Heard: December 12, 2016.
found and returned in the Superior Court Department on
September 5, 2013.
cases were tried before Joshua I. Wall, J.
P. Vander Salm for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Present: Hanlon, Carhart, & Neyman, JJ. 
jury trial, the defendant was convicted of four counts of
rape, in violation of G. L. c. 265, § 22(b), and one
count of assault and battery in violation of G. L. c. 265,
§ 13A. He appeals, arguing that his convictions
should be reversed because evidence was admitted improperly
in violation of the first complaint doctrine. See Mass. G.
Evid. § 413 (2017). This error, he argues, combined with
what he describes as inadequate limiting instructions,
resulted in prejudicial error. For the reasons that follow,
jury could have found the following facts. In September,
2012, the victim met the defendant at a "club" in
Lawrence; they had a "whirl wind romance really. He said
all the right things, and [she] fell in love with him within
a week." A little more than a month into the
relationship, however, things began to change. The defendant
began to drink heavily, and, when he was drinking, he became
rude and mean to the victim, as well as controlling --
particularly in public.The victim would sometimes not see the
defendant for days at a time when he was drinking; he would
"basically disappear" and she would "end up
having to find him." During this time, the victim was
living in North Andover with her three children, and the
defendant was living on a friend's couch. Despite the
defendant's behavior when he was drinking, their
relationship continued because, according to the victim, she
was in love with him and he did not behave that way all the
January 1, 2013, rape.
Year's Eve, 2012, the relationship between the victim and
the defendant was "rocky, " but they had made plans
to go out and celebrate that evening. The victim picked up
the defendant from work at approximately 4:00 P..M. and left
him at his friend's house to shower and dress.
Afterwards, she was unable to get in touch with him during
the rest of the evening; she believed that he had turned his
cellular telephone off because the calls went directly to
voice mail. Eventually, at approximately 1:00 A.M. on January
1, she found him at his sister's house in Haverhill,
sitting on the porch.
victim was upset and angry, and the "clearly drunk"
defendant apologized and told her that his telephone had
died. He invited her into the house to talk and, when they
went inside, no one appeared to be home. They went into his
mother's bedroom and the victim was "crying
still." The defendant then pulled down his pants
and instructed the victim to "lick his ass, "
saying that, if she would not do it, he would find someone
else. The victim testified that nothing like that had
happened before in their relationship and she told him
"to go ahead and find somebody else."
stood up to walk out the door and the defendant grabbed her,
pulled her underwear and pantyhose down, turned her around
and threw her to the ground face down. He shoved her face
into the carpet and put his penis into her vagina. The victim
told him to stop, that she could not breathe, and that he was
hurting her. The defendant responded that she was his and he
would do whatever he wanted. After ejaculating inside of her,
the defendant fell asleep on his mother's bed. The victim
eventually fell asleep at the end of the bed still
crying. The next day, the victim saw on the
defendant's cellular telephone that he had been
conversing with another woman the previous night when he was
supposed to be out with her; she then ended the relationship.
The victim did not report the rape to the police at that time
because she "didn't really think anything at the
time of it. [They] had had rough sex before." She
testified, "It just didn't -- I don't know.
Nothing really clicked at the time."
July 8, 2013, rape.
February, 2013, the victim and the defendant resumed their
relationship. On May 1, 2013, they moved together into
an apartment in Haverhill; the victim's two youngest
children moved in with them full time by July, 2013. Shortly
thereafter, the defendant began going out frequently and
coming home drunk early the next morning. During the evening
of July 7, 2013, the victim telephoned the defendant and sent
text messages to him, but she received no response; she then
sent him a text message telling him not to come home because
she was tired of his behavior -- specifically, going out
every night. The defendant responded that he would leave when
he was ready.
early morning hours of July 8, 2013, while the victim and her
daughters were sleeping, the defendant came home drunk and
attempted to get into the bed with the victim. As she was
trying to push him out, the defendant slapped her in the
face, and she slapped him back. The defendant then straddled
her, sitting on her stomach, pinning her arms down with his
knees, and "started hitting [her] over and over and over
again" in the face, calling her a "slut, " and
saying that she "deserved it." The victim was
crying and telling the defendant to stop; at some point, she
was able to get her hand free and scratch him. The defendant
then flipped her onto her stomach and put his penis in her
vagina; he was holding the victim's hands above her head
with one hand, with his other hand around her neck. While he
was raping the victim, the defendant was telling her that, if
she did not say she liked this treatment, he would hit her
again. The victim did not report the incident to the police
at that time because, she testified, she loved him and
"probably would have tried to work anything out with
him. And . . . [she] wanted to see if when he sobered up, it
July 11, 2013, rapes.
nights later, the defendant was out all night and came home
at 6:00 A.M. with his friend Adrian. They were both drunk,
and Adrian slept on the living room couch. In response to the
defendant's demand, the victim got Adrian a blanket and
pillow, and then went back into their bedroom where she had
been asleep. The defendant came into the bedroom where the
victim was sitting on the edge of the bed; he then forced his
penis into her mouth, pushing the back of her head forward
and up and down with his hands. The victim was able to pull
away, and then ran to the bathroom and vomited.
the victim returned to the bedroom, the defendant told her to
take off her clothes. She told him that she did not feel
well; he responded that if she did not do so, he would. In
response, she began, hesitantly, to remove her top, but the
defendant became impatient and grabbed the victim. He pulled
off her pants so that she was lying "sideways" on
the bed; he then put his penis into her vagina while keeping
one hand around her neck. Afterwards, the defendant went out
to the living room and fell asleep on the other couch. The
victim did not at that time call the police because she
"didn't look at it as rape still at that
that morning when the defendant woke up, the victim told him
to pay her his half of the rent and to move out. The
defendant started to put his clothes in a laundry basket to
take with him; the victim sat in the basket so that he could
not take his belongings until he paid her. Instead, the
defendant threw the basket, with the victim in it, across the
room causing the victim to hit her head on the door frame and
her knee on the wall. They continued to argue, and the
defendant called the police, saying, according to the
victim's testimony, that "[i]t's going to be so
funny watching you get taken away from your kids, I'm
going to sit there and smile and laugh as you're being