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15-P-1183                                                Appeals Court

                   COMMONWEALTH   vs.   AUGUSTO LOPEZ.


                            No. 15-P-1183.

            Middlesex.      March 6, 2017. - May 24, 2017.

             Present:    Carhart, Massing, & Lemire, JJ.1


Rape.  Child Abuse. Enticement of Minor. Evidence, First
     complaint, Relevancy and materiality, Credibility of
     witness. Witness, Credibility.



     Indictments found and returned in the Superior Court
Department on May 17, 2012.

     The cases were tried before Kenneth W. Salinger, J.


     Jane Larmon White, Committee for Public Counsel Services,
for the defendant.
     Jessica Langsam, Assistant District Attorney, for the
Commonwealth.


     MASSING, J.    The defendant was convicted of two counts of

rape and abuse of a child under sixteen years of age, aggravated

by an age difference of ten years or more, see G. L. c. 265,

     1
       Justice Carhart participated in the deliberation on this
case prior to his retirement.
                                                                      2


§ 23A(b), two counts of rape of a child by force, G. L. c. 265,

§ 22A, and one count of enticement of a child, G. L. c. 265,

§ 26C.   The charges arose from a single incident involving a

twelve year old girl.     The only evidence of the crime was the

testimony of the child, who was fifteen years old at the time of

trial.   At issue is the judge's decision to admit the testimony

of the child's "therapeutic mentor" that the child lacked the

ability to engage in "imagination play."       We conclude that the

testimony was improperly admitted to prove that the child was

incapable of telling lies and that its use for this purpose was

prejudicial, warranting a new trial.

    Background.      a.   The crime.   When the child was twelve

years old she lived next door to the defendant, whom she called

"Pachoo."   The defendant lived with Chrissy, who was a friend of

the child's mother, and Chrissy's three children, two of whom

were younger than the child.     The defendant was Chrissy's boy

friend and was fifty-five years old at the time.

    According to the child, one night she went next door to

babysit for Chrissy's two younger children while Chrissy went

out to play bingo.    The child had just finished using the

upstairs bathroom when the defendant called her into Chrissy's

bedroom.    The defendant pushed her onto the bed, took off her

pants and underwear, got on top of her, and "sticked his dick in

[her] vagina."   At some point he stopped, and the child put her
                                                                    3


underwear and pants back on.   Then the defendant put his hand

underneath her clothes and put his finger inside her vagina.

    After this, the two of them went downstairs to the parlor,

sat on the couch, and watched television.    The child testified

that the defendant grabbed her hand and "tried to make [her]

touch his dick," but she did not actually touch him.    The child

did not remember where Chrissy's children were during these

events.   When Chrissy returned, the child went back home without

saying anything to anyone.

    b.    The child's traumatic history.    Much evidence was

introduced, some preemptively by the Commonwealth and some on

cross-examination, that the child suffered from a number of

difficulties.   She had special education needs, was "classified

as being mildly mentally retarded," and had bipolar disorder.

She had a leg injury:   when asked about her leg, she explained

that her "patella went out of place" when she "got out of the

shower and [her] leg gave out and [she] fell six times."

    In addition, the child had been raped by an older male

cousin when she was seven or nine years old.    She was at her

aunt's house when her cousin, who was in the bathroom, said

"come here" and "showed [her] his thing."    They went into a

bedroom and were watching television when the cousin "pulled

[her] pants down and he sticked his dick in [her] vagina."
                                                                    4


    The incident with the cousin traumatized the child.       She

started having flashbacks, in which upsetting thoughts of her

cousin came to her involuntarily.   She would "see him on the

wall."    In these flashbacks it would feel like her cousin was

touching and hurting her again, and it scared her.    She started

seeing counsellors and therapists to help her deal with the

effects of this traumatic event.

