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SJC-12227

                     COMMONWEALTH   vs.   GAUDY ASENJO.



            Essex.      February 6, 2017. - August 15, 2017.

    Present:     Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ.


Rape.  Evidence, First complaint, Expert opinion.         Witness,
     Expert. Battered Woman Syndrome.



     Indictments found and returned in the Superior Court
Department on May 22, 2013.

     The cases were tried before James F. Lang, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Emily A. Cardy, Committee for Public Counsel Services, for
the defendant.
     David F. O'Sullivan, Assistant District Attorney (Jennifer
S. Kirshenbaum, Assistant District Attorney, also present) for
the Commonwealth.


     HINES, J.       In January, 2015, the defendant, Gaudy Asenjo,

was convicted by a Superior Court jury of three counts of
                                                                      2


aggravated1 rape of a child.2    The complainant was the

defendant's niece, Sara,3 who was fourteen years of age at the

time of the rape.   The defendant appeals from the convictions,

claiming that the judge erred in (1) interpreting the first

complaint rule to require the disclosure of the perpetrator's

identity to the first complaint witness and allowing a police

officer to testify as the first complaint witness; (2) allowing

the complainant to testify to multiple disclosures of the sexual

assault in violation of Commonwealth v. King, 445 Mass. 217

(2005), cert. denied, 546 U.S. 1216 (2006), and its progeny; and

(3) precluding expert testimony in support of her defense based

on battered woman syndrome.     We conclude that the essential

feature of first complaint evidence is the report of a sexual

assault, not the identity of the perpetrator.     Consequently, the

admission of the police officer's testimony as first complaint

evidence was error, which, after viewing the evidence as a

whole, was prejudicial.   We conclude also that the judge erred


     1
       The aggravating factor was the age difference of more than
ten years between the defendant and the complainant, who was a
child over the age of twelve and under the age of sixteen. See
G. L. c. 265, § 23A.
     2
       In a separate trial in April, 2015, her codefendant, Luis
Rivera, was acquitted on three counts of aggravated rape of a
child.
     3
       A pseudonym. See G. L. c. 265, § 24C. Sara was born in
March, 1996, and she was eighteen years of age at the time of
trial.
                                                                    3


in admitting the complainant's testimony as to her multiple

disclosures of the rape.   Last, we conclude that a defendant

asserting duress under G. L. c. 233, § 23F, based on battered

woman syndrome, is not required to present affirmative evidence

of abuse as a predicate to the defense.    The judge erred in

excluding the proffered expert testimony on this ground.

Therefore, based on the foregoing, we reverse and order a new

trial.

    Background.   We summarize the evidence the jury could have

found.   In February, 2011, Sara and her twin sister spent most

of their February school vacation at the home of the defendant,

their maternal aunt.   One evening, toward the end of the week,

Sara, Sara's sister, the defendant's daughter, the defendant,

and the defendant's then boy friend, Luis Rivera, were present

in the home socializing and drinking alcohol.   Rivera and the

defendant had been in a relationship for a long time, such that

Sara considered him an uncle.   That evening, Sara was upset with

her sister and the defendant's daughter.   Although they were all

drinking alcohol, the other girls were also smoking marijuana

without including Sara.

    After the other two girls went upstairs to go to bed, Sara

stayed downstairs talking with the defendant.   At the time, Sara

was "really close" with the defendant and thought of her as a

"second mom."   During the conversation, the defendant inquired
                                                                    4


about Sara's sexual experience and told Sara how satisfying her

sexual relationship with Rivera was.    Later that evening, the

defendant telephoned Rivera, who had left the residence earlier,

and asked him to return because Sara wanted him to come back.

After the defendant told Sara that Rivera was returning, Sara

stated that she had not showered that day.    The defendant

instructed Sara to go into the bathroom and wipe her vagina

clean.    The defendant helped Sara remove her pants, and Sara

cleaned herself.    As the defendant inspected Sara's vagina, she

told Sara that Rivera would like it and that he would be "really

happy."

    Approximately ten minutes later, Rivera arrived at the

defendant's home.   The defendant suggested that the three of

them go into the bathroom, where Sara was instructed to lie down

on the floor on her back.   After the door was closed and locked,

the defendant turned off the lights and illuminated the room

with the flashlight application on her cellular telephone.

Rivera pulled Sara's pants and underwear down, but left her

shirt on.   Rivera performed oral sex on Sara, as the defendant

sat on the edge of the bathtub watching and asking Sara whether

she liked it.   Sara did not answer, and instead focused on her

upcoming birthday so that she would not have to think about what

was happening to her.   A few minutes later, Rivera inserted

something into Sara's vagina that hurt her.    Sara did not know
                                                                    5


whether it was his finger or his penis.     Rivera directed the

defendant to perform oral sex on Sara while he had vaginal

intercourse with the defendant.

