MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of indecent assault and battery on a child under fourteen.
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On appeal he claims various errors in the prosecutors examination of the witnesses and in her closing argument. We affirm.
Background. In March 2017 the defendant attended a birthday party that his neighbor, Sofia, was throwing for her daughter, Lucy.
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The attendees also included the nine-year-old victim and his mother, Elena.
After most of the attendees had left, the victim was put to bed in an upstairs bedroom next to Lucy and her baby brother. In the middle of the night, the victim woke up to discover a man, later identified as the defendant, on top of him, pushing him back and forth. The victims pants and underwear had been pulled down to his knees, and he could feel the defendants penis between his buttocks. The victim could not move and started to cry.
Around this time Sofia went upstairs to check on the children and heard crying from the bedroom. When she turned on the light, she saw the defendant lying behind the victim with his pants pulled down; the victims pants were also pulled down. Sofia “lost it.” Her boyfriend, Samuel, then entered the room and saw the defendant sitting on the bed with his pants down at his knees. Samuel grabbed the defendant and pinned him against a wall in the hallway. Elenas boyfriend appeared at this point and tried to fight the defendant, but the defendant fled, running down the stairs and out of the apartment.
Elena heard Sofia calling for her and went into the bedroom. She saw that the victim was “red,” “crying,” and “hysterical.” When she asked what happened, the victim replied that he had been sleeping when a man came into the room, rolled the victim over, and pulled down the victims pants as well as his own pants.
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The theory of the defense was that the defendant had consumed copious amounts of alcohol on the day of the party, which, combined with medication and marijuana, caused him to fall asleep next to the victim. As a result, the defendant was “blackout drunk” during the incident and had no memory of it. In support of this theory, the defendant, his brother, and his mother all testified about previous instances when the defendant fell asleep in strange places after drinking.
Discussion. 1. Examination of witnesses. The defendant raises several challenges to the prosecutors examination of the witnesses, none of which were preserved at trial. We therefore review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Carroll, 439 Mass. 547, 554 (2003).
The defendant first claims error in a series of questions asked by the prosecutor during cross-examination of the defendant and his brother.
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In substance, the questions asked whether the defendant had ever pulled down his pants or assaulted a child on the prior occasions when he had fallen asleep after drinking.
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The defendant argues that these questions were improper because they insinuated, without a good-faith basis, that the defendant was a “serial child molester.” We disagree.
A prosecutor may not “attempt to communicate impressions by innuendo through questions which are answered in the negative ․ when the [prosecutor] has no evidence to support the innuendo.” Commonwealth v. Johnson, 441 Mass. 1, 4 (2004), quoting Commonwealth v. White, 367 Mass. 280, 284 (1975). Here, the prosecutor did not run afoul of this prohibition because her questions did not insinuate that the defendant had previously assaulted other children. Rather, it is clear from their context, and a reasonable jury would have understood, that the questions had the opposite purpose -- that is, they were intended to counter the defense theory by contrasting the defendants behavior on the night of the party with his behavior on the prior occasions when he fell asleep after drinking. That defense counsel did not object is further indication that the questions did not convey improper innuendo as the defendant now claims. Cf. Commonwealth v. Alemany, 488 Mass. 499, 512 (2021). In these circumstances we discern neither error nor a substantial risk of a miscarriage of justice.
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The defendant next contends that the prosecutor erred by asking the defendant whether he was “here when the [victim] testified” and heard the victim say that the defendant “got on top of him” and “pulled down his pants.” The defendant claims that this line of questioning impermissibly implied that the prosecutor knew the victim to be telling the truth. We do not agree that the questions are susceptible to that interpretation. Rather, viewed in context, the questions were intended to show that the defendant was claiming to have “blacked out” at the precise moment when, according to the victim, the assault occurred. This was a proper response to the defendants direct testimony and overall trial strategy. The same is true with respect to the prosecutors questioning the defendant about his testimony that he “blacked out” from the moment he went upstairs to use the bathroom, yet remembered trying later to explain to the adults that he had simply fallen asleep next to the victim. These questions cannot reasonably be understood to imply that the prosecutor had expert knowledge outside the evidence, as the defendant asserts.
The defendant also claims error in the prosecutors direct examination; in particular, he argues that the prosecutor tried to evoke sympathy for the victim and his family by asking several of the Commonwealths witnesses to describe the victims demeanor after the assault. We see no error. “Evidence of a victims state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case.” Commonwealth v. Arana, 453 Mass. 214, 225 (2009). Here, the defendant challenged the victims credibility by arguing that his testimony was the product of undue influence from the adults who were in the room. Evidence of the victims demeanor immediately after the assault was thus relevant and admissible to rebut this defense. See Commonwealth v. Espinal, 482 Mass. 190, 204 (2019).
2. Closing argument. The defendant challenges the prosecutors closing argument on several grounds, which again were not preserved at trial. Thus, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Carroll, 439 Mass. at 554.
The defendant first contends that the prosecutor misstated the evidence when she argued that Sofia “saw exactly what [the victim] described -- the defendant behind him with his pants down, pushing his body up against where his buttocks would have been.” The defendant claims that this was error because the victims testimony was that he awoke because someone was straddling him as he was lying face down. Viewing the statement in context, see Commonwealth v. Whitman, 453 Mass. 331, 347 (2009), we conclude that it was proper. Earlier in her closing, the prosecutor summarized the victims testimony, and she then qualified her use of “exactly” by noting the differences between the victims and Sofias descriptions of the incident.