    Defense counsel also elicited testimony on cross-

examination that the child had witnessed an older female cousin

and the cousin's boy friend having sex.    Around this time, and

before the incident with the defendant, the child shaved off all

of her pubic hair, even though she was not yet shaving her legs

or armpits.   After the incident with the defendant, in her

flashbacks she would see the defendant's face on the wall

instead of her cousin's.

    c.    The therapist's testimony.   Less than two weeks before

trial the Commonwealth moved in limine to present the child's

therapeutic mentor, Jill Larson, as the first complaint witness,

instead of the child's father.    See Commonwealth v. King, 445

Mass. 217, 241-248 (2005), cert. denied, 546 U.S. 1433 (2006).

After a hearing held on the eve of trial, the judge allowed the

motion.
                                                                    5


     At trial, while explaining the nature of her relationship

with the child,2 Larson testified, over objection, that she was

"aware of [the child's] difficulties in processing information,"

and that the child looks at the world "in a very black-and-white

. . . manner."    The judge allowed the prosecutor to pursue this

line of questioning to establish an "appropriate contextual

background," although he indicated that "at some point, it will

be enough."

     After additional questioning in this vein, Larson began to

testify that the child had difficulty "engaging in play."

Defense counsel objected again and, at sidebar, informed the

judge that the Commonwealth had disclosed, just the day before,

that Larson would testify that the child "was unable to engage

in pretend princess play and that she lacked the higher order of

thinking."    Defense counsel argued that testimony regarding the

child's thought processes required expert testimony and that

"her inability to play princess play" was not relevant.    The

judge ruled that "some limited questioning regarding facts in

this area" would be relevant, but cautioned the Commonwealth not

     2
       After graduating from college, Larson attended a four-year
clinical program for social work and obtained a master's degree.
At the time of trial she was working as a foster care social
worker and child protective worker in Maryland. She saw the
child weekly from September, 2011, through April, 2012, as a
therapeutic mentor, and was "involved in all her care plans,"
knew all her diagnoses, was "aware of all her therapeutic
issues, and . . . her cognitive delays."
                                                                   6


to elicit opinion testimony about the child's "tendency to tell

the truth or fantasize or anything like that."

     Larson then explained that the child "struggled with

imagination play, which really is a core piece of therapeutic

mentoring."   She described an outing to "Plaster Fun Time,"

where the child was given "a scenario of being princesses" and

"had to pretend that we were painting a castle and we had to

slay the dragon.   And [the child] really got frustrated because

she wasn't able to really higher-order think . . . ."    At this

point, the judge sustained defense counsel's objection and

forcefully instructed the jury to "disregard the last part of

the answer about inability to engage in a higher-order

thinking."

     Redirected to describe the incident at Plaster Fun Time,

Larson resumed her testimony, stating that the child "became

upset when she wasn't able to participate like the other

children who were being able to pretend that they were

princesses and being able to come up with characters and name

their dragons and she wasn't able to make a story line."     Larson

then testified about a regularly scheduled therapeutic mentoring

session with the child, during which the child disclosed being

sexually assaulted by the defendant.3


     3
       Over the defendant's objection, Larson also testified that
she was a mandated reporter because she was "in a position of
                                                                   7


    d.   Closing arguments.   Defense counsel argued that the

jury should discredit the child's testimony because "[h]er story

about Pachoo is too close to her story about her cousin," her

testimony was inconsistent, and there was no physical evidence.

Rhetorically addressing the possible argument that "she's not

sophisticated enough to do pretend play, so she's not

sophisticated enough to get up on the stand and make a

purposeful lie," counsel argued that the child did not

intentionally give false testimony, but rather that she was

"confused" about the facts, confused about her sexuality, and

influenced by "her recurring and intrusive memories of [her

cousin] in the weeks before accusing Pachoo."

    The prosecutor countered that the details of the incident

with the cousin differed from the child's description of what

the defendant did to her.   She argued that the child "doesn't

have the wherewithal and the sophistication to add the details,"

and that "[t]he details about what Pachoo did to her come from

the reality of her experiencing it."   With respect to the

therapeutic mentor's testimony, the prosecutor said, "Think

about what Jill Larson told you about how [the child] didn't

even have the ability to come up with a storyline about



working with children or adults," and, as such, she was required
"to report abuse, neglect or anything that is reported to us by
anybody that we are working with objectively."
                                                                     8


princesses, how she struggled with that, how frustrated she got.