    After the assault ended, Sara went upstairs, where her

sister and the defendant's daughter were sleeping.    Sara was

scared because Rivera was still in the home, but she eventually

went back downstairs to use the bathroom.    Rivera asked Sara

whether she wanted to do it again, but she ignored him, used the

bathroom, and ran back upstairs without incident.    Sara was hurt

and confused, thinking that it was her fault and that she could

have done something to stop it.   The next morning, the defendant

did not speak about the assault, and Rivera returned to the home

to bring everyone breakfast.   Although Rivera did not speak to

Sara that morning, he touched her backside each time he was

alone with her.

    Sara continued to visit the defendant's home after the

assault.   Each time Sara visited, she tried to ensure that

Rivera was not present.   A few weeks after the assault, Sara

asked the defendant whether it was possible that Sara was

pregnant because she was having stomach pains and had not

menstruated that month.   The defendant stated that she did not

know whether Sara was pregnant, but that if Sara were, she

should tell her parents that the father was a boy from school,

rather than Rivera.
                                                                   6


     Over a period of two years after the rape, Sara disclosed

the attack on four different occasions.     Sara first disclosed

the assault within weeks of the incident when she told her

cousin Mary4 that Rivera had raped her at the defendant's home.

Sara mentioned the defendant's presence during the rape, but did

not disclose her participation.     Sara did not mention the

defendant's participation because Sara still loved her and did

not want to get her into trouble.    In December, 2012, Sara

disclosed the rape for the second time to her sister and some of

their friends at a sleepover while playing a game they called

"if you really knew me."   Sara revealed that the defendant was

present when it happened but again did not disclose her

participation.    Sara made the third disclosure to her mother

within days of the sleepover without mentioning the defendant's

role in the rape.   Finally, Sara repeated the details of the

rape to Detective Ashley Sanborn of the Danvers police

department, revealing for the first time the defendant's

participation.5


     4
       A pseudonym. See G. L. c. 265, § 24C. Mary's mother is
the sister of both the defendant and Sara's mother.
     5
       Sara made two disclosures to Detective Ashley Sanborn on
January, 2, 2013. The first, which was the basis for Sanborn's
first complaint testimony at trial, occurred in the presence of
Sara's mother and sister. Sara gave a second, more detailed
statement after her mother and sister left the room, in the
presence of Sanborn and another detective. Although the judge
originally ruled that the Commonwealth could elicit testimony
                                                                      7


    Sanborn appeared as the Commonwealth's first complaint

witness and testified that on January 2, 2013, she spoke with

Sara and Sara's family, at the family's request, at the Danvers

police station.    After Sara's father left the room, Sara

disclosed that she had been raped by the defendant and Rivera.

Sara's sister also testified regarding Sara's December, 2012,

disclosure.

    Discussion.     1.   First complaint evidence.   On the first

day of trial, the Commonwealth moved to introduce the testimony

of Sanborn as first complaint evidence.     The defendant objected,

arguing that Sanborn was not in fact the first complaint witness

because Sara had disclosed the rape to others on at least three

prior occasions.    In a written order, the judge allowed the

Commonwealth's motion.    He ruled that Sara's prior disclosures

did not meet the test for first complaint evidence because the

statement to Sanborn was "the first time she [Sara] disclosed

that the defendant had committed sexual offenses against her and

participated with . . . Rivera in offenses that he committed as

a principal."

    The judge's order allowing the Commonwealth's motion to

designate Sanborn as the first complaint witness was error for

two reasons.    First, as our cases recounting the history of the



regarding both statements, he later determined that the second
statement was inadmissible.
                                                                     8


first complaint doctrine confirm, its essential feature is the

report of the sexual assault, not the identity of the

perpetrator.   As we discussed in King, 445 Mass. at 228-229, the

original purpose of the "fresh complaint" rule was to combat the

traditional, albeit outdated, notion that a true victim of

sexual assault should raise a "hue and cry," or report the

sexual assault in a timely manner.    Although the first complaint

doctrine evolved from the fresh complaint rule, the underlying

purpose of first complaint evidence is still "to counterbalance

or address inaccurate assumptions regarding stereotypes about

delayed reporting of a sexual assault or about sexual assault

victims in general," rather than affirmative evidence that the

alleged sexual assault actually occurred.    Id. at 240.    See

Mass. G. Evid. § 413(a) (2017).   "At its core, therefore, the

doctrine exists to facilitate credibility determinations where

an allegation of sexual assault is at issue."    Commonwealth v.

