The final incident occurred on May 17, 2010, after the

defendant had returned to the household from his two-year

hiatus.      In the course of an argument with the victim in a car,

the defendant punched the victim repeatedly on the head and

neck, leaving a mark on her neck.      Later, at the house, the

victim said, "[A]fter everything that he's done to me all those

years, he's going to hit me and beat me like that like he did

that day."      In response to the remarks the mother asked the


       3
       The defendant was incarcerated at this time, but the judge
excluded the introduction of any evidence of the defendant's
two-year incarceration.
       4
       Her aunt was only two and one-half or three years older
than the victim. The aunt's reaction, however, did not signal a
supportive ear and resulted in the victim feeling "even more
embarrassed and kind of closed up."
                                                                     4


victim what she was talking about.   The mother told the

defendant to leave the house, and upon his departure, the victim

told her mother "everything."

    Shortly after this incident, a cousin of the victim's

mother allowed the mother to listen to her telephone

conversation with the defendant, unbeknownst to the defendant.

The victim's mother testified that she heard her cousin say to

the defendant, "You must have done something really bad, because

you guys fight all the time, and she's never put you out

before."   After initially claiming ignorance, the defendant told

the mother's cousin that the victim "must have said something to

[her mother] about [me] touching her.    She must have made

something up about [me] touching her."

    The defense presented its case through cross-examination of

the Commonwealth's witnesses, and through the testimony of the

defendant's mother and the victim's aunt.    The defense urged the

jury to conclude that the victim was not credible because (1)

there was no physical evidence to support her claims, (2) it was

impossible to perpetrate the abuse she described in such close

proximity to other people without it having been detected, and

(3) she did not get along with the defendant and fabricated the

allegations to get him out of the house.

    Discussion.    1.   Uncharged subsequent misconduct.   After

the defendant's pretrial motion to exclude uncharged subsequent
                                                                   5


misconduct (subsequent bad acts) was denied and the

Commonwealth's motion to allow the introduction of such evidence

was allowed in part,5 the Commonwealth elicited testimony from

the victim, over objection, that after the defendant moved back

into the home in February, 2010, he again tried to touch or grab

her in the chest, "butt," or "private area" whenever she walked

by him.   The defendant argues this was evidence improperly

admitted.6   See Commonwealth v. Loach, 46 Mass. App. Ct. 313, 317

(1999).

     While such evidence may not be used to show the defendant's

criminal propensity or bad character, "[i]n sexual assault

cases, evidence of similar illicit sexual contacts involving the

same parties may be used to show a pattern of conduct, intent,

and the relationship between a defendant and a complainant.

Evidence of such other sexual contacts between the parties may

render it not improbable that the sexual act charged may have


     5
       The judge specifically did not allow the introduction of
any incidents during the victim's visits to the defendant while
he was incarcerated or at a particular birthday party.
     6
       We disagree with the defendant's contention that the case
turned solely on the victim's credibility. Here, the victim's
mother observed the defendant engaging in behavior that was
consistent with the victim's description of at least some of the
sexual assaults, and some of the defendant's statements could
fairly be viewed as consciousness of guilt. Contrast
Commonwealth v. Quinn, 469 Mass. 641, 650 (2014) ("implicit
vouching" of expert witness constituted prejudicial error,
particularly because case "rested almost entirely on the
credibility of the emotionally troubled victim").
                                                                   6


occurred."   Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 679

(2001), S.C., 437 Mass. 620 (2002).   See Commonwealth v. Frank,

51 Mass. App. Ct. 19, 23-24 (2001).   Even evidence of similar

crimes, "though committed in another place, if not too remote in

time, is competent to prove an inclination to commit the [acts]

charged in the indictment . . . and is relevant to show the

probable existence of the same passion or emotion at the time in

issue."   Commonwealth v. Barrett, 418 Mass. 788, 794 (1994),

quoting from Commonwealth v. King, 387 Mass. 464, 470 (1982).

    Here, the complained-of subsequent misconduct began as soon

as the defendant returned to the household.   The conduct was

remarkably similar to the earlier pattern of the charged sexual

assaults and involved the same victim.   The evidence of the

subsequent bad acts was relevant to show a pattern of conduct

and the existence of the defendant's sexual interest in the

victim.   Moreover, the judge immediately instructed the jury on

the limited use of the evidence to show motive, intent, or a

pattern of conduct and prohibited the jury from considering it

to establish guilt, propensity, or bad character.

    Nor is the subsequent misconduct so temporally remote from

the charged conduct to preclude its admission where the

defendant spent most of the interim period in prison.

Commonwealth v. Kater, 432 Mass. 404, 416 (2000).   See Walters

v. Maass, 45 F.3d 1355, 1357-1358 (9th Cir. 1995) (earlier bad
                                                                     7


acts not too remote in time because defendant spent nearly all

of intervening period in prison).   See and compare Commonwealth

v. Sharpe, 454 Mass. 135, 144 (2009).    There was no error in the

admission of this evidence.

