Heard: April 8, 2019.
Indictments found and returned in the Superior Court
Department on March 9, 2016. The cases were tried before
Edward P. Leibensperger, J.
Visone for the defendant.
Teo, Assistant District Attorney (Sarah McEvoy, Assistant
District Attorney, also present) for the Commonwealth.
in the Superior Court convicted the defendant on two
indictments charging him with rape of a child aggravated by
age difference. The victim, whom we shall call Alice, is
the daughter of the woman with whom the defendant was living.
One indictment charged rape by natural sexual intercourse.
The other charged rape by unnatural sexual intercourse.
defendant raises three issues on appeal. First, he contends
that the judge erred by admitting testimony under the first
complaint doctrine from a witness who was not the first
person to hear of the rapes. Second, the defendant claims the
evidence was insufficient to support his conviction on the
indictment charging unnatural sexual intercourse because the
Commonwealth failed to prove the element of penetration. That
indictment alleged that the defendant "did unlawfully
have unnatural sexual intercourse with and abuse [Alice] by
penetrating the mouth of [Alice] with his ejaculate."
Third, he asserts the prosecutor improperly vouched for
Alice's credibility during her closing argument. We
The Commonwealth's case.
summarize the evidence presented in the Commonwealth's
case-in-chief in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). Alice was living in an apartment in
the Dorchester section of Boston with her mother and her
three sisters when the defendant began to sexually abuse her.
Alice was eleven years old at the time. The family was under
significant stress because Alice's mother was ill and not
able to work, Alice's thirteen year old sister was
diagnosed with a neurodegenerative disorder, and Alice's
younger sisters, five year old twins, needed supervision and
care. The defendant, who had been involved in a romantic
relationship with Alice's mother for about ten years, was
the family's main source of financial support.
testified that the defendant sexually abused her on three
occasions while she was in the sixth grade. On the first
occasion, Alice found herself home alone with the defendant
and her older sister one day after school. At the time, the
sister could not walk without assistance. The defendant took
Alice to the bedroom he shared with Alice's mother and
began to fondle her. He touched Alice's breasts and
kissed her on the lips.
second incident started the same way. Alice and her older
sister were home alone with the defendant; the defendant took
Alice into the bedroom where he touched her breasts and
kissed her. This time, however, the defendant proceeded to
remove Alice's pants and underwear and "put"
her on the bed. He then raped Alice by inserting his penis
into her vagina. Next, he told Alice to get onto the floor on
her knees and open her mouth. When she did so, he ejaculated
into her mouth. Alice testified that the defendant "put
[e]aculate] in my mouth." She then "threw up [the
ejaculate] in the bathroom." The defendant told Alice
not to tell anyone and suggested that the family would be
ashamed of her. Alice felt guilty and kept silent.
third incident occurred when Alice's mother and older
sister were in California, where the older sister was
receiving experimental medical treatment, and Alice and her
younger sisters were staying with an aunt. One of the sisters
became ill and needed medicine from home. The defendant drove
Alice from her aunt's home to the family's apartment
to retrieve the medicine. While the defendant and Alice were
alone in the apartment, the defendant pulled Alice into the
mother's bedroom and had sexual intercourse with
This time the defendant ejaculated onto his hand. The
defendant told Alice not to tell anyone and instructed her to
tell her aunt that they were late due to traffic and because
they had trouble opening the door of the apartment. Alice
followed the defendant's instructions.
continued to remain silent about the sexual abuse until the
end of the school year when she met her mother's younger
brother, Manuel Valdez. Valdez had just moved to Boston and
met Alice for the first time. Alice sent Valdez a number of
graphic text messages telling him that she wanted "to
have sex" with him. She also wrote that she wanted to
"suck him off," "twerk in front of him,"
"do doggie," and "do it in the bathroom."
Valdez was taken aback and asked Alice how she knew about
such things. Alice responded with a text message stating that
she "had sex" with the defendant. Valdez sought
advice from his brother, Cristino Jimenez Medina,
showed him the text messages. At some point, Alice's
mother was told about the text messages and Alice's