MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of rape and abuse of a child under the age of sixteen, aggravated by more than a five-year age difference, G. L. c. 265, § 23A (a); indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; indecent exposure, G. L. c. 272, § 53; and dissemination of matter harmful to a minor, G. L. c. 272, § 28.
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On appeal, the defendant argues that (1) the trial judge erred in allowing the prosecutor to elicit testimony from the victims mother (as opposed to an expert) making a temporal connection between the victims physical ailments and the defendants presence in the home, and (2) the trial prosecutor impermissibly mischaracterized the evidence in her closing argument and improperly vouched for a witnesss credibility. We affirm.
Evidence of physical ailments without expert opinion. On direct examination of the victims mother, the prosecutor elicited testimony that the victim suffered from frequent stomachaches and “bladder issues” from April 2014 to August 2016, which was the period during which the defendant lived with the victim and the victims mother. The mother testified that the victim frequently experienced stomach pain and a burning sensation and discomfort with her bladder that would “accompany the stomachaches.” The mother also testified that, despite numerous visits to the victims pediatrician, no one was able to diagnose the cause of the victims discomfort. The victim was eventually referred to a hospital to see a stomach doctor, who prescribed a stool softener. Nevertheless, the victims symptoms continued. At this point, the prosecutor asked whether the victims symptoms eventually subsided, and defense counsel objected on the ground that, without expert testimony, the Commonwealth should not be permitted to introduce testimony suggesting that the victims stomachaches and bladder issues were physical manifestations of anxiety, or to suggest that those symptoms subsided once the defendant left the home. The judge permitted the prosecutor to ask the victims mother when, in her memory, the victims physical ailments subsided. The mother then testified that the victims stomachaches stopped in August of 2016, which was when the defendant left the home. The mother said nothing about the bladder issues.
On appeal, the defendant argues it was reversible error to allow this testimony about the victims stomachaches and bladder pain to be offered without any expert opinion testimony as to the possible causes of these symptoms. Because the defendant timely objected, we review any error under the prejudicial error standard.
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See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). This standard involves “a two-part analysis: (1) was there error; and (2) if so, was that error prejudicial.” Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). An error is not prejudicial if it “did not influence the jury, or had but very slight effect.” Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 869 (2010), quoting Cruz, supra at 591.
“Expert testimony is necessary where proof of medical causation lies outside the ken of lay jurors.” Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 351 (2017), quoting Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012). Where, however, the determination of causation lies within “general human knowledge and experience,” no expert testimony is required. Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 236 n.6 (2005), quoting Lovelys Case, 336 Mass. 512, 516 (1957).
We accept the proposition that it is within the common knowledge and experience of lay jurors that children may exhibit stomachaches as a result of anxiety or distress. See Commonwealth v. Hudson, 417 Mass. 536, 537-538 (1994) (reciting lay testimony from mother of minor sexual assault victim about victims frequent stomachaches and nightmares). But the victims “bladder issues,” which included burning and discomfort, stand on different footing because the jury would not have been able to “draw a causal connection between the alleged abuse by the defendant and the [victims bladder issues] without engaging in ‘speculation or conjecture.’ ” Hamel, supra at 351, quoting Commonwealth v. Scott, 464 Mass. 355, 362 (2013). Thus, the mothers testimony regarding bladder issues should not have been admitted.
We thus ask whether the defendant was prejudiced by the error. Cruz, 445 Mass. at 591. In making this determination, we examine factors such as “the importance of the evidence in the prosecutions case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; ․ and the weight or quantum of evidence of guilt.” Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 560 (2015), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Here, apart from the single reference during the mothers direct examination, the victims bladder problems were not again mentioned, either in questioning, testimony, or closing arguments. The Commonwealths evidence was strong, and the victims testimony was corroborated in various aspects, including by the first complaint witness, by the mother, and by text messages from the defendant. In the circumstances, we are confident that this erroneously admitted evidence “did not influence the jury, or had but very slight effect.” Sullivan, 76 Mass. App. Ct. at 869, quoting Cruz, supra at 591.
