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SJC-12396

              COMMONWEALTH    vs.   ANGEL LUIS ALVAREZ.



        Worcester.       January 8, 2018. - August 22, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Rape.  Indecent Assault and Battery. Evidence, Expert opinion.
     Witness, Expert. Practice, Criminal, Argument by
     prosecutor, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on August 22, 2014.

     The cases were tried before Daniel M. Wrenn, J.

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


     David Rassoul Rangaviz, Committee for Public Counsel
Services, for the defendant.
     Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.


     GANTS, C.J.     A Superior Court jury found the defendant,

Angel Alvarez, guilty on indictments charging three counts of

rape of a child and one count of indecent assault and battery
                                                                    2


upon a child.   The defendant presents three claims of error on

appeal:   first, that the prosecutor misstated important evidence

in closing argument; second, that the judge erred by admitting

expert testimony from the treating physician of the victim; and

third, that the judge's instructions unfairly limited the jury's

consideration of a defense based on the inadequacy of the police

investigation, known as a Bowden defense.    See Commonwealth v.

Bowden, 379 Mass. 472, 485-486 (1980).    We conclude that the

prosecutor's closing argument was prejudicial error, where she

told the jury of critical corroborative evidence that was not

presented at trial.    We therefore vacate the defendant's

convictions and remand the case to the Superior Court for a new

trial.    We address the defendant's other two claims of error

because they are likely to recur at a new trial.    We conclude

that the judge did not abuse his discretion in admitting the

expert opinion of the treating physician where it could not

reasonably be understood by the jury as implicitly vouching for

the complainant's credibility.    We also conclude that the judge

did not unfairly limit the jury's consideration of the Bowden

defense by instructing the jury to decide the case based solely

on the evidence.
                                                                     3


     Background.    The strength of the Commonwealth's evidence in

this case rested on the credibility of Camila,1 a twelve year old

girl who recounted acts of sexual abuse by the defendant that

had allegedly occurred on various occasions when she was between

the ages of six and nine.    The defendant is Camila's godfather,

and is married to Camila's aunt; Camila thinks of the defendant

as her uncle and refers to him as "tio."

     When Camila was six years old, the defendant and several

relatives were at her house for a party.     The defendant asked

her to come with him to pick up her cousin to bring back to the

party.    Camila refused because she was having fun.   The

defendant "begg[ed]" Camila's mother for Camila to accompany him

and her mother agreed.    The defendant drove to his house and

told Camila he needed something from inside.     Camila wanted to

stay in the vehicle, but the defendant insisted that she come

inside the house.    As the defendant looked for something, Camila

sat on an air mattress in one of the bedrooms.    The defendant

walked in and took off his pants and underwear.    He pulled down

Camila's skirt and underwear.    He laid down on the bed and "put

[Camila] on top of him" and "his penis touched [her] vagina."

The sexual assault lasted approximately one minute; the

defendant then went to the bathroom.    Camila testified that her

vagina felt "sticky," "wet, and disgusting."

     1   We use a pseudonym for the child.
                                                                     4


    The defendant and Camila left the house and drove to pick

up her cousin.    On the way, Camila told the defendant that her

vagina was hurting.     The defendant was "surprised" and asked

"why it was hurting."     She said that she did not know why she

was in pain.     The defendant told her to not tell her mother.

After picking up Camila's cousin the defendant drove back to

Camila's house.

    Camila testified that, once she was home, she felt "wet and

sticky and gross," and asked her mother if she could shower.

She ultimately did not shower again because she had showered

approximately one hour before leaving the house; instead, she

played with her cousins.

    The defendant worked as a taxicab driver and would

sometimes pick up Camila from school in a taxicab.     On four to

six occasions, when Camila was six or seven years old, the

defendant drove her to a fast food restaurant and parked the

taxicab behind the restaurant.    There, he would place his hand

under Camila's pants and underwear and into her vagina.

    When Camila was six or seven years old, she was in a

hallway in the defendant's apartment, waiting for him to drive

her home for a family event.     Camila's aunt was in another room

getting ready.    The defendant walked into the hallway, pulled

down his pants and underwear, and put his penis in Camila's
                                                                    5


mouth.    The defendant told her to "suck it and do it."   After

approximately one minute, Camila pushed the defendant away.

    When Camila was approximately eight years old, the

defendant on two separate occasions stood behind her in the same

hallway and rubbed his penis on her buttocks.    On another

occasion, when she and the defendant's niece were both sleeping

at his house on different couches in the same room, the

defendant put his hand under Camila's blanket and inside her

vagina.   Camila woke up, said "[o]w," and pushed him away.

    Every time Camila slept at the defendant's house, he tried

to assault her.   She would respond by pushing and kicking him,

and the defendant would remain quiet and walk out of the room.

    When Camila was nine years old, soon after the assault on

the couch, she was home, celebrating New Year's Eve with the

defendant's niece.   The defendant's niece wanted Camila to sleep

at the defendant's house, but Camila did not want to.      The

defendant "kept begging" Camila's mother to allow Camila to

sleep over until she acquiesced.   Once at the defendant's house,

Camila said she was hungry and asked the defendant for food.

After the defendant told her he had no food and no money for

food, Camila said, "I just want to go home, I want to go home."

The defendant "screamed" at her, "Just go home, then, go home."

The defendant's niece drove Camila to a fast food restaurant and

then drove her home.
                                                                    6


    Approximately two weeks later, Camila was talking with her

mother and one of her sisters.   Someone mentioned the defendant,

and Camila started crying.   After her mother and sister asked

why she was crying, Camila disclosed that the defendant had

assaulted her multiple times.

    Soon after disclosing that the defendant had been

assaulting her, Camila was examined by Dr. Heather C. Forkey, a

pediatrician who specialized in caring for children who have

been victims of abuse.   Dr. Forkey testified at trial that

Camila did not exhibit or report any of the common behavioral

symptoms of abuse -- including nightmares, bed-wetting,

difficulty in school, and running away from home.   She also

testified that Camila's genital examination was "normal" for a

nine year old girl, and that there were no signs of genital

injury.   When the prosecutor asked Dr. Forkey to offer an expert

opinion as to whether "it is or is not common to find physical

injuries during the genital exam of someone that has been

sexually abused," the defendant objected.   Dr. Forkey answered,

"It's very uncommon," before the judge sustained the objection

on the grounds that the question "stray[ed] too close to the

credibility component of the case."   Mistakenly believing that

Dr. Forkey had not answered the question, the judge denied the

defendant's motion to strike any response to the question.     At

the conclusion of her direct testimony, without objection, Dr.
                                                                      7


Forkey testified that "[t]he absence of physical trauma is not

inconsistent with abuse."

    When the defendant was interviewed by the police about

these allegations, he admitted that he had spent time with

Camila "almost every day," that she would "always hang out" with

him and "always call" him, but he insisted that he had never

touched her in a sexual manner.    When asked by the police if

Camila had ever "come on" to him, he stated that she never had,

and he denied having "any feelings like that towards her."       He

declared, "I [have] always been good to this family; I [have]

never hurt [them]."    When asked why Camila would say that he

abused her if it were not true, he answered, "I don't know."

When the interrogating police officer falsely told the defendant

that she knew that he had kept photographs of young girls on his

cellular telephone, thinking that this "bluff" would cause the

defendant to confess, he adamantly denied ever having taken such

photographs or keeping any on his cellular telephone.     There was

no evidence at trial that the defendant possessed any child

pornography or photographs of children, and no evidence of bad

acts towards any other child.

    The defendant appealed his convictions, and we granted his

application for direct appellate review.

    Discussion.   1.    Prosecutor's closing argument.   As noted,

Camila testified that, when she was six years old, after the
                                                                      8


first alleged sexual abuse incident with the defendant, she

"felt wet and disgusting" because of a "sticky" substance around

her vagina.    She also testified that, when she was nine years

old and told her mother and sister about her sexual abuse, she

spoke of this aspect of the incident and said:     "I told them how

I felt gross and wet; that's why I wanted to take the shower."