     2.   Sufficiency of the evidence.   The defendant argues that

the evidence was insufficient to prove penile-vaginal rape

because there was insufficient evidence of penetration.    We

disagree.   The element of penetration can be established by

evidence that the defendant's penis touched or came into contact

with the victim's vagina, vulva, or labia.    See Commonwealth v.

Gichel, 48 Mass. App. Ct. 206, 213 (1999).

     Here, Jill Cote, a pediatric nurse practitioner, provided a

diagram of the female genitalia -- an oval-like shape with an

opening in the middle where the vagina was labeled -- as it

looks without any sort of manipulation that would reveal more

interior anatomy.7   Cote identified and labeled the labia majora

on the diagram.   After the victim testified to repeated

instances of the defendant lying on top of her and moving his

penis up and down on her vagina, "touching her vagina," she was

asked to identify the area on the diagram where the defendant's

penis touched her.   Referring to the diagram, she responded,

"[T]he whole picture."   The victim's testimony together with the


     7
       The diagram was admitted in evidence and has been made
part of the record on appeal.
                                                                    8


diagram establish that the defendant's penis touched the

victim's labia and vagina.    The evidence, accordingly, was

sufficient to establish the element of penetration.    The judge

instructed the jury, without objection, as follows:   "In

addition to the vagina, the female genital opening includes the

anterior parts known as the vulva and labia.   Penetration into

the vagina itself is not required."    See Massachusetts Superior

Court Criminal Practice Jury Instructions § 3.4, at 3-39 (Mass.

Continuing Legal Educ. 2d ed. 2013).    See also Commonwealth v.

Donlan, 436 Mass. 329, 336 (2002) ("element of penetration

required for a rape conviction is established by evidence that

[the defendant] touched or came into contact with the victim's

vagina, vulva, or labia").8


     8
       The defendant cites Commonwealth v. Russell, 470 Mass.
464, 480-493 (2015), to support his argument that there was
insufficient evidence to convict the defendant of penile-vaginal
rape of a child. The issue before the court in Russell was a
different one. There the defendant was acquitted of eighteen
counts of statutory rape, but convicted of seven counts of the
lesser included offense of indecent assault and battery on a
child under the age of fourteen. On appeal, the defendant
argued that the jury should not have been instructed on the
lesser included offense. The Supreme Judicial Court stated that
while there was sufficient evidence to support a conviction of
rape, there was also "a rational basis for acquitting the
defendant of the crime charged and convicting him of the lesser
included offense." Id. at 480, quoting from Commonwealth v.
Porro, 458 Mass. 526, 536 (2010). Consequently, the court
concluded, the judge did not err in giving the instruction on
the lesser included offense. Here, neither the defendant nor
the Commonwealth proposed an instruction on the lesser included
offense, and the defendant has not argued that the judge should
have given such an instruction sua sponte. There was sufficient
                                                                    9


    3.   Expert testimony.   The defendant argues that because

the hypothetical question concerning the effects of anal-penile

penetration on a young girl that was posed to Cote assumed

specific facts to which the victim had testified, the question

and answer invited the jury to conclude that Cote was testifying

that the victim had been sexually abused.   This argument misses

the mark.

    "The line between permissible and impermissible opinion

testimony in child sexual abuse cases is not easily drawn."

Commonwealth v. Richardson, 423 Mass. 180, 186 (1996).   Where,

as here, there is an "absence of evidence of physical injury, a

medical expert may be able to assist the jury by informing them

that the lack of such evidence does not necessarily lead to the

medical conclusion that the child was not abused."   Commonwealth

v. Federico, 425 Mass. 844, 851 & n.13 (1997).   See Commonwealth

v. Hrabak, 440 Mass. 650, 656 (2004).

    In Federico, a case similar to that at bar, an expert

witness who was a pediatric gynecologist and had not treated

either of the two female victims "responded to a series of

hypothetical questions."   In each case she was asked to "assume

certain facts, one of which was vaginal penetration of a girl by

an adult male, and another was the absence of physical signs of



evidence presented to support the conviction of penile-vaginal
rape.
                                                                    10


trauma to the genital area of the girl.     The remaining assumed

facts (different in each hypothetical question) concerned the

ages of the girls, frequency and the timing of intercourse, and

the timing of the physical examination of the girls in relation

to the most recent act of intercourse.     [The pediatric

gynecologist] was then asked whether the assumed facts were

'inconsistent' with each other.     She opined that the assumed

facts were not 'inconsistent.'"     Id. at 846, 854-855.    The court

held that "[t]he jury could not have understood [the pediatric

gynecologist's] testimony to mean that the abuse did occur, but

only that it was possible that the abuse had occurred."       Id. at

852.9

        Here, the prosecutor posed a question that included

information that was identical in all material respects to the

questions posed to the pediatric gynecologist in Federico:

             "[A]ssume that for the purposes of this question
        that a girl approximately ten to twelve years of age was
        anally penetrated by an adult male penis, and she did not
        complain of any bleeding or injury, but she did not know if
        any lubricant was used or not.