Closing argument. The defendant next argues that the prosecutor erred in her closing argument by (1) violating the first complaint doctrine by mentioning multiple conversations between the defendant and the first complaint witness, (2) misstating the evidence, and (3) improperly bolstering the victims credibility.
The first complaint doctrine allows the prosecution to put on testimony about the victims first complaint of sexual assault in its case-in-chief, but the doctrine is meant to prevent the “piling on” of cumulative evidence by limiting the prosecution to one first complaint witness. Commonwealth v. King, 445 Mass. 217, 242-245 (2005). Where a complainant makes successive complaints to the first complaint witness, ordinarily only the details of the initial complaint are admissible. Commonwealth v. Arana, 453 Mass. 214, 222-223 (2009). However, the defendant can “open the door” to evidence about successive complaints. See Commonwealth v. Mendez, 77 Mass. App. Ct. 905, 906 (2010). That is what happened here when defense counsel cross-examined the victim about her complaints to the first complaint witness, and then referred to successive complaints in his closing argument to suggest that the victim and the first complaint witness had colluded to fabricate a story about the defendants conduct. It was not error, therefore, for the prosecutor to also refer to the fact of successive complaints in order to counter the suggestion of collusion.
The defendants remaining two claims of error are based on the prosecutors rhetorical question, “But we know there was a conversation about that though, dont we?” In context, the antecedent to “that” was clearly the prosecutors preceding reference to the victim having reported to the first complaint witness that the defendant “raped” her, which was a statement not supported by the evidence. Where, as here, the defendant did not object to the challenged statement at trial, we review any claim of error only for a substantial risk of a miscarriage of justice. Commonwealth v. Daigle, 379 Mass. 541, 549 (1980).
“[C]losing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts.” Commonwealth v. Teixeira, 486 Mass. 617, 630 (2021), quoting Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). Comments attributing testimony to a witness that the witness did not actually say are improper. See Commonwealth v. Walters, 472 Mass. 680, 703 (2015). It is also improper for a prosecutor to “blur the boundaries between judge, prosecutor, and jury by placing himself in the jury box as a supplemental or standby juror.” Commonwealth v. Burts, 68 Mass. App. Ct. 684, 689 (2007). Here, it was error for the trial prosecutor to suggest to the jury that “we know” there was a conversation about “that,” where the antecedent of “that” was “rape,” not only because the statement was unsupported by the evidence, but also because the prosecutors use of the first person plural pronoun aimed to draw the jurors into the prosecutors incorrect recitation of the evidence. See Fitzpatrick v. Wendys Old Fashioned Hamburgers of New York, Inc., 96 Mass. App. Ct. 410, 431 (2019), S.C., 487 Mass. 507 (2021) (improper to use the phrase “we know” in a manner that would ally the prosecution with the jurors, or “draw the jurors into the position of the [victim]”); Burts, 68 Mass. App. Ct. at 688-689 (prosecutors use of “we” in closing argument “conveyed, at least inferentially, the prosecutors belief or opinion about either certain evidence or the credibility of certain witnesses”).
Nonetheless, we perceive no substantial risk of a miscarriage of justice resulting from the error in the closing. See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001). The improper rhetorical question was only one passing comment; it did not go to the heart of the case. Furthermore, as we have stated above, the Commonwealths case was strong. On this record, we are left with no “uncertainty that the defendants guilt has been fairly adjudicated.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002) (citation omitted).
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Judgments affirmed.
FOOTNOTES
2
. The defendant also pleaded guilty to a related charge of violating an abuse prevention order pursuant to G. L. c. 209A, § 7.
3
. The Commonwealth agrees that this claim of error was properly preserved.
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. In light of our disposition, we do not separately discuss the defendants additional argument of cumulative error. See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 89 n.11 (2011).