This was the only sexual incident in which there was any

indication that the defendant had ejaculated, so corroboration

from a source other than Camila that she felt "wet and sticky"

would strongly corroborate her testimony regarding that

incident.     The prosecutor recognized the importance of this

corroborative evidence by telling the jury during her opening

statement that Camila would testify that, after she returned

home and told her mother that she needed to "take a tub or a

shower," "[h]er mom said, 'Why?     You just took one before you

left, a few hours ago.'"     However, when Camila testified, she

testified only that she had asked her mother whether she could

take a shower, but that she did not shower because she had taken

one an hour before she had left home.     She was not asked what

her mother said in response to her desire to take a shower, and

did not testify as to any statement made by her mother regarding

that incident.

    When Camila's mother testified, the prosecutor did not ask

about this incident; the mother said nothing about Camila asking
                                                                   9


to "take a tub or a shower," or her saying she felt "wet,"

"disgusting," or "sticky" when she came home.   On cross-

examination, defense counsel asked Camila's mother to read the

police report reflecting what she had told the detective after

Camila's first complaint regarding this particular incident, and

the following dialogue ensued:

    Q.: "And . . . you told the detective about the first
    incident that [Camila] told you about?"

    A.:   "Yes."

    Q.: "And that's when [the defendant] was at your house,
    and was supposed to go pick up some other cousins?"

    A.:   "Yes."

    Q.: "And you told the detective that he asked if he could
    take [Camila]?"

    A.:   "Yes."

    Q.: "And she asked you, 'Mommy, can I go with tio to pick
    up the kids'?"

    A.:   "Yes."

    Q.:   "And you said 'Yes; go ahead'?"

    A.:   "Yes."

    Q.: "And when she got home that day, she didn't tell you
    that [the defendant had] hurt her?"

    A.:   "No."

    Q.: "She didn't tell you that she didn't want to see him
    [anymore]?"

    A.:   "No."
                                                                  10


    Q.: "And she wanted to play with the other kids that were
    around?"

    A.:   "No, because there wasn't anybody."

    Q.: "There were no kids around when she came home that
    first day?"

    A.:   "There weren't children."

    Q.:   "Who was around?"

    A.: "Us -- the same people as always. He went to go pick
    up the girls, but I never saw the girls."

    Consequently, there was no testimony elicited at trial,

either from Camila or her mother, regarding what the mother had

said when Camila returned home from that incident, and no

corroboration by the mother that Camila wanted to clean herself

when she returned home that day.   However, during closing

argument, the prosecutor, in answer to defense counsel's

argument that the case rested solely on the words of Camila,

said:

    "the Commonwealth submits that's not true. You have some
    corroboration . . . of [Camila's] word in other forms.
    You have her mom saying . . . she told you how that first
    time she came home and asked to take a bath, because she
    felt disgusting? Mom told you, 'She did come home one day
    and ask to take a bath, and I thought it was weird, because
    she had taken a bath that morning.' That's corroboration."

    Defense counsel objected at the end of the prosecutor's

closing argument, informing the judge that there was no evidence

that the mother provided any corroboration of Camila's testimony

that she told her mother she needed to bathe.   Neither the
                                                                    11


prosecutor nor the judge recalled whether the mother had offered

this testimony, and defense counsel herself said that she might

have been mistaken about it.     The judge refused to give any

curative instruction.     Instead, the judge told the jury during

his instructions that they are "the sole and exclusive judges of

the facts," and that "opening statements and the closing

arguments of the lawyers are not a substitute for the evidence,"

but are simply intended to assist the jury in understanding the

evidence.

    Under our case law, "[w]hile prosecutors are entitled to

argue 'forcefully for the defendant's conviction,' closing

arguments must be limited to facts in evidence and the fair

inferences that may be drawn from those facts."     Commonwealth v.

Rutherford, 476 Mass. 639, 643 (2017), quoting Commonwealth v.

Wilson, 427 Mass. 336, 350 (1998).     See Commonwealth v. Silva-

Santiago, 453 Mass. 782, 807 (2009).    Where, as here, the

prosecutor argued facts in closing argument that find no support

in the evidence at trial and where that error is preserved by a

timely objection, the error is nonprejudicial only if we are

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

slight effect."    Commonwealth v. Hrabak, 440 Mass. 650, 656

(2004), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).     "Where it cannot be said with assurance that the

improper closing argument could not have influenced the jury to
                                                                     12


convict, the judgment of conviction cannot be preserved."

Commonwealth v. Beaudry, 445 Mass. 577, 586 (2005), quoting

Commonwealth v. Kelly, 417 Mass. 266, 272 (1994).    See also

Commonwealth v. Mountry, 463 Mass. 80, 92 (2012).

    We consider four factors in determining whether an error

made during closing argument is prejudicial:   "(1) whether the

defendant seasonably objected; (2) whether the error was limited

to collateral issues or went to the heart of the case; (3) what

specific or general instructions the judge gave the jury which

may have mitigated the mistake; and (4) whether the error, in

the circumstances, possibly made a difference in the jury's

conclusions."   Silva-Santiago, 453 Mass. at 807, quoting

Commonwealth v. Perez, 444 Mass. 143, 151 (2005).    Here, the

defendant objected in a timely manner to the factually incorrect

statement in the prosecutor's closing argument.     The error went

to the "heart of the case," that is, the credibility of Camila.

See Commonwealth v. Pearce, 427 Mass. 642, 645 (1998) (victim's

credibility went to heart of case where Commonwealth's evidence

"consisted primarily of the victim's testimony and four fresh

complaint witnesses").   And the judge gave only the most general

instructions to mitigate the mistake. In these circumstances, we
                                                                  13


cannot say with assurance that this error could not have

influenced the jury's verdict.2

     The judge instructed the jury before closing arguments that

a "closing statement is not itself evidence, nor is it a

substitute for the evidence.   The evidence in this case is

closed."   But we cannot be confident that the jury recognized

that the prosecutor erred and that the mother never gave this

testimony, where (1) the prosecutor quoted the mother's question

to Camila about Camila's need to bathe in her opening statement

on the first day of trial; (2) the prosecutor quoted the mother

again about how "weird" it was that Camila wanted to take a bath

after having just taken a bath earlier that morning in her


     2 In Commonwealth v. Silva-Santiago, 453 Mass. 782, 808
(2009), as here, "[t]he only instruction the judge gave that may
have mitigated the error was her reminder to the jury in her
final instructions that 'the closing arguments of the lawyers
are not a substitute for the evidence. They are only intended
to assist you in understanding the evidence and the respective
contentions of the parties.'" We noted in that case, "The judge
did not focus on any statement in the prosecutor's closing
argument when she provided this guidance, so the jury were not
warned to be careful in comparing their memory of [the
witness's] testimony with the attorneys' characterization of
it." Id.

     In Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005), the
judge told the jury in her final instructions not to speculate
about matters not in evidence and to confine their deliberations
to the evidence. She also informed them that closing arguments
are not evidence, and that the jury "should rely on their memory
of the evidence if their memory [was] different from that of an
attorney." Id. We characterized these remarks as "standard
fare" and concluded that they did not address the closing
argument error. Id.
                                                                     14


closing argument on the second day of trial; (3) neither the

judge nor the prosecutor could recall whether the mother had

given this testimony even after defense counsel told them it was

never in evidence; (4) defense counsel did not have any

opportunity to tell the jury that there was no such evidence

because she had already given her closing argument; and (5)

nothing the judge told the jury meaningfully cautioned them to

be wary in considering the prosecutor's closing argument.      And

if the jury were under the false impression that Camila's mother

had testified that she thought it "weird" that Camila wanted to

take a bath, we cannot say with assurance that this could not

have influenced their verdict.   The prosecutor thought this

supposed corroboration to be so important that she mentioned it

both in her opening statement and in her closing argument, and

discussed it first when she spoke about the corroboration of

Camila's testimony.   And it would have been powerful

corroboration of Camila's testimony, had it actually been in

evidence, because it would have corroborated that Camila

immediately after the incident said she felt "wet" and "sticky"

after the defendant ejaculated on her.