She's not intelligent enough, she's not sophisticated enough to

perpetuate a cold, calculating fabrication."

    Discussion.    Evidence that the child was unable to engage

in imaginative play, or that she got upset because she was

unable to pretend to be a princess or slay a dragon at Plaster

Fun Time, should not have been admitted.   "To be admissible,

evidence must meet 'the threshold test of relevancy,' that is,

it must have a 'rational tendency to prove an issue in the

case.'"   Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107

(2000), quoting from Commonwealth v. Fayerweather, 406 Mass. 78,

83 (1989).   See Mass. G. Evid. § 401 (2017).   Larson's testimony

obviously was not probative of anything that occurred between

the child and the defendant.   Nor did it tend to prove the

content or circumstances of the child's disclosure of her "first

complaint" to her therapist.   While some background facts may

have been admissible to put the child's relationship with Larson

into context, cf. Commonwealth v. Rosario, 430 Mass. 505, 508

(1999), the challenged testimony went beyond the background of

their therapeutic relationship and into an attenuated collateral

matter.

    We recognize that "[t]he relevance threshold for the

admission of evidence is low," Commonwealth v. Arroyo, 442 Mass.

135, 144 (2004), that a judge has wide discretion in determining
                                                                    9


what evidence is relevant, see Commonwealth v. Alphas, 430 Mass.

8, 16-17 (1999), and that evidence can be relevant without

directly establishing a fact of the case.    See Mass. G. Evid.

§ 401, at 37 ("To be admissible, it is not necessary that the

evidence be conclusive of the issue. . . .    It is sufficient if

the evidence constitutes a link in the chain of proof").     And

evidence regarding the child's ability to engage in imaginative

play did have potential probative value on one issue in the

case:   whether her account of the rape by the defendant was

true, or whether she made it up.

    However, it is well established that "[n]o witness, neither

a lay witness nor an expert, may offer an opinion regarding the

credibility of another witness."   Commonwealth v. Quinn, 469

Mass. 641, 646 (2014).   See Commonwealth v. Montanino, 409 Mass.

500, 504 (1991) ("longstanding rule that witnesses may not offer

their opinions regarding the credibility of another witness").

"It is the province of the fact finder, not the witness, to

determine the weight and credibility of testimony."

Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401-402 (1983).

Vouching for the credibility of a witness, whether explicitly or

implicitly, is impermissible.   Quinn, supra at 646-647.

    Notwithstanding this limitation, the Commonwealth contends

that Larson's testimony was relevant "in light of the defense,

which was to attack the victim's credibility and suggest that
                                                                    10


she may have conflated the two incidents of rape."    While the

Commonwealth's argument does have some superficial appeal, it

does not survive scrutiny.

    The defendant permissibly pursued a variant of a Ruffen

defense.   See Commonwealth v. Ruffen, 399 Mass. 811, 815 (1987)

("If the victim had been sexually abused in the past in a manner

similar to the abuse in the instant case, such evidence would be

admissible at trial because it is relevant on the issue of the

victim's knowledge about sexual matters").    His defense was that

the child used the details of the rape by her cousin to accuse

the defendant, not intentionally or maliciously, but rather as a

product of trauma and confusion.    The defendant did not suggest

that the child engaged in an imaginative exercise to come up

with her accusations against him.   Sadly, although the child had

no experience being a princess, she did have experience being

raped.   Evidence demonstrating the child's inability to engage

in imaginative play had no bearing on the defendant's claim that

the child was confusing or conflating her real life experiences.

    Thus, the Plaster Fun Time incident was relevant only for

an improper purpose:   to suggest to the jury that the child was

incapable of lying and therefore must have been telling the

truth.   A reasonable juror hearing the child's therapist testify

that the victim saw things "in a very black-and-white . . .

manner," was not able to pretend like other children, and
                                                                    11


"wasn't able to make a story line," could think that the

therapist was implicitly vouching for the child's credibility.