Mayotte, 475 Mass. 254, 260 (2016).    The fact that Sara

identified the defendant as a perpetrator for the first time in

the statement to Sanborn did not supplant the three prior

disclosures that, in revealing that a rape actually had

occurred, met the substantive test for admissibility as first

complaint evidence.   Commonwealth v. Murungu, 450 Mass. 441, 446

(2008) (disclosure of actual sexual assault necessary to

constitute complaint).   Thus, the interpretation of the first
                                                                     9


complaint rule to require the identification of the defendant as

a prerequisite to admissibility was error.

    Second, given our interpretation of the first complaint

rule to require only the report of the sexual assault, Sanborn

was improperly designated as the first complaint witness.

Sara's testimony established that Mary was the first person to

whom Sara reported the rape, about one month after it occurred.

Where a complainant has reported the sexual assault to multiple

persons, the designation of the first complaint witness is

solely a temporal consideration; it must not be subject to

manipulation based on the likely value of the witness's

testimony.   The Commonwealth may not "pick and choose among

various complaint witnesses to locate the one with the most

complete memory, the one to whom the complainant related the

most details, or the one who is likely to be the most effective

witness."    Murungu, 450 Mass. at 446.   Unless, for some reason,

Mary were unavailable as the first complaint witness, she, not

Sanborn, should have been designated as such.

    In certain limited circumstances, our law permits one

witness to be substituted for another to provide first complaint

evidence.    We address briefly whether Sanborn properly could be

designated as the first complaint witness under this rubric.

"[W]hen the first person told of the alleged assault is

'unavailable, incompetent, or too young to testify
                                                                          10


meaningfully,' the trial judge may admit testimony from a

substitute first complaint witness."       Commonwealth v. Kebreau,

454 Mass. 287, 292 (2009), quoting King, 445 Mass. at 243-244.

Additionally, a judge may substitute the first complaint witness

where the victim's disclosure to the "first person does not

constitute a complaint," or where the victim makes a complaint

to a person who "has an obvious bias or motive to minimize or

distort the victim's remarks."      Murungu, 450 Mass. at 446.      See

Mass. G. Evid. § 413(a) & note.      Mary was available to testify

and there was no evidence that her testimony was biased or that

she had motive to "minimize or distort [Sara]'s remarks."

Murungu, supra.      Because the Commonwealth failed to demonstrate

the propriety of a substitution on either ground, Sanborn's

testimony as the first complaint witness could not be admitted

on this basis.

       The defendant objected to the erroneous admission of

Sanborn's first complaint testimony.      Therefore, we must

determine whether the error was prejudicial.       See Commonwealth

v. Flebotte, 417 Mass. 348, 353 (1994).       We conclude that it

was.       Here, the defendant was indicted on three counts of

aggravated rape:       one as a principal, and two as an aider and

abettor.      Mary's testimony6 would have established only that the


       6
       Prior to trial, Sanborn interviewed Mary by telephone.
During the interview, Mary explained the circumstances and
                                                                    11


defendant was present while Rivera raped Sara.    Thus, if Mary,

the proper first complaint witness, had testified, the only

evidence of the defendant's participation in the rape would have

come from Sara's testimony.    The substance of Sanborn's first

complaint testimony implicating the defendant in the rape, taken

together with her status as a police officer, likely tipped the

scales unfairly in favor of Sara's credibility.    See King, 445

Mass. at 243.    Because the Commonwealth cannot show that the

error "did not influence the jury, or had but very slight

effect," the defendant is entitled to a new trial.    Flebotte,

supra.

     2.    Admission of the complainant's multiple disclosures.

On Sara's direct examination, the judge allowed her testimony

that she made four separate disclosures of the rape:       (1) to

Mary a few weeks after the rape; (2) to her sister and friends

during the sleepover in December, 2012; (3) to her mother

shortly after the sleepover; and (4) to Sanborn in January,

2013.    In overruling the defendant's objection to this

testimony, the judge explained that the evidence was admissible

because "the Commonwealth is entitled to elicit why [Sara]

waited to make the disclosure regarding this particular

defendant, and why she came forward when she did."    Although the



details of Sara's first disclosure of the rape. A transcript of
that interview was included in the record on appeal.
                                                                     12


judge noted his concern about "any piling on," he determined

that the risk of prejudice was not as high for the defendant

because Sara's prior disclosures did not actually implicate the

defendant.7   The admission of multiple disclosures in the

circumstances of this case was error.