    In fact, apart from the first complaint evidence, which

itself simply reported what Camila had said to her mother when

she revealed the sexual abuse, the prosecutor's imagined

testimony of the mother that Camila said she wanted to bathe or
                                                                   15


shower and that the mother thought this "weird" because Camila

had recently bathed, was the only significant corroboration of

Camila's testimony.    The other claimed corroboration that the

prosecutor spoke of in her closing argument amounted to almost

nothing.

    The prosecutor argued three other sources of supposed

corroboration.    First, she argued that Camila's statement to her

mother that she no longer wanted the defendant to pick her up

from school was corroborative of her allegations of his sexual

abuse.     But the evidence at trial, offered by both Camila and

her mother, was that the defendant worked as a taxicab driver

during that time period and often would not drive Camila home

from school until after he had finished his work day, which

sometimes did not end until 10 P.M.     Camila's testimony at trial

was that she asked her mother to pick her up from school because

"[the defendant] takes a long time to bring me back home."

    Second, the prosecutor argued that it was corroborative

that Camila wanted to come home from the defendant's home in the

middle of the night on New Year's Eve.    But the evidence at

trial was that Camila's mother had rented a hall on New Year's

Eve day to enable her entire family to get together, including

the defendant, his sister, and his two nieces who were visiting

from New York.    Camila testified that the defendant wanted her

to come to his home to spend time with his nieces, so she went
                                                                    16


to his home with a friend and the friend's cousin at

approximately 12:30 A.M.     As earlier noted, when she arrived,

they were hungry, but the defendant said that he had no money

and no food.    Camila said that she wanted to go home, and the

defendant "screamed" at her, "Just go home, then, go home."

Camila told her mother that she wanted to come home and, after

the defendant's niece took Camila to eat at a fast food

restaurant, her cousin drove her home around 1:30 A.M.     There

was no evidence that the defendant touched her that night, or

attempted to.    Under these circumstances, it is hardly

surprising or noteworthy that a nine year old child, especially

one who testified that she gets homesick and prefers to stay at

home with her mother, would want to go home.

    Third, the prosecutor argued in closing, "You have [the

defendant] himself telling you, 'She came to my house for sleep-

overs.   I picked her up at school.   We played all these games.'

That's all corroboration."    But all those facts are equally

corroborative of a healthy relationship between a child and her

godfather, whom she considers her uncle; accordingly, they lend

no credence to Camila's testimony regarding sexual abuse.

    We have found prejudicial error in comparable cases,

despite the seriousness of the alleged crime.     In Commonwealth

v. Loguidice, 420 Mass. 453, 453-454 (1995), the defendant was

charged, and subsequently convicted of, two counts of forcible
                                                                  17


rape of a four year old child.   The prosecutor argued during

closing that the child victim had observed the defendant

masturbate and ejaculate, and that the persons who lived in the

apartment near where the incidents allegedly occurred were at

church on the morning of the day of the incidents; but there was

no evidence in support of either assertion.    Id. at 454-455.   We

noted that where "an objection is made to a prosecutor's error,

the judge summarily rejects the challenge, and thus there is no

curative jury instruction, an appellate court should proceed

with caution in considering whether it is likely that an error

made no difference in the jury's result."     Id. at 456.   In

reversing the judgments, we concluded:

    "This was a close case for the jury. Success for the
    Commonwealth depended completely on the credibility of the
    child. In such an instance, errors in a prosecutor's
    closing argument describing a circumstance that made the
    defendant's commission of the crimes more plausible (the
    [neighbors'] absence) and putting the defendant in an
    unfavorable light (masturbation in front of the child)
    should not be viewed collectively as unlikely to have
    affected the jury's verdicts."

Id. at 457.

    In Commonwealth v. Beaudry, 445 Mass. at     580, 586, we

reversed the defendant's convictions of rape of a child where

the prosecutor, despite the absence of expert testimony,

declared during closing argument that a nine year old child

would not have known about the specific types of sexual acts

alleged unless she had experienced them.    We determined that
                                                                  18


where, despite a timely objection, the judge did not cure the

improprieties "by appropriate and timely" instructions, and

where "[t]he verdicts rested solely on the jury's believing [the

alleged victim]" because "[t]here was no physical evidence or

testimony from eyewitnesses to the abuse," id. at 585, "[w]e are

unable to say that we are assured that the improper remark had

little or no effect on the jury's deliberations."   Id. at 586.

    In Commonwealth v. Silva-Santiago, 453 Mass. at 806-807,

the prosecutor argued in closing that an eyewitness had seen the

defendant at the approximate location where the shooting

occurred when, in fact, the eyewitness testified that she had

seen the defendant there roughly ten to fifteen minutes before

the shooting and had not seen him there at the time of the

shooting.   Where this witness's testimony was presented to

corroborate the "photospread" identification of the defendant as

the shooter by other eyewitnesses, and where the prosecutor, by

mischaracterizing this part of her testimony, "transformed into

inculpatory testimony the exculpatory part of [the witness's]

testimony," we concluded that "[w]e cannot say with assurance

that the closing argument errors, considered together in the

totality of the circumstances, could not have influenced the

jury to convict."   Id. at 788, 808.   See also Commonwealth v.

Misquina, 82 Mass. App. Ct. 204, 205-208 (2012) (reversing

indecent assault and battery conviction for prejudicial error
                                                                 19


where prosecutor argued in closing that victim had recounted

same description of crime to four persons, but where there was

evidence of her telling only one person).

     For the reasons stated, we conclude that, where the

convictions in this case rested solely on the credibility of a

young child, and where the prosecutor, in both her opening

statement and closing argument, told the jury about key

corroborative testimony of the mother that the prosecutor did

not attempt to elicit during trial and that was not otherwise in

evidence, and where a timely objection by defense counsel did

not yield an effective curative instruction, we must reverse the

convictions and remand the case for a new trial because we

cannot say with assurance that the prosecutor's improper closing

argument could not have influenced the jury to convict.3,4


     3 Because of the likelihood of a retrial, we address the
defendant's two other claims of impropriety in the prosecutor's
closing argument which, because they were not preserved at trial
by an objection, we review to determine whether they created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Horne, 476 Mass. 222, 225-226 (2017), quoting Commonwealth v.
Zimmerman, 441 Mass. 146, 150 (2004) ("Where . . . the objection
was not preserved, we review the defendant's claim to 'determine
whether any error . . . created a substantial risk of a
miscarriage of justice"). First, the defendant contends that
the prosecutor in her closing argument, when speaking about
Camila wanting to go home on New Year's Eve, improperly asked
the rhetorical question, "Should we bring in more witnesses to
tell you the same thing?" The defendant correctly contends that
this statement improperly suggests that other witnesses would
have corroborated Camila's testimony on this point had they
testified. See Commonwealth v. Dirgo, 474 Mass. 1012, 1017
(2016) (improper for prosecutor to imply "that there were more
                                                               20




witnesses that were not brought before the jury that would have
corroborated the first complaint testimony"). But where the
defendant did not object to the prosecutor's use of this
rhetorical question and where there was no testimony that the
defendant sexually touched Camila on New Year's Eve, we conclude
that this impropriety did not create a substantial risk of a
miscarriage of justice.

     Second, the defendant claims that the prosecutor improperly
compared the evidence in this case to the evidence in other
child sexual abuse cases when she stated during her closing
argument, "In this case, as in a lot of these cases, the only
evidence you have in front of you is testimony." But where the
defendant did not object to the prosecutor's statement, we
conclude that this comment regarding the nature of the evidence
presented in "a lot of" other child sexual abuse cases, although
best omitted, did not create a substantial risk of a miscarriage
of justice.