             "Based on your training and experience, do you have an
        opinion to [a] reasonable degree of medical certainty as to
        whether or not those assumed facts are inconsistent?"




        9
       In Federico, the Supreme Judicial Court also determined
that the questions posed to the other medical expert -- the
child psychiatrist -- were "deeply flawed" and reversed the
convictions on that basis. Id. at 853.
                                                                     11


Cote responded, "It is not inconsistent.     It is typical."10

    Because Cote had conducted a sexual assault examination of

the victim, but the judge had excluded the evidence from that

examination, Cote presented to the jury as a nontreating medical

expert.     Contrast Commonwealth v. Velazquez, 78 Mass. App. Ct.

660, 666-667 (2011) (potential prejudice amplified when witness

testifies both as percipient witness and expert).      Moreover,

Cote never gave an opinion as to "whether the alleged victim was

in fact subjected to sexual abuse."      Federico, supra at 849.

See Commonwealth v. Quincy Q., 434 Mass. 859, 872 (2001) (no

error where expert described her findings from her physical

examination and general findings associated with sexual abuse).

In addition, Cote, like the pediatric gynecological expert in

Federico, gave an opinion that these facts were not

"inconsistent" with abuse, thereby conveying to the jury that it

was merely possible the abuse occurred but not that it had

occurred.    See Federico, supra at 852.    There was no error here.

    4.      Juror voir dire.   The defendant argues that the judge

should have granted his request to conduct a voir dire of a

juror who became visibly upset during trial.

    At the beginning of the fifth day of trial, the judge

informed counsel that the court officers had brought to his


    10
       The judge struck the portion of Cote's response stating
that "[i]t is typical."
                                                                   12


attention that there was some personal "discomfort or hostility"

among some jurors unrelated to the case.    The judge gave the

jury a "pep talk on civility and getting along together," noted

that jury service was not easy, and encouraged them to be at

least professionally courteous with each other.    Acknowledging

"that there ha[d] been some non-case-related discomfort among

one or more of the jurors," the judge further commented that

since fourteen of them had been "thrown" into a small room with

some "unusually long break periods," it was "understandable that

there could be some personal friction."    However, he advised,

this was "not a basis for excusal [sic], because it doesn't

prevent each or any one of [them] from being fair and impartial

and doing the job that [they were] sworn to do."

     Following the instruction, the prosecutor stated at sidebar

that "Juror 13 seems to be sniffling and crying"; the judge

agreed.11   The following day, both the prosecutor and defense

counsel sought an inquiry of both jurors.    Acknowledging that he

had observed that juror 13 was crying as he gave his "little pep

talk," the judge ruled in relevant part:


     11
       On appeal, the defendant characterizes juror 13 as having
"tears streaming down her face." Although the defendant's trial
counsel described her in the same way, the judge responded that
he "didn't see tears streaming down her face, but [he] certainly
did see that she was emotional, and [he thought] it was a fair
characterization to say that she was crying as [he] gave [his]
little pep talk."
                                                                 13


          "But I did not see the emotion continue. I think it
     was a passing matter. I made a conscious effort thereafter
     to observe Juror No. 13 and observed her during the course
     of the testimony on repeated occasions being attentive.
     Not being emotional, being attentive, taking notes and
     looking to be fully engaged."
                              . . .

          "In my view that inquiry is not required in this case
     and would be a[n] impermissible insertion of the Court into
     a personal relationship between jurors that I think has
     resolved itself and will continue to be resolved in a way
     that will not affect the fairness or impartiality of any
     juror."

     We agree with the Commonwealth that the judge did not abuse

his substantial discretion in declining to conduct a voir dire

of the juror.   Compare Commonwealth v. Connor, 392 Mass. 838,

845 (1984) (when determining whether to discharge deliberating

juror, judge not permitted to inquire about "the juror's

relationship with his fellow jurors"); Commonwealth v. Keaton,

36 Mass. App. Ct. 81, 87-88 (1994) (judge entitled to use his

own observations at trial to assess juror's attentiveness).12

                                   Judgments affirmed.




     12
       The defendant argues that the case of Commonwealth v.
McGhee, 470 Mass. 638 (2015), supports his contention that the
judge should have conducted a voir dire of juror 13 in this
case. His reliance is misplaced. McGhee involves a situation
where a juror clearly slept through significant portions of the
trial testimony. Under those circumstances, the judge abused
his discretion by not conducting a voir dire. Here there was no
suggestion that the juror was inattentive. Instead, the juror
was momentarily upset, but the judge specifically observed that
the situation resolved itself.