     The judge's reliance on King, 445 Mass. at 245, for the

proposition that a complainant may testify to multiple

disclosures of the alleged sexual assault to give temporal

context to the first complaint was misplaced.     King states that

"the complainant may . . . testify to the details of the first

complaint . . . and also why the complaint was made at that

particular time."   Id.   This was not, however, an invitation to

allow a complainant to testify on direct examination to multiple

disclosures in her explanation of why the first complaint was

made at a "particular time."    See id. at 243.

     We acknowledge that Sara's testimony that she made multiple

disclosures may not have had the same impact as multiple

witnesses testifying to Sara's report of the sexual assault.

Nonetheless, the admission of her testimony created the same

risk of prejudice that we sought to prevent by the limitations


     7
       Although the judge was under the misapprehension that Mary
would testify as a defense witness, the decision to allow Sara
to preemptively testify about her disclosure to Mary was error
because Sanborn was the designated first complaint witness. See
Commonwealth v. King, 445 Mass. 217, 242-243 (2005), cert.
denied, 546 U.S. 1216 (2006).
                                                                    13


we imposed in King.     Sara's testimony, like that of multiple

first complaint witnesses, "likely serve[d] no additional

corroborative purpose, and may [have] unfairly enhance[d] [her]

credibility."   Id.

Because this testimony was merely corroborative, it created the

very type of prejudice that we cautioned against in King.     The

first complaint doctrine's limitation to one witness was

intended to vitiate the possibility of undue prejudice to the

defendant because it eliminated "prejudicial 'piling on' of such

witnesses."   Id. at 245.

    Defense counsel's use of the prior disclosures to attack

Sara's credibility did not cure the prejudice to the defendant.

Sara's testimony regarding her prior disclosures was admitted

substantively, without an instruction limiting the evidence to

impeachment purposes.    See G. L. c. 233, § 23.   This evidence

was particularly prejudicial to the defendant in light of the

improperly substituted first complaint witness's testimony,

which was the only evidence corroborating the defendant's

participation in the rape.    Moreover, the judge compounded the

error by allowing Sara to explain, during each of the

disclosures, why she did not previously implicate the defendant.

See King, supra.

    We have recognized that the first complaint doctrine does

not "prohibit the admissibility of evidence that, while barred
                                                                    14


by that doctrine, is otherwise independently admissible."

Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009).      The

Commonwealth, relying on Arana, argues for the first time on

appeal that the evidence of Sara's multiple complaints was

independently admissible as prior inconsistent statements, see

Mass. G. Evid. § 613(a)(1) & note (2017), and that, in any

event, no prejudice resulted because of defense counsel's use of

the statements on cross-examination.     We disagree.

    Sara's statements were not admissible as prior inconsistent

statements because the Commonwealth did not offer them as such.

See id.   The judge admitted the evidence of Sara's prior

disclosures to allow the Commonwealth to explain why Sara waited

to make the disclosure about the defendant's participation in

the rape and why she came forward when she did.     Moreover, the

Commonwealth did not attempt to prove that Sara made prior

statements that were inconsistent with her present testimony,

nor did it "lay a foundation by asking [Sara] if the prior

statements were in fact made and . . . giv[e] [Sara] an

opportunity to explain," as required.     Mass. G. Evid.

§ 613(a)(1).   See G. L. c. 233, § 23.    Sara's testimony to the

multiple disclosures, therefore, was not independently

admissible.

    3.    Battered woman syndrome evidence.    In support of her

duress defense, the defendant sought to introduce expert witness
                                                                    15


testimony regarding her battered woman syndrome diagnosis.       The

judge excluded the defendant's expert witness testimony on the

ground that the defendant failed to lay a proper foundation for

such evidence.    The judge determined that such testimony was

"irrelevant, and hence inadmissible, absent competent evidence

before the jury to support the putative expert testimony.    The

expert's recitation of what the defendant told her is inadequate

in that regard, as it may only be considered by the jury with

respect to the validity of the doctor's proffered opinion."8

This was error.

     As discussed infra, G. L. c. 233, § 23F, provides the

defendant the statutory right to present such evidence.    Nothing

in § 23F requires that a defendant proffer evidence of abuse in

order to present expert witness testimony, where certain

specified defenses are asserted.9   Moreover, the judge's reliance

on Mass. G. Evid. § 703 (2017) to exclude the defendant's expert

     8
       The judge stated that "there has to be some quantum of
admissible competent evidence of some history of psychological
or physical abuse, that could support the opinion that [the
defendant's expert witness] would be offering." The judge noted
that he was not setting an "overly high threshold," but insisted
that there must be some admissible evidence, such as a witness
who could testify to the abuse, to establish a foundation to
support the defendant's proposed expert witness testimony.
     9
       General Laws c. 233, § 23F, permits the defendant to
introduce "either or both" evidence that she was a victim of
abuse or expert evidence regarding battered woman syndrome;
therefore, it was error for the judge to require the defendant
to establish evidence of abuse as a predicate to introducing
expert witness testimony. See G. L. c. 233, § 23F.
                                                               16


witness testimony was misplaced where § 23F provides an

independent statutory basis to admit such evidence.