    4  The dissent unfairly mischaracterizes the court's opinion
in various ways that warrant rebuttal. First, the dissent
attempts to paint the opinion as giving less weight to the
credibility of the testimony of alleged victims of sexual
assaults than the testimony of alleged victims of other crimes.
It does not. If the allegation here was theft, rather than
sexual assault, and if the weight of the evidence rested solely
on the testimony of a child regarding events that happened when
the child was between the ages of six and nine, our analysis
would be precisely the same. We reject the notion that the
testimony of alleged sexual assault victims is less credible
than the testimony of the alleged victims of other crimes, and
recognize that notion as the product of stereotypical
misperceptions, prejudice, and bias. See generally Commonwealth
v. Asenjo, 477 Mass. 599, 603 (2017), quoting Commonwealth v.
King, 445 Mass. 217, 239-241 (2005), cert. denied, 546 U.S. 1216
(2006) ("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'");
Commonwealth v. Arana, 453 Mass. 214, 228 (2009) (recognizing
importance "that a complainant (who, as here, may be still a
child) has her credibility fairly judged on the specific facts
of the case rather than unfairly by misguided stereotypical
thinking").
                                                               21



     Second, the dissent, in stating that "courts have dismissed
the value of sexual assault victim testimony" with "ease,"
insinuates that the opinion here has done just that. Post at
. It does not; we do not in any way dismiss the value of
Camila's testimony. The testimony of Camila plainly was
sufficient as a matter of law to support the defendant's
convictions and, if the prosecutor had not told the jury in
opening statement and closing argument of key corroborating
testimony of Camila's mother that was not in evidence, the
convictions would have been affirmed. But where a conviction
rests solely on the credibility of a single witness, a
reasonable jury must believe that witness's testimony beyond a
reasonable doubt with respect to the required elements of a
crime to find a defendant guilty of that crime. The issue on
appeal is not whether we credit Camila's testimony, but whether
we are "sure that the error did not influence the jury, or had
but very slight effect" in the jury's evaluation of whether they
believed that testimony beyond a reasonable doubt. See
Commonwealth v. Hrabak, 440 Mass. 650, 656 (2004), quoting
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). By
concluding that we are not sure that the error did not influence
the jury in its deliberations, we in no way "dismiss" the value
of Camila's testimony.

     Third, the dissent contends that, by noting that Dr.
Heather Forkey testified that Camila did not exhibit or report
any of the common behavioral symptoms of abuse, including
nightmares, bed-wetting, difficulty in school, and running away
from home, and that her genital examination was "normal" for a
nine year old girl, the court's opinion "creates a de facto
corroboration requirement, necessitating a child without
physical symptoms or eyewitnesses . . . to display enough
emotional trauma to be credible." Post at     . It does not.
The uncorroborated testimony of a child is sufficient to support
a conviction of sexual assault, but a competent prosecutor knows
that the credibility of such testimony is stronger with
corroboration than without it, and will offer corroborative
evidence where it exists.

     Finally, the dissent contends that, by vacating the
conviction and remanding for a new trial, the court "does a
disservice to all future victims whose interests are represented
by imperfect prosecutors." Post at     . The prosecutor here
was not merely "imperfect" -- she twice told the jury that there
was important corroboration from the mother that was not in
evidence, and we are not sure that this error did not influence
                                                                     22


    2.   Expert testimony of treating physician.     The defendant

invites us to hold that "[n]o individual should ever be

permitted to testify in his or her capacity as both a treating

doctor and an expert on the subject of child sexual abuse,"

because such testimony inevitably has the effect on a jury of

improperly bolstering the victim's credibility.    He therefore

claims that the judge committed reversible error by not striking

Dr. Forkey's trial testimony that it is "very uncommon" to find

physical injury on the genitals of victims of sexual abuse, and

by admitting in evidence her opinion that "[t]he absence of

physical trauma is not inconsistent with abuse."     Where this

issue is likely to recur at a retrial of this case, we address

the defendant's claim of error.   See Commonwealth v. Tanso, 411

Mass. 640, 651, cert. denied, 505 U.S. 1221 (1992).

    Expert opinion testimony is appropriate and admissible

where an expert's "specialized knowledge would be helpful to the

jury."   Commonwealth v. Holley, 476 Mass. 114, 125 (2016),

quoting Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011).

See Mass. G. Evid. § 702(a) (2018).   "Under this principle, we

have held that testimony on the general behavioral

characteristics of sexually abused children may properly be the

subject of expert testimony because behavioral and emotional


the jury in their deliberations. It does not disserve future
victims for this court to order a new trial where we find
prejudicial error. Due process requires nothing less.
                                                                  23


characteristics common to these victims are 'beyond the jury's

common knowledge and may aid them in reaching a decision."

Commonwealth v. Federico, 425 Mass. 844, 847-848 (1997), quoting

Commonwealth v. Colin C., 419 Mass. 54, 60 (1994).   See, e.g.,

Commonwealth v. Day, 409 Mass. 719, 724 (1991) (expert testimony

concerning "battered child syndrome" admissible because

condition is not matter of common knowledge); Commonwealth v.

Mamay, 407 Mass. 412, 421 (1990) (expert testimony regarding

rape trauma syndrome admissible because syndrome is "beyond the

jury's common knowledge").

    Such expert testimony "must, however, be confined to a

description of the general or typical characteristics shared by

child victims of sexual abuse."   Federico, 425 Mass. at 848.   An

expert witness on sexually abused children "may not 'directly

opine on whether the victim was in fact subject to sexual

abuse,' or directly refer or compare the behavior of the

complainant to general behavioral characteristics of sexually

abused children."   Commonwealth v. Quinn, 469 Mass. 641, 647

(2014), quoting Federico, supra at 849.   See Commonwealth v.

Trowbridge, 419 Mass. 750, 759 (1995) ("[a]lthough expert

testimony on the general behavioral characteristics of sexually

abused children is permissible, an expert may not refer or

compare the child to those general characteristics").

"Consequently, an expert may not opine that the child's behavior
                                                                   24


or experience is consistent with the typical behavior or

experience of sexually abused children."   Quinn, supra.   "Even

where an expert does not directly compare the behavior of the

complainant to that typical of sexually abused children, the

expert's testimony may be inadmissible where a reasonable jury

would think the expert was implicitly vouching for the

credibility of the complainant."   Id., and cases cited.

    "The risk of improper comparisons between any general

behavioral characteristics of sexually abused children and a

particular complaining child witness is most acute when the

expert witness has examined or treated the child.   Testimony on

the general characteristics of sexually abused children by such

experts has been disallowed."   Federico, supra, and cases cited.

We have often warned of the danger of implicit vouching for the

credibility of the complainant where a treating physician or

psychologist in a child sexual abuse case testifies as an expert

witness, see Quinn, 469 Mass. at 647-648, and cases cited, and

at times have concluded that the implicit vouching arising from

such testimony was prejudicial error.   See id. at 650.    See also

Colin C., 419 Mass. at 60-61 (judge committed reversible error

by allowing child's treating physician to give opinion testimony

that child had been sexually abused); Commonwealth v.

Brouillard, 40 Mass. App. Ct. 448, 451 (1996), overruled on

another ground by Commonwealth v. King, 445 Mass. 217 (2005),
                                                                   25


cert. denied, 546 U.S. 1216 (2006) (reversal required where

child complainants' treating therapist "juxtaposed discussion of

general syndromes with specific descriptions of and opinions

about the complainants").   But we have not yet imposed the

blanket prohibition proposed by the defendant that would bar a

treating physician from offering any expert opinion in all child

sexual abuse cases.   We decline to do so here, given the nature

of the opinion offered by the treating physician.

