MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of two counts of rape of a child with force in violation of G. L. c. 265, § 22A. On appeal, the defendant challenges the admission of testimony concerning his prior uncharged physical and sexual abuse of the victim, and claims various errors in the prosecutors closing argument. We discern no cause to disturb the judgments, and affirm.
1. Prior bad acts. At trial, the judge allowed the victim to testify that the defendant abused her physically and sexually when they were both children, including by hitting her, threatening her with a knife, and orally and vaginally raping her on several occasions. On appeal, the defendant primarily challenges the level of detail allowed in the victims testimony, claiming that her graphic account of the uncharged prior bad acts unduly prejudiced him and overwhelmed the case. We review the ruling for an abuse of discretion.
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See Commonwealth v. Veiovis, 477 Mass. 472, 482 (2017).
A defendants prior bad acts are not admissible to show the defendants “bad character or propensity to commit the crime charged,” but may be admissible to show a “common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Such “evidence is admissible if its probative value outweighs the risk of unfair prejudice” to the defendant, Commonwealth v. Philbrook, 475 Mass. 20, 26 (2016), and “a judge must guard against the risk that evidence of prior bad acts will divert the jurys attention from the charged acts.” Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).
We recognize that “[i]n sexual assault cases, some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and ‘the probative existence of the same passion or emotion at the time in issue’ ” (citation omitted). Dwyer, 448 Mass. at 128-129. Furthermore, as child victims of sexual abuse are particularly susceptible to delayed disclosure, a degree of flexibility is needed for evidentiary rulings in child sexual abuse cases. Cf. Commonwealth v. King, 445 Mass. 217, 230 (2005) (noting flexibility in admitting fresh complaint testimony of child victims); Commonwealth v. Errington, 390 Mass. 875, 879 (1984) (admitting victims testimony on defendants prior abuse to explain delayed disclosure); Commonwealth v. McKinnon, 35 Mass. App. Ct. 398, 405 (1993) (admitting defendants prior bad acts to explain child victims delayed disclosure).
Here, the defendants prior bad acts were properly admitted for the limited purpose of showing the nature of the parties’ relationship, the victims fear of the defendant, and reasons for the delayed disclosure. The evidence was highly probative to the Commonwealths principal theory that the defendant accomplished the two charged rapes through constructive force, as the victim feared the defendant based on the pattern of abuse she experienced as a child. The victims prior bad act testimony was consistent with the judges allowance of the Commonwealths pretrial motion in limine, in which the judge prohibited the victim from including sensational details and stating that “the incidents occurred more often than she could even count.”
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Furthermore, the trial judge gave proper limiting instructions to the jury before and after the prior bad act testimony, as well as in the final charge. Contrary to the defendants claim, the victims prior bad act testimony did not overwhelm the case, as it formed a relatively small portion of her lengthy testimony. The judges conclusion that the probative value of the prior bad act testimony outweighed the risk of unfair prejudice to the defendant was not an abuse of discretion.
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2. Closing argument. The defendant challenges various statements in the prosecutors closing argument. He argues that the prosecutor erred by using the defendants prior bad acts as propensity evidence and to inflame the jury; injecting personal opinions on the victims state of mind and vouching for her credibility; shifting the burden of proof to the defendant; and commenting on the defendants courtroom demeanor. As the defendant objected only to the alleged vouching at trial, we review that claim for prejudicial error and the rest for error and, if error, for a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
a. Injecting personal opinions and vouching. The defendant challenges the prosecutors statements suggesting that the victim felt shame from the abuse and shielded herself from reality by being in denial. He argues that these statements, based solely on the prosecutors personal opinions, constituted improper vouching because they attempted to explain why the victim failed to report the abuse in a timely fashion, unfairly bolstering her credibility.
“A prosecutor is permitted to argue the evidence and the reasonable inferences that may be drawn from that evidence.” Commonwealth v. Miles, 46 Mass. App. Ct. 216, 219 (1999). See Commonwealth v. Murchison, 418 Mass. 58, 59 (1994). The victim testified that she did not immediately report the rapes because she did not want her family to view her as “disgusting” or “gross,” and that she continued to interact with the defendant as if nothing had happened. Based on these statements, the prosecutor could reasonably infer that the victims shame and denial played a role in her delayed disclosure, and articulating these inferences did not constitute improper vouching. See Commonwealth v. Caillot, 454 Mass. 245, 259-260 (2009) (no improper vouching where prosecutors remarks were based on inferences derived from evidence).
b. Remaining errors. We find no merit in the defendants remaining claims of error. First, the prosecutor did not use the defendants prior bad acts to establish propensity, nor to inflame the jurys sympathy. As noted above, the prior bad act testimony was properly admitted, and thus the prosecutor was entitled to marshal it in her closing argument. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The prosecutors characterization of the defendant as someone who was “willing to hurt” the victim was proper, as it was grounded in evidence and made in furtherance of the Commonwealths theory of constructive force.
Next, the prosecutors rhetorical questions concerning the absence of any motive for the victim to lie did not improperly shift the burden of proof to the defendant. The prosecutors comments were fair responses to defense counsels attacks on the victims credibility in his closing arguments. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012). The prosecutor did not, at any point, suggest that the defendant had a duty to present evidence contradicting the victims testimony. Contrast Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Therefore, there was no improper burden shifting.
Finally, the prosecutor did not err by commenting on the defendants unemotional demeanor on the stand, where inferences were limited to the defendants credibility at trial. See Commonwealth v. Moffat, 486 Mass. 193, 202 (2020) (“[p]rosecutors may ‘properly attack’ a testifying defendants credibility” by comments on courtroom demeanor [citation omitted]).
Judgments affirmed.
FOOTNOTES
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. While the defendant objected to the victims testimony concerning the childhood sexual abuse, he failed to object to her testimony on physical abuse. On appeal, he challenges both as unduly prejudicial, and we review the ruling on the physical abuse testimony for a substantial risk of a miscarriage of justice only. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 442 (2012). Admitting the physical abuse testimony was not unduly prejudicial for the same reasons as the sexual abuse testimony.
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. While the victim was allowed, over objection, to state that she felt “gross” after the abusive incidents, the judge exercised her discretion and stopped the victim from elaborating further. This single statement did not render her entire prior bad act testimony unduly prejudicial.
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. The defendant also argues that the prior bad acts should not have been admitted because the defendant was also a child when the alleged incidents took place. However, the defendant cites no authority for the proposition that prior bad acts should be inadmissible simply because the acts were committed when both the abuser and the victim were children.