    Because G. L. c. 233, § 23F, is not so narrowly construed,

we take this opportunity to provide guidance regarding the

statutory requirements to admit evidence under G. L. c. 233,

§ 23F.

    General Laws c. 233, § 23F, states:

         "In the trial of criminal cases charging the use of
    force against another where the issue of defense of self or
    another, defense of duress or coercion, or accidental harm
    is asserted, a defendant shall be permitted to introduce
    either or both of the following in establishing the
    reasonableness of the defendant's apprehension that death
    or serious bodily injury was imminent, the reasonableness
    of the defendant's belief that [s]he had availed [her]self
    of all available means to avoid physical combat or the
    reasonableness of a defendant's perception of the amount of
    force necessary to dealt with the perceived threat:

         "(a) evidence that the defendant is or has been the
    victim of acts of physical, sexual or psychological harm or
    abuse;

         "(b) evidence by expert testimony regarding the common
    pattern in abusive relationships; the nature and effects of
    physical, sexual or psychological abuse and typical
    responses thereto, including how those effects relate to
    the perception of the imminent nature of the threat of
    death or serious bodily harm; the relevant facts and
    circumstances which form the basis for such opinion; and
    evidence whether the defendant displayed characteristics
    common to victims of abuse.

         "Nothing in this section shall be interpreted to
    preclude the introduction of evidence or expert testimony
    as described in clause (a) or (b) in any civil or criminal
    action where such evidence or expert testimony is otherwise
    now admissible."
                                                                   17


    The Commonwealth contends that § 23F requires foundation

testimony or evidence supporting an instruction on one of the

defenses specified in order to trigger the application of § 23F.

We do not agree.   In order to present evidence under § 23F, a

defendant need not present affirmative evidence of abuse because

§ 23F provides that, where a defendant asserts the defense of

self-defense or defense of another, duress or coercion, or

accidental harm, the "defendant shall be permitted to introduce"

certain evidence to establish the reasonableness of his or her

apprehension that death or serious bodily harm was imminent

(emphasis supplied).   G. L. c. 233, § 23F.

    Section 23F is more permissive than the common-law bases

for expert opinions outlined in Mass. G. Evid. § 703.    Compare

G. L. c. 233, § 23F, with Mass. G. Evid. § 703 (facts or data on

which expert witness may base opinion include "[a] facts

observed by the witness or otherwise in the witness's direct

personal knowledge; [b] evidence already in the record or that

will be presented during the course of the proceedings . . . ;

and [c] facts or data not in evidence if the facts or data are

independently admissible in evidence and are a permissible basis

for an expert to consider in formulating an opinion").     Section

23F does not restrict expert witness testimony to facts in

evidence, require the witness's personal knowledge or

observation, or require that the basis for the expert's opinion
                                                                  18


be independently admissible.   Instead, the statute merely

requires that the defendant assert certain specified defenses to

render admissible evidence of the defendant's past or current

abuse and expert witness testimony regarding abusive

relationships and the impact such abuse had on the defendant.

See G. L. c. 233, § 23F.

    Additionally, the Commonwealth's contention that § 23F

applies only to criminal cases "charging the use of force

against another," id., is without merit.   The Commonwealth reads

§ 23F too narrowly.   Although the statute provides that a

criminal defendant in cases "charging the use of force against

another . . . shall be permitted to introduce" certain evidence,

it does not require that the use of force is an essential

element of the crime in order for § 23F to apply.   Id.   See

Commonwealth v. Anestal, 463 Mass. 655, 675-676 (2012) (applying

§ 23F in murder in first degree case, notwithstanding fact that

"force" is not essential element of crime of homicide).

    On retrial, where the defendant asserts the defense of

duress, expert witness testimony regarding the defendant's past

abuse and battered woman syndrome diagnosis, and the impact

thereof, shall be admissible, pursuant to § 23F, with proper

notice.   See Mass. R. Crim. P. 14 (b) (2) (A), as appearing in

463 Mass. 1501 (2012).
                                                                  19


    Conclusion.   For the reasons set forth above, the

defendant's convictions of aggravated rape of a child are

reversed and the verdicts are set aside.   The case is remanded

to the Superior Court.

                                   So ordered.