    If, for example, Dr. Forkey had testified that, as a

treating physician, she had observed Camila display various

emotional, psychological, or behavioral characteristics, and

then offered an expert opinion about the emotional,

psychological, or behavioral characteristics of child victims of

sexual abuse, we would likely conclude, given the acute risk of

implicit vouching, that it was an abuse of discretion for a

judge to have permitted such opinion testimony.     See Quinn, 469

Mass. at 643, 644-646, 650 (expert opinion testimony was

improper vouching for victim's credibility where licensed

clinical social worker testified about victim's particular

emotional problems and subsequently opined about similar or

typical behavioral characteristics of child sexual abuse

victims).   And if, for example, Dr. Forkey had observed genital

injuries during her examination of Camila, and then offered an

expert opinion that Camila's genital injuries are consistent
                                                                  26


with sexual abuse, we also would have likely concluded that the

risk of implicit vouching was too great to permit the treating

physician to offer such an opinion.   See Trowbridge, 419 Mass.

at 760 (treating physician's testimony came "impermissibly

close" to endorsing child's credibility when she "testified that

the symptoms and physical condition of the child were consistent

with the type of nonviolent sexual abuse that the child alleged

in this case").   But where, as here, the treating physician

offered the expert opinion that it is "very uncommon" to find

physical injury on the genitals of victims of sexual abuse and

that "[t]he absence of physical trauma is not inconsistent with

abuse," and where the prosecutor made clear in eliciting these

opinions that her questions were not focused on the complainant,

but were "general questions about a patient that would come in

and see you, another child," we conclude that the risk of

implicit vouching is so small that the judge did not abuse his

discretion by not striking these opinions.5

     We have recognized on prior occasions that a medical expert

may be able to assist the jury by informing them that the

absence of evidence of physical injury "does not necessarily

     5 We recognize that the judge did not strike Dr. Forkey's
testimony that it is "very uncommon" to find physical injury on
the genitals of victims of sexual abuse after sustaining an
objection to this question only because he did not hear the
answer. But, where the answer was not struck, we treat it as if
the judge had denied the motion to strike after having heard the
answer, and review for an abuse of discretion.
                                                                    27


lead to the medical conclusion that the child was not abused,"

Federico, 425 Mass. at 851, because "[t]he jury may be under the

mistaken understanding that certain types of sexual abuse always

or nearly always causes physical injury or scarring in the

victim."   Id. at 851 n.13.   Where such opinion testimony is

admissible and where its probative value is to negate the

inaccurate inference that a child who was sexually abused would

have sustained some genital injury, we do not require the

Commonwealth to call a nontreating physician expert to offer

such an opinion.    See Commonwealth v. Quincy Q., 434 Mass. 859,

871-872 (2001) (judge did not abuse discretion in admitting

testimony of treating pediatrician that child's examination was

"completely normal" and that "majority of girls examined for

possible sexual abuse have 'normal' findings [i.e., no

recognizable traces of physical contact]").    As in Quincy Q.,

Dr. Forkey's "testimony 'did no more than give the jury

information concerning the medical interpretation of an absence

of any physical evidence of penetration; namely, such a finding

does not exclude that sexual abuse occurred.'"    Id. at 872,

quoting Commonwealth v. Colon, 49 Mass. App. Ct. 289, 293

(2000).    Such testimony does not implicitly comment on the

complainant's truthfulness; it says nothing more than that no

inference can be drawn from the absence of genital injury.
                                                                   28


Therefore, we conclude that the judge did not abuse his

discretion in not striking Dr. Forkey's opinion testimony.

     3.   Jury instructions.   A detective who investigated

Camila's allegations against the defendant interviewed Camila,

the defendant, Camila's mother, and Camila's sister, who was

present when Camila first disclosed that she had been assaulted.

The defendant contends that the detective's investigation was

inadequate and, during his cross-examination of the detective at

trial, he focused on the purported deficiencies in her

investigation.6   The defendant contends that the judge unfairly

limited the jury's consideration of his Bowden defense by

instructing the jury to decide the case based solely on the

evidence.   Because this issue may arise again at a retrial, we

address it now.   See Tanso, 411 Mass. at 651.

     We permit a defendant to elicit evidence of the purported

inadequacy of the police investigation because "the inference

that may be drawn from an inadequate police investigation is

that the evidence at trial may be inadequate or unreliable

because the police failed to conduct the scientific tests or to

     6 During cross-examination, the defendant questioned the
detective about the lapse in time between Camila's first
complaint and her interviews of the defendant and Camila's
mother. The defendant also questioned her decision not to take
a written statement from one of Camila's sisters, and not to
speak with Camila's other sister. The detective did not
recognize the name of Camila's father or attempt to speak to her
young cousins and friends who were present during some of the
gatherings in question.
                                                                    29


pursue leads that a reasonable police investigation would have

conducted or investigated, and these tests or investigation

reasonably may have led to significant evidence of the

defendant's guilt or innocence."    Silva-Santiago, 453 Mass. at

801.   See Mass. G. Evid. § 1107(a) (2018) (evidence of

inadequate police investigation may be admissible).    "A jury may

find a reasonable doubt if they conclude that the investigation

was careless, incomplete, or so focused on the defendant that it

ignored leads that may have suggested other culprits."    Silva-

Santiago, supra.    See Commonwealth v. Phinney, 446 Mass. 155,

165 (2006), S.C., 448 Mass. 621 (2007) ("Defendants have the

right to base their defense on the failure of police adequately

to investigate a murder in order to raise the issue of

reasonable doubt as to the defendant's guilt"); Commonwealth v.

Bowden, 379 Mass. at 486 ("[t]he fact that certain tests were

not conducted or certain police procedures not followed could

raise a reasonable doubt as to the defendant's guilt in the

minds of the jurors").

       We have long held that defense counsel in closing argument

is entitled to argue that the jury should find the defendant not

guilty because of the inadequacy of a police investigation.

See, e.g., Commonwealth v. Fitzpatrick, 463 Mass. 581, 597-598

(2012).   Here, in closing argument, defense counsel
                                                                   30


characterized the police investigation as "offensive" and asked

two rhetorical questions:

    "A person is charged with one of the most horrible things
    you can possibly be accused of, and no one in the family is
    interviewed, spoken to? If we're supposed to trust the
    police to get to the bottom of something and to be just as
    concerned with confirming that nothing happened, and maybe
    clearing someone, wouldn't you hope they would speak to a
    couple [of] witnesses?"

    The judge declined the defendant's request for a Bowden

instruction.   The defendant does not challenge the judge's

declination, recognizing that it is within the discretion of the

judge whether to provide the jury with a Bowden instruction that

explains to the jury the inferences they may draw if they were

to find the investigation inadequate.    See, e.g., Commonwealth

v. Durand, 475 Mass. 657, 674 (2016), cert. denied, 138 S. Ct.

259 (2017), quoting Commonwealth v. Lao, 460 Mass. 12, 23 (2011)

("a judge is not required to instruct on the claimed inadequacy

of a police investigation.   'Bowden simply holds that a judge

may not remove the issue from the jury's consideration'");

Commonwealth v. Williams, 439 Mass. 678, 687 (2003) (declining

to give Bowden instruction not error "because the giving of such

an instruction is never required").     See also Mass. G. Evid.

§ 1107(b) (2018) (giving of Bowden instruction is

discretionary).

    Instead, the defendant claims that the judge erred in

giving the jury the following facially proper instruction
                                                                  31


because, in the context of the evidence in this case, the

instruction unfairly limited the jury's full consideration of

the Bowden evidence and, effectively, negated the defendant's

Bowden argument:

    "You are not to decide this case based on what you may have
    read or heard outside of this courtroom. You are not to
    engage in any guesswork about any unanswered questions that
    remain in your mind. You should not consider anything I
    have said or done during the trial, in ruling on
    objections, or in comments to the attorneys, or in
    questions to witnesses, or in setting forth the law in
    these instructions, as any indication of my opinion as to
    how you should decide the case. In short, you are to
    confine your deliberations to the evidence and nothing but
    the evidence."