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Thus, we do not agree with the defendants assertion that the prosecutor obscured those differences. And to the extent there was error in using the word “exactly,” it did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Marquetty, 416 Mass. 445, 451 (1993) (“we assume that the jury have a reasonable measure of sophistication and are capable of sorting out hyperbole”).
The defendant argues that the prosecutor again mischaracterized the evidence when she stated that “[Lucy] told you that in the middle of the night she could feel the bed moving.” According to the defendant, this statement implied that Lucy woke up because the bed was moving when her testimony was that she awoke to the sounds of crying. We see nothing improper about the statement, which was an accurate description of Lucys testimony that she woke up and “felt the bed move.” Nor do we see error in the prosecutors statements that the defendant “walk[ed] into the hallway,” “was fighting to get loose,” and “was able to free himself from two adult men.” Three witnesses, including the defendant himself, testified that there was a physical confrontation, which ended when the defendant fled down the stairs. The prosecutors statements were reasonable inferences that could be drawn from this testimony. See Commonwealth v. Roy, 464 Mass. 818, 829 (2013).
The defendant further argues that it was a mischaracterization for the prosecutor to state that the defendants “status quo” was to “smoke[ ] marijuana” and “drink[ ] huge amounts of alcohol with his medication all the time” while still being “able to function.” In particular, the defendant quarrels with the assertion that he was “able to function.” But during cross-examination, the defendant answered affirmatively to the question -- “you were drinking twelve beers a day -- that was normal?” -- and he also agreed that “there was a very long period when [he] would regularly ingest alcohol, marijuana, and [his] medications.” In light of this testimony, we think the prosecutors inference was a fair one. Although the defendant and his family members testified to specific instances when he passed out after combining his medication with alcohol, it was still reasonable to infer from his testimony that he was able to function on a day-to-day basis. Furthermore, to the extent there was error, it did not create a substantial risk of a miscarriage of justice. See Marquetty, 416 Mass. at 451.
Next, the defendant contends that the prosecutor conveyed her opinion of the defendants guilt with the following statement:
“[The victim] was sexually assaulted in a bed where he was supposed to be sleeping because of the intentional actions of this defendant, and I am confident that when you return from your deliberations you will find the defendant guilty on both counts with which he is charged.”
We disagree with this characterization. Although prosecutors may not express their personal belief in a defendants guilt, that did not occur here. Rather, after marshaling the evidence, the prosecutor argued that the jury should convict based on the strength of that evidence. This was proper. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor may “argu[e] forcefully for a conviction based on the evidence”); Commonwealth v. Smith, 387 Mass. 900, 906-907 (1983) (argument that defendant “deserve[d] to be convicted” was proper because it “interjected no extraneous material or belief but expressed the prosecutors view of the strength of the evidence”).
Finally, the defendant argues that the prosecutor appealed to the jurys sympathy by making repeated references to the fact that the victim was attending a childs birthday party and by describing him as “credible” and “brave.” Prosecutors may use closing arguments to set the scene and humanize the proceedings so long as they do not play on the emotions of the jury. See Commonwealth v. Rodriguez, 437 Mass. 554, 566 (2002); Commonwealth v. Kent K., 427 Mass. 754, 759 n.6 (1988). Having reviewed the entire closing, we conclude that the prosecutor did not exceed the permissible bounds of argument. The statements about the birthday party were relevant to set the scene, rooted in the evidence, and not so excessive as to constitute an improper appeal to sympathy. “That the defendant did not object to these statements at trial is some indication that the tone and manner of the statements were not unfairly prejudicial.” Alemany, 488 Mass. at 512. Also, contrary to the defendants contention, the prosecutor did not vouch for the victim by calling him “credible” and “brave,” as she did not “express a personal belief” in his credibility or suggest that she had “knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
Moreover, even were we to assume that the prosecutor made some missteps, there was overwhelming evidence supporting the charge of indecent assault and battery, and the jury acquitted the defendant of the more serious charge, indicating that they paid attention to the evidence and heeded the judges instruction not to be swayed by emotion. Any errors therefore did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.
FOOTNOTES
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. The defendant was acquitted of assault on a child under sixteen with intent to commit rape.
3
. We use pseudonyms throughout this memorandum and order.
4
. Elena was designated as the first complaint witness.
5
. Although the defendant also claims error in the cross-examination of his mother, the testimony he cites is that of the brother.
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. For example, the prosecutor asked the defendant the following questions: “During those other times, have you ever been next to a child? ․ Have you ever been accused of climbing on top of a child? ․ Have you ever been accused of pulling a childs pants down? ․ Have you ever been accused of rubbing your penis between a childs buttocks?” In another exchange the prosecutor asked the following questions: “Did you ever pull your sons pants down? ․ Did you ever pull your pants down next to your son? ․ Did you ever straddle your son when he was sleeping?” The defendant answered, “No,” to all of these questions. The prosecutor posed similar questions about the defendant to the defendants brother, who likewise answered in the negative.
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. At oral argument the defendant maintained that the prosecutor could have accomplished her objective in a less provocative way -- for example, by focusing on the witnesses’ testimony that the defendant previously drank to the point where he was rendered immobile. While the point is not without some force, we are satisfied, given the theory that the defense put forward, that the jury would not have understood the prosecutors questions to be implying that the defendant had assaulted other children. And because the questions elicited only denials, they did not create a substantial risk of a miscarriage of justice.
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. Immediately after the challenged statement, the prosecutor argued, “[The victim] told you the defendant was moving, so the fact whether they were face-down or sideways makes absolutely no difference.”