MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court the defendant was convicted of ten different crimes against his former girlfriend (girlfriend) and her two children. The crimes included rape, assault and battery, strangulation or suffocation, and assault with a dangerous weapon upon the girlfriend; indecent assault and battery on a person under fourteen and strangulation or suffocation of the girlfriends eight year old son; and assault with a dangerous weapon upon the girlfriends thirteen year old daughter. We conclude that the trial judge acted within his discretion in the admission of what the defendant challenges as evidence of uncharged conduct and we are not persuaded that the prosecution shifted the burden of proof to the defendant in its closing argument. Accordingly, we affirm.
Discussion. 1. Uncharged conduct. “Evidence of a defendants prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendants bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). It may, however, be admissible for other purposes, including “to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive,” Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016), quoting Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003), so long as its probative value is not outweighed by the risk of unfair prejudice. See Crayton, supra. A trial judge has broad discretion in making these admissibility determinations, and the judges rulings “are not disturbed absent palpable error.” Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied, 138 S.Ct. 1038 (2018), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). To the extent that the defendant objected to the admission of the challenged evidence, we review any abuse of discretion for prejudicial error. See Crayton, supra at 252. Otherwise, our review is for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
In this case, the defendant argues that in four instances the judge improperly admitted evidence of prior bad acts; he contends that in two of those instances the judge compounded the error by declining to give a limiting instruction as the defendant requested. We discern no abuse of discretion in the rulings at issue here, and thus, no error.
The defendant first challenges the admission of the girlfriends testimony that minutes before he raped her using his penis, he threatened to rape her with a beer bottle. The judge declined to give a limiting instruction concerning this testimony, reasoning that “the beer bottle is connected to a rape that occurs a couple of minutes later,” and so was not “uncharged conduct,” i.e., a prior bad act. We agree. The victims testimony that the defendant threatened her with the beer bottle went to an element of rape, G. L. c. 265, § 22 (b) -- specifically, that “[the] defendant ‘compelled the victims submission by ․ threat of force[,]’ ” Commonwealth v. Sherman, 481 Mass. 464, 472 (2019), quoting Commonwealth v. Kennedy, 478 Mass. 804, 809-810 (2018) -- and so was evidence of the charged rape.
The defendants remaining objections were to evidence of verbal threats the defendant made to each of the three victims.
2
The defendant objected to the testimony of the children, but not to that of the girlfriend, on the grounds that it was evidence of prior bad acts.
The challenged testimony of each of these witnesses was admissible for the purposes of showing the nature of their relationship with the defendant, their fear of him, and to explain why they tolerated the defendants abuse for months before taking action. See, e.g., Beaulieu, 90 Mass. App. Ct. at 780; Commonwealth v. Melton, 77 Mass. App. Ct. 552, 558-559 (2010); Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394-395 (2006). To the extent that it was prejudicial, it was not unfairly so, particularly where it rebutted the defendants theme that the victims, particularly the defendants girlfriend, would not have “put up with ․ the sort of behavior” the victims described, and that the victims were responsible for “railroading” the defendant by fabricating their testimony. See Commonwealth v. Anestal, 463 Mass. 655, 665 (2012).
Further, any prejudice to the defendant occasioned by the admission of that evidence was blunted by the judges limiting instructions. See Crayton, 470 Mass. at 251. The judge gave an instruction sua sponte after the older childs testimony. Additionally, his final charge included a clear, detailed, and emphatic instruction to the jury about the limited way in which they could use the evidence of uncharged conduct and an unequivocal prohibition against using any such evidence “to conclude that the defendant has a bad character or a likelihood to commit crimes.”
3
See Commonwealth v. Facella, 478 Mass. 393, 402 (2017), quoting Commonwealth v. Carter, 475 Mass. 512, 526 (2016) (“In general, ‘a judge has discretion as to the timing of instructions’ ”). There was no abuse of discretion in the judges admission or treatment of the prior bad acts evidence highlighted by the defendant.
2. Closing argument. The defendant contends that the prosecutor created reversible error by the improper use in her closing argument of vouching by posing rhetorical questions that improperly shifted the burden of proof from the Commonwealth to him, and by suggesting to the jurors that they had a duty to convict. Because the defendant did not preserve these arguments at trial, our review is limited to determining whether any errors created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
In the portions of the closing highlighted by the defendant, the prosecutor sought to rebut the defendants argument that the girlfriend had fabricated her testimony and coached her children to make up details to be included in their testimony. “[T]he prosecutor was entitled to argue from the evidence why the Commonwealths witnesses should be believed,” Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53 (2003), and this is what the rhetorical questions did. The argument was grounded in the evidence at trial and did not include either the prosecutors own opinion about the witnesses’ credibility nor suggest that the prosecutor had information that the jury did not; in short, it was not, as the defendant contends, improper vouching for the victims’ credibility. See Commonwealth v. Smith, 460 Mass. 385, 399 (2011); Commonwealth v. Ortega, 441 Mass. 170, 181 (2004); Commonwealth v. Chavis, 415 Mass. 703, 713 (1993).
We are likewise unpersuaded that the prosecutors questions shifted the burden of proof to the defendant by suggesting that “[the defendant] needed to offer an explanation regarding why [the victims] would testify as they did if he did not commit the crimes with which he was charged.” Cf. Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 385 (2013) (rhetorical questions in closing did not suggest defendant “had any duty to present evidence”). The prosecutors questions focused the jury not on the burden of proof, but on the victims’ credibility. In essence, the prosecutor asked the jury to consider whether a witness lying in an attempt to obtain the defendants conviction would tell such a detailed and, in some respects, counterintuitive story. Cf. Commonwealth v. Fernandes, 478 Mass. 725, 742 (2018) (no impropriety in rhetorical questions suggesting defense implausible based on the evidence). There was nothing improper in the prosecutors use of these questions.
Finally, the prosecutors final exhortation to the jury was not improper. The prosecutors request that the jury “return the only true and just verdicts and find [the defendant] guilty as charged” immediately followed and was tied to the prosecutors statement that the jury had “all the evidence [they] need[ed] to find the defendant guilty beyond a reasonable doubt.” In context, the argument neither created a risk of suggesting to the jury that “there is a duty to convict,” nor implied that “proper performance of their function require[d] a guilty verdict.” Deloney, 59 Mass. App. Ct. at 53 (prosecutors statement, “Now is the time for justice. Find him guilty” erroneous). Even if the prosecutor had overstepped in her conclusion (which is not our determination here), the statement was one sentence in a closing spanning eleven pages of transcript; it did not elicit an objection from trial counsel, see Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 237 (2016); and the judges instructions to the jury clearly informed them of the Commonwealths burden of proof, their obligation as factfinders, and the proper role of argument in the trial. The challenged statements did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
FOOTNOTES
2
. The girlfriend testified that when she told the defendant she had to end telephone calls with him because she was at work, he would threaten to come to her workplace or to harm her children. Each of the children testified that the defendant scared them by threatening to shoot at or burn their house.
3
. Although on another occasion the judge was asked by defense counsel for a contemporaneous limiting instruction and declined to give one (apparently based on concerns that the instruction would suggest “a crime of threats” to the jury, where the concept had not been raised to them), we are satisfied that his instructions as a whole were sufficient to overcome the risk of unfair prejudice.