    "You are to decide what the facts are solely from the
    evidence admitted in this case, and not from suspicion or
    conjecture. The evidence consists of the testimony of
    witnesses as you recall it, any documents or other things
    that were received into evidence as exhibits. You will
    have all of the exhibits with you in the jury room. You
    alone will decide the weight -- that is, the value -- that
    they deserve to receive in helping you make your ultimate
    judgment about whether the Commonwealth has proved its
    case" (emphases added by defendant).

    We recognize that, in some circumstances, a facially proper

jury instruction that the jury should decide the case based on

the evidence rather than guesswork or conjecture may reasonably

be understood by the jury to negate or undercut a defendant's

proper Bowden argument, such as where the judge interrupts

defense counsel's Bowden argument to give the instruction, or

where the judge furnishes this instruction in response to a

question from the jury about a Bowden issue.   See, e.g.,
                                                                   32


Commonwealth v. Gilmore, 399 Mass. 741, 746 (1987) ("The judge

twice interrupted defense counsel's closing argument to instruct

the jury that they were to consider only 'the evidence

introduced in fact in this case.'   Not only did the judge

prevent defense counsel from pursuing a permissible line of

argument, but he . . . in effect instructed the jury to

disregard defense counsel's immediately preceding argument");

Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 700 (2001)

("[t]he judge's response to the jury's question, refusing to

answer the question concerning admissibility and instructing the

jury to confine their consideration to the evidence that was

presented, in context could only have been understood by the

jury as a ruling that the police officers' failure to record the

transaction or to photograph the taxicab driver or to record his

license and taxicab numbers, were not an appropriate ground upon

which to build a defense and were not to be considered by them."

    Here, however, defense counsel proceeded through her

closing argument uninterrupted, and the judge's instructions

were not issued in response to any specific questions from the

jury.   Rather, this instruction constituted a small part of the

judge's final jury instructions that were given after the

attorneys had presented their respective closing arguments.     In

light of the context in which these instructions were given,

there is nothing to suggest that these instructions "may have
                                                                  33


been construed by the jury as requiring them to reject the

[Bowden defense] suggested by defense counsel."   Commonwealth v.

Smith, 49 Mass. App. Ct. 827, 832 (2000).   Where a judge, in his

or her final jury instructions, tells the jury to decide the

case based solely on the evidence rather than on guesswork or

conjecture, it is unlikely that the jury will hear that

instruction as a derogatory comment on the defendant's Bowden

argument.   Moreover, the permissible inference from "police

failure to take certain investigatory steps, as it relates to

the reliability of the Commonwealth's case," rests on evidence

actually presented regarding the inadequacy of the police

investigation, and "is not intended to permit jurors to

speculate about the results of investigative steps not taken."

Commonwealth v. Tolan, 453 Mass. 634, 652 (2009).   On retrial,

however, if the judge decides not to give a Bowden instruction

as part of the final jury instructions, it would be prudent to

omit from the instructions the sentence, "You are not to engage

in any guesswork about any unanswered questions that remain in

your mind," to avoid the risk that the jury may interpret this

sentence as undercutting the defendant's Bowden argument.

    Conclusion.   For the reasons stated above, we vacate the

defendant's convictions and remand the case to the Superior

Court for a new trial.

                                    So ordered.
    LOWY, J. (concurring, with whom Lenk and Budd, JJ., join).

I agree with the court that the prosecutor's closing argument

constituted prejudicial error, requiring reversal of the

defendant's conviction.    I do so not because this is a sexual

assault case, nor because the conviction rests on the testimony

of a young child.     I do so because jurors crave corroboration,

and the prosecutor's closing argument included powerful

statements corroborating the child's testimony that were not

offered in evidence at trial.    Specifically, the prosecutor

inaccurately argued that the victim's mother had testified that,

upon returning from spending time with the defendant, the victim

told her mother that she felt "disgusting" and wanted to take a

bath.   Although it appears that the mother would have so

testified had she been asked, the prosecutor did not elicit this

testimony on direct examination.     I cannot say with assurance

that this remark in the prosecutor's closing, referencing a

statement not admitted in evidence, could not have influenced

the jury's verdict.

    I write separately because I agree with many of the

concerns raised by Justice Cypher in her dissent.     I believe

that, unfortunately, little has changed since we noted in

Commonwealth v. King, 445 Mass 217, 238-239 (2005), cert.

denied, 546 U.S. 1216 (2006) that:
                                                                    2


    "Some jurors may continue to harbor prejudicial
    misperceptions about the nature of rape and rape
    allegations, including that complainants who wear
    revealing clothing, consume drugs or alcohol, or have
    unorthodox or promiscuous lifestyles cannot be 'real'
    victims of rape; that forced sex by a spouse or a past
    partner does not constitute 'real' rape; and that
    false accusations of sexual assault are more frequent
    than those of other violent crimes."

    The dissent's clarion call cautioning trial and appellate

courts to evaluate the testimony of sexual assault victims no

more critically than victims or witnesses of other crimes is

well taken.   The mistreatment of victims of sexual assault is

still present in many aspects of our society today.    It is

imperative that nothing in our decision today be interpreted as

endorsing antiquated notions of what makes an alleged victim of

rape credible.

    Our society's normative values concerning sexual

relationships have evolved and are varied and complex.    All too

often, victims of sexual assault are forced to endure further

trauma in their pursuit of justice.   This trauma goes beyond

having to testify about the crime committed.   A victim of sexual

assault is often scrutinized in a manner that is far more

pervasive than victims of almost any other crime.     For the

victim of a robbery, their privileged medical or psychiatric

records are not usually subject to scrutiny; their previous

personal relationships, conduct, and the most intimate details

of their life are not often topics of cross-examination.
                                                                     3


However, this is the reality for many victims of sexual assault;

they are treated with more distrust than victims of other

crimes.    The dissent's emphasis on some of the troubling aspects

of sexual assault prosecutions -- a lingering and unacceptable

vestige of our society's history of gender inequality –- raises

concerns that we must not ignore and that should be kept firmly

in mind.
     CYPHER, J. (dissenting, with whom Kafker, J., joins).       This

case involves a prosecutorial error, preserved by objection, and

calls upon the court to determine that error's impact.    When

assessing such an error's effect, the court frequently evaluates

the strength of the Commonwealth's case, absent the error, to

determine whether "the error did not influence the jury, or had

but very slight effect."    Commonwealth v. Hrabak, 440 Mass. 650,

656 (2004), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).    In cases such as this, where the victim of the alleged

crime testifies, the court naturally evaluates her testimony

when considering whether the Commonwealth's case was

independently strong enough without the prosecutor's mistake.       I

disagree with the court about the importance of the undisputed,

consistent, and clear testimony of a survivor of sexual assault

and would conclude that a prosecutorial error, even if

preserved, does not necessarily erase the merits of a strong

case.     Because a long line of cases arguably evaluates the

testimony of survivors of sexual assault more critically than

testimony of victims and witnesses of other kinds of crimes,

which does a disservice to all future victims whose interests

are represented by imperfect prosecutors,1 I dissent.