See Quinn, supra at 647.    "While the proposed testimony fell

short of rendering an opinion on the credibility of the specific

child before the court, we see little difference in the final

result.    It would be unrealistic to allow this type of . . .

testimony and then expect the jurors to ignore it when

evaluating the credibility of the complaining child."

Commonwealth v. Ianello, 401 Mass. 197, 202 (1987).     Viewed in

this light, the admission of Larson's testimony was an abuse of

discretion.

    Having determined that the testimony was improperly

admitted, we must consider whether it was prejudicial.       Because

the defendant timely and forcefully objected to the testimony,

we apply the prejudicial error standard from Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994).    "An error is not

prejudicial where it 'did not influence the jury, or had but

very slight effect.'"    Quinn, supra at 650, quoting from

Commonwealth v. Christian, 430 Mass. 552, 563 (2000).

    The child's credibility was the only issue in the case.

The only witness other than the child and Larson was the child's

father, who was not a percipient witness or even a corroborating

witness.   No physical evidence was presented.   See Montanino,

409 Mass. at 504-505 (improper use of opinion testimony to
                                                                     12


bolster victim's credibility reversible error where victim "was

the key prosecution witness" and "his credibility was a crucial

issue"); Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 666-

668 (2011) (improper vouching by pediatrician who interviewed

victim held to be prejudicial where case rested on victim's

credibility).   Contrast Commonwealth v. Rather, 37 Mass. App.

Ct. 140, 149-150 (1994) (impermissible endorsement of victims'

credibility harmless where "various aspects of the victims'

testimony were corroborated by other witnesses").

     Although Larson was not permitted to testify as an expert,

based on her qualifications and relationship with the child, she

"acquired the veneer of an expert."    Commonwealth v. LaCaprucia,

41 Mass. App. Ct. 496, 500 (1996).    The danger of implicit

vouching is heightened "where, as here, the witness is

testifying to actual interaction with the child."    Ibid.     See

Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 451 (1996)

(testimony "intermingling [witness's] role as treating

therapist, expert on behavioral characteristics of sexually

abused children, and fresh complaint witness, had the effect of

impermissibly vouching for the [child's] credibility");

Velazquez, supra at 667.4


     4
       We express no opinion about whether a properly qualified
expert could testify about the perceptive or expressive
abilities of a person with the child's disabilities. Cf.
Commonwealth v. Rather, 37 Mass. App. Ct. at147-148 (while
                                                                   13


    In addition, in closing argument, the prosecutor focused on

Larson's testimony for its improper purpose, arguing that the

child "doesn't have the wherewithal and the sophistication to

add the details," and that, as Larson had told the jury, the

child "didn't even have the ability to come up with a storyline

about princesses, how she struggled with that, how frustrated

she got.   She's not intelligent enough, she's not sophisticated

enough to perpetuate a cold, calculating fabrication."   Although

the argument was properly based on the evidence admitted at

trial, see Commonwealth v. Lamrini, 392 Mass. 427, 433 (1984)

(although "there was no misconduct in the prosecutor's summation

because he relied on a ruling by the judge, we conclude that the

judge's ruling was error"), it served to focus the jury on

Larson's testimony for the wrong reasons.

    Given the nature of the improper testimony, the use that

was made of it at trial, the strong possibility that the jury

may have considered it as vouching for the child's credibility,

and the absence of any evidence other than the child's word, we

cannot be confident that the jury's verdict was not

substantially swayed by the error.   See Quinn, 469 Mass. at 650

(error prejudicial where "we cannot say [improper admission of


expert testimony explaining delayed disclosure by sexually
abused children is generally admissible, "the line between
proper testimony as to patterns of disclosure of child sexual
abuse victims and improper testimony constituting endorsement of
the credibility of a victim-witness is indeed a narrow one").
                                                               14


expert's implicit vouching] did not influence the jury's

evaluation of the victim's credibility").   Accordingly, the

judgments are reversed, and the verdicts are set aside.

                                  So ordered.