     1 The court disputes this characterization of the
prosecutor's performance, alleging that "she twice told the jury
that there was important corroboration from the mother that was
not in evidence." Ante at note 4. A close reading of the
                                                                    2


    Perhaps the ease with which courts have dismissed the value

of sexual assault victim testimony has its roots in Sir Matthew

Hale's Seventeenth Century adage, describing rape as "an

accusation easily to be made and hard to be proved, and harder

to be defended by the party accused, tho ever so innocent."     See

Anderson, The Legacy of the Prompt Complaint Requirement,

Corroboration Requirement, and Cautionary Instructions on Campus

Sexual Assault, 84 B.U. L. Rev. 945, 948 (2004).   See id. at 949

("Many jurisdictions responded to Hale's admonition by requiring

courts to issue instructions cautioning juries to regard the

complainant's testimony in rape cases with particular

suspicion").   Hale's admonishment accompanied the "hue and cry"

requirement, mandating that courts credit a victim's complaint

only if made immediately following an assault.   Torrey, When

Will We Be Believed?   Rape Myths and the Idea of a Fair Trial in

Rape Prosecutions, 24 U.C. Davis L. Rev. 1013, 1041 (1991).

Hale's words of caution about the testimony of rape complainants

were imported into the American legal system.    Anderson, supra

at 960.   Every American jurisdiction previously required



record shows that the prosecutor's error occurred only once,
during the disputed closing argument. The court
mischaracterizes the prosecutor's opening statement. There, the
prosecutor mentioned Camila's desire to take a bath after the
first assault, during a section in which she previewed Camila's
testimony, not any evidence to be offered by Camila's mother.
Camila testified in accordance with the prosecutor's opening
statement.
                                                                    3


evidence that the victim promptly reported the assault before

permitting a prosecution to proceed or upholding a conviction.

DuBois, A Matter of Time:   Evidence of a Victim's Prompt

Complaint in New York, 53 Brook. L. Rev. 1087 n.2 (1988).     See

Commonwealth v. Izzo, 359 Mass. 39, 44 (1971) , quoting Glover

v. Callahan, 299 Mass. 55, 57 (1937) (Commonwealth has "duty" to

demonstrate victim expeditiously reported sexual assault because

"where a female witness testifies as to a rape or similar

assault upon her the mere absence of evidence of an earlier

complaint discredits her.   A legitimate argument against her

credibility may be made solely on the basis of the absence of

evidence of such a complaint").

     Massachusetts has since departed from some of those

troubling requirements of sexual assault prosecutions, see

Commonwealth v. King, 445 Mass. 217, 242 (2005), cert. denied,

546 U.S. 1216 (2006),2 but remnants of these philosophies clearly

survive.   When evaluating the Commonwealth's evidence in the

face of an error in cases without sexual assault charges, our

jurisprudence frequently credits testimony of witnesses and

victims.   See Commonwealth v. Stevens, 379 Mass. 772, 774 (1980)

(case against defendant for armed assault with intent to murder

     2 We preserve the opportunity for the Commonwealth to
introduce first complaint evidence "consistent with our focus on
the evidence pertaining to the facts and circumstances
surrounding the complainant's initial report of the alleged
crime." King, 445 Mass. at 242.
                                                                   4


and armed robbery, based on testimony of victim, was "strong");

Commonwealth v. Walker, 421 Mass. 90, 98-99 (1995) (affirming

robbery conviction despite multiple improper comments by judge

and prosecutor because Commonwealth made "strong" case where

only evidence was victim's testimony).   See also Commonwealth v.

Barbosa, 463 Mass. 116, 118 (2012) (based in eyewitness

testimony, case against defendant for murder in first degree and

multiple firearms offenses was strong, despite all identifying

witnesses being impeached with prior inconsistent statements and

judge erroneously admitting hearsay to corroborate testimony of

Commonwealth's witness); Commonwealth v. Rollins, 441 Mass. 114,

118-119 (2004) (case against defendant for operating motor

vehicle while intoxicated, where Commonwealth introduced only

testimony of police officer witnesses, was strong).    Yet when

performing the same analysis in cases of sexual assault, the

testimony of victims appears to be given comparably less weight.

See Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005) (closing

argument error in child rape case was prejudicial where victim

was only witness to abuse); Hrabak, 440 Mass. at 656

(Commonwealth's case was not strong enough to withstand error

where six year old anal rape victim's testimony was only

evidence); Commonwealth v. Scheffer, 43 Mass. App. Ct. 398, 401

(1997) (reversing conviction for rape of child where error

"might loom less large in a case where there was anatomical or
                                                                   5


percipient witness evidence [from other than the purported

victim] that made the government case of sexual abuse

overwhelming"); Commonwealth v. LaCaprucia, 41 Mass. App. Ct.

496, 502 (1996), S.C., 429 Mass. 440 (1999) (case against

defendant in child sexual assault case was not strong where

there was limited physical evidence, so victims' statements were

central to Commonwealth's case).   Cf. Commonwealth v. White, 475

Mass. 724, 740 (2016) (recognizing that corroboration

requirement in G. L. c. 277, § 63, "sets a high bar for

prosecuting sexual offenses against children that are alleged to

have occurred many years before").   See Raitt, Judging

Children's Credibility -- Cracks in the Culture of Disbelief, or

Business as Usual?, 13 New. Crim. L. Rev. 735, 737 (2010)

("Concern over children's reliability as witnesses dates back

centuries, and this concern is compounded when the child is a

complainant of a sexual offense").   The court's conclusion is

tinged with this legacy.

     I would eschew the entrenched habits of excess suspicion of

rape victims and affirm this conviction.3   When properly

evaluating the value of the victim's testimony, it is clear the

error was not prejudicial.   "[T]he prosecutor's improper

statement warrants reversal only if it prejudiced the defendant


     3 Of course, we do not presume a person is guilty based on a
mere untested accusation.
                                                                      6


in light of the prosecutor's entire argument, the trial

testimony, and the judge's instructions to the jury."

Commonwealth v. Burgos, 462 Mass. 53, 72, cert. denied, 568 U.S.

1072 (2012).    Within that context, we also consider "the

persistence or flagrancy of the remarks."    Commonwealth v.

Clary, 388 Mass. 583, 590–591 (1983), quoting Commonwealth v.

Dougan, 377 Mass. 303, 312 (1979).    Approximately seven

transcribed pages into closing argument, the Commonwealth sought

to remind the jury of testimony of some sources of corroboration

of the details surrounding the allegations of assault.      At that

time, the prosecutor told the jury that Camila's mother had

remembered Camila coming home from being out with the defendant

and wanting to take a bath.    Although Camila had testified to

this, the prosecutor had failed to elicit this testimony from

Camila's mother.

     This error, properly considered in its context, "did not

influence the jury, or had but very slight effect."     Hrabak, 440

Mass. at 656, quoting Flebotte, 417 Mass. at 353.     This error

was far from the persistent or flagrant comments that

necessitate upending a jury verdict.    Camila's testimony was

strong evidence against the defendant and should be treated as

such.    She described, in detail, each incident of abuse.4    Her


     4 The defendant's cross-examination focused on the happy
relationship Camila had with her family, including the
                                                                    7


testimony alone was enough evidence to merit a conviction.    The

jury listened to all of her testimony, just as they listened to

the judge's repeated and clear instructions about argument not

being evidence.5   "[W]e must and do recognize that closing



defendant, and Camila's parents' gentle style of discipline.
Defense counsel contended in closing argument that if the
defendant were abusing Camila, her family would have noticed,
and she would have felt safe coming forward because her parents
did not hit her or often shout at her. Although Camila did not
disclose immediately, she did, in fact, disclose the abuse to
her family.

     5 During jury empanelment, the judge told the jury that they
would be deciding the case solely on the evidence and that
evidence consisted of witness testimony, exhibits, and factual
stipulations alone. After jury empanelment, the judge reminded
the jury that they would decide the case "exclusively on the
evidence." At the beginning of trial, the judge told the jury
that statements from the attorneys are not evidence. Prior to
closing argument the judge instructed the jury that a "closing
statement is not itself evidence, nor is it a substitute for the
evidence. The evidence in this case is closed."

     After closing argument, the defendant requested that the
judge immediately remind the jurors that their memory of the
evidence controls. The judge declined because that instruction
was "adequately covered in the [jury] charge as a whole." The
judge then immediately instructed the jury, beginning the charge
by reminding the jury that they are "the sole and exclusive
judges of the facts." While elaborating on how the jury may
find facts, the judge reminded the jury that "opening statements
and the closing arguments of the lawyers are not a substitute
for the evidence."

     Although the judge issued that instruction further from the
prosecutor's closing argument than the defendant wished
(approximately five transcribed pages separate the defendant's
request and the judge's reminder that closing arguments are not
evidence), its content satisfied the defendant's request. "In
light of the judge's repeated instructions that the closing
arguments do not constitute evidence, any damage to the
defendant was sufficiently repaired." Commonwealth v.
                                                                   8


argument is identified as argument, the jury understand[] that,

instructions from the judge inform the jury that closing

argument is not evidence, and instructions may mitigate any

prejudice in the final argument."   Commonwealth v. Kozec, 399

Mass. 514, 517 (1987).   See Commonwealth v. Hammond, 477 Mass.

499, 507-508 (2017) (affirming convictions of raping three

children, despite prosecutor's two improper statements in

closing argument, where judge gave curative instructions when

charging jury).

    Moreover, the prosecutor's erroneous statement was an

insignificant portion of her closing argument, occupying a mere

five lines out of approximately nine transcribed pages.      Compare

Clary, 388 Mass. at 593 (reversing where "a fact not proved

directly or by fair inference . . . was used as a focal point in

the prosecutor's argument"), with Commonwealth v. Wood, 469

Mass. 266, 286 (2014) ("[W]e cannot say that the error, taken in

context, made a difference in the jury's conclusion.   It was a

single statement made in the course of a lengthy closing

argument").   The prosecutor discussed other evidence from

Camila's mother's testimony corroborating that the defendant



O'Connell, 432 Mass. 657, 659 n.3 (2000). See Commonwealth v.
Dagley, 442 Mass. 713, 725 (2004), cert. denied, 544 U.S. 930
(2005) ("That the judge's final instruction did not include any
express correction of the prosecutor's mischaracterization does
not mean that the instruction was inadequate to cure any
confusion caused by that mischaracterization").
                                                                   9


would pick up Camila from school, but that she wanted that to

stop, and that she came home in the middle of the night on New

Year's Eve.6   The prosecutor also reminded the jury that the

defendant himself told police that Camila would sleep at his

house and he would pick her up from school, further verifying

the contextual details of Camila's testimony.   Compare

Commonwealth v. Gomes, 443 Mass. 502, 510 (2005) ("improper

subject of argument" was "isolated" "slip of the tongue" and did

not require reversal), with Beaudry, 445 Mass. at 585-586

(prosecutor's comment that child victim was credible because her

sexual knowledge was inappropriate for her age and must have

been result of defendant's abuse was unsupported by record and

could have influenced jury's decision about all allegations).

The court's focus on Camila not displaying the behavioral

characteristics of a "normal" child who has suffered abuse

creates a de facto corroboration requirement, necessitating a

     6 The court dismisses the value of the testimony
corroborating the context of Camila's allegations because such
behavior is "hardly surprising or noteworthy" for a child of
Camila's age. Ante at     . Considered in isolation, any fact
about a child's behavior can seem insufficient to support
allegations of abuse, especially where such evaluations include
the court taking judicial notice of what is normal for a child
of a certain age. Even the recognized signs of abuse, which the
court notes are absent, such as nightmares, bed-wetting,
difficulty in school, or running away from home, can be
interpreted in isolation to have innocent explanations. Ante at
. When considered in the full context of allegations of sexual
abuse, however, behavior that can be otherwise typical for some
children can inform our understanding of a particular child
victim's testimony.
                                                                   10


child without physical symptoms or eyewitnesses (as already

discussed, each is uncommon in child sexual assault cases) to

display enough emotional trauma to be credible.   Beyond the

obvious issues with demanding a certain type of behavior from

victims of these crimes, this requires a child to walk a

tightrope of being behaviorally symptomatic enough to be

believed, but not too emotional so as to be deemed unreliable.

See Commonwealth v. Quinn, 469 Mass. 641, 650 (2014) (vacating

child rape conviction where "Commonwealth's case rested almost

entirely on the credibility of the emotionally troubled

victim").   See also Raitt, supra at 737 ("The concerns affecting

children that cloud [child rape cases] and evidence are very

similar to the suspicion expressed toward all victims of sexual

assault, which is made explicit through expectations that the

'righteous' victim will be of impeccable character, make the

complaint promptly, exhibit tangible injuries, and provide a

full and unswerving account").   Even if the court's devaluation

of other sources of corroboration is accurate, this nonetheless

does nothing to minimize the strength of Camila's testimony as

the core of the Commonwealth's case.   The Commonwealth presented

a case that was sturdy without the addition of the prosecutor's

inaccurate closing argument.

    This case hews closely to a common pattern of child sexual

assault cases, where the assailant preys on the child in
                                                                    11


secluded, controlled environments, leaving no other eyewitnesses

to the actual acts of abuse.    See Buller, Fighting Rape Culture

with Noncorroboration Instructions, 53 Tulsa L. Rev. 1, 5 (2017)

(large majority of sexual assault cases have no third-party

eyewitnesses); Walsh, Jones, Cross, & Lippert, Prosecuting Child

Sexual Abuse:   The Importance of Evidence Type, 56 Crime &

Delinquency 436, 438 (2010) ("[c]hild sexual abuse is distinct

from other types of crimes because multiple forms of convincing

evidence are often lacking").   See also Beaudry, 445 Mass. at

585 (noting, in case without physical evidence or eyewitnesses,

"[a]s is often true in cases involving sexual abuse, the trial

was a battle of the credibility of the witnesses").     Where no

physical evidence is available,7 it is the victim's testimony

alone that stands as direct evidence of the assault.8    Camila's


     7 See T.J. Buller, Fighting Rape Culture with
Noncorroboration Instructions, 53 Tulsa L. Rev. 1, 5-6 (2017)
(evidence of physical injury from sexual assault is uncommon and
"the odds of finding any physical trauma decreases dramatically
following the first twenty-four hours after an attack").

     8 The persistent lack of physical evidence and regular
disbelief of victims necessitates that prior bad acts be
admissible in cases of rape and sexual assault. See Fed. R.
Evid. 413 & 414; Larsen, Sexual Violence is Unique: Why
Evidence of Other Crimes Should be Admissible in Sexual Assault
and Child Molestation Cases, 29 Hamline L. Rev. 177, 207-208
(2006) ("perceived lack of credibility demands a rule that
attempts to equalize the rights of the victim with the rights of
the accused. The credibility problem becomes particularly
important given that many victims will refrain from reporting
the crime since they are perceived as unbelievable"). Such a
change would be an important, but not radical, change in our
                                                                12


testimony, as the only percipient witness to these crimes,

deserves no less value than the testimony of any other victim in

a case not involving sexual assault.

    Given the entirety of the evidence and the minor role the

prosecutor's misstatement played in closing argument, I conclude

that the error could not have influenced the jury's decision.   I

dissent.




current case law. See e.g., Commonwealth v. Helfant, 398 Mass.
214, 225-226 (1986) (affirming rape conviction where two people
testified that defendant sexually assaulted them in
circumstances similar to victim's allegations because prior acts
were probative of defendant's common pattern of conduct and
probative value outweighed prejudice to defendant); Commonwealth
v. King, 387 Mass. 464, 469, 470 (1982) (affirming conviction of
rape of child where Commonwealth introduced evidence of
defendant's uncharged rape of child other than victim because
evidence showed common pattern or course of conduct toward two
children and was "sufficiently related in time and location to
be logically probative"); Commonwealth v. Lanning, 32 Mass. App.
Ct. 279, 283 (1992) (affirming convictions of indecent assault
and battery on child and rape of child where children other than
victims testified about defendant's prior acts, because "the
evidence corroborated the victims' testimony and showed a common
scheme and pattern of behavior").
