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15-P-1183 Appeals Court
COMMONWEALTH vs. AUGUSTO LOPEZ.
No. 15-P-1183.
Middlesex. March 6, 2017. - May 24, 2017.
Present: Carhart, Massing, & Lemire, JJ.1
Rape. Child Abuse. Enticement of Minor. Evidence, First
complaint, Relevancy and materiality, Credibility of
witness. Witness, Credibility.
Indictments found and returned in the Superior Court
Department on May 17, 2012.
The cases were tried before Kenneth W. Salinger, J.
Jane Larmon White, Committee for Public Counsel Services,
for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.
MASSING, J. The defendant was convicted of two counts of
rape and abuse of a child under sixteen years of age, aggravated
by an age difference of ten years or more, see G. L. c. 265,
1
Justice Carhart participated in the deliberation on this
case prior to his retirement.
2
§ 23A(b), two counts of rape of a child by force, G. L. c. 265,
§ 22A, and one count of enticement of a child, G. L. c. 265,
§ 26C. The charges arose from a single incident involving a
twelve year old girl. The only evidence of the crime was the
testimony of the child, who was fifteen years old at the time of
trial. At issue is the judge's decision to admit the testimony
of the child's "therapeutic mentor" that the child lacked the
ability to engage in "imagination play." We conclude that the
testimony was improperly admitted to prove that the child was
incapable of telling lies and that its use for this purpose was
prejudicial, warranting a new trial.
Background. a. The crime. When the child was twelve
years old she lived next door to the defendant, whom she called
"Pachoo." The defendant lived with Chrissy, who was a friend of
the child's mother, and Chrissy's three children, two of whom
were younger than the child. The defendant was Chrissy's boy
friend and was fifty-five years old at the time.
According to the child, one night she went next door to
babysit for Chrissy's two younger children while Chrissy went
out to play bingo. The child had just finished using the
upstairs bathroom when the defendant called her into Chrissy's
bedroom. The defendant pushed her onto the bed, took off her
pants and underwear, got on top of her, and "sticked his dick in
[her] vagina." At some point he stopped, and the child put her
3
underwear and pants back on. Then the defendant put his hand
underneath her clothes and put his finger inside her vagina.
After this, the two of them went downstairs to the parlor,
sat on the couch, and watched television. The child testified
that the defendant grabbed her hand and "tried to make [her]
touch his dick," but she did not actually touch him. The child
did not remember where Chrissy's children were during these
events. When Chrissy returned, the child went back home without
saying anything to anyone.
b. The child's traumatic history. Much evidence was
introduced, some preemptively by the Commonwealth and some on
cross-examination, that the child suffered from a number of
difficulties. She had special education needs, was "classified
as being mildly mentally retarded," and had bipolar disorder.
She had a leg injury: when asked about her leg, she explained
that her "patella went out of place" when she "got out of the
shower and [her] leg gave out and [she] fell six times."
In addition, the child had been raped by an older male
cousin when she was seven or nine years old. She was at her
aunt's house when her cousin, who was in the bathroom, said
"come here" and "showed [her] his thing." They went into a
bedroom and were watching television when the cousin "pulled
[her] pants down and he sticked his dick in [her] vagina."
4
The incident with the cousin traumatized the child. She
started having flashbacks, in which upsetting thoughts of her
cousin came to her involuntarily. She would "see him on the
wall." In these flashbacks it would feel like her cousin was
touching and hurting her again, and it scared her. She started
seeing counsellors and therapists to help her deal with the
effects of this traumatic event.
Defense counsel also elicited testimony on cross-
examination that the child had witnessed an older female cousin
and the cousin's boy friend having sex. Around this time, and
before the incident with the defendant, the child shaved off all
of her pubic hair, even though she was not yet shaving her legs
or armpits. After the incident with the defendant, in her
flashbacks she would see the defendant's face on the wall
instead of her cousin's.
c. The therapist's testimony. Less than two weeks before
trial the Commonwealth moved in limine to present the child's
therapeutic mentor, Jill Larson, as the first complaint witness,
instead of the child's father. See Commonwealth v. King, 445
Mass. 217, 241-248 (2005), cert. denied, 546 U.S. 1433 (2006).
After a hearing held on the eve of trial, the judge allowed the
motion.
5
At trial, while explaining the nature of her relationship
with the child,2 Larson testified, over objection, that she was
"aware of [the child's] difficulties in processing information,"
and that the child looks at the world "in a very black-and-white
. . . manner." The judge allowed the prosecutor to pursue this
line of questioning to establish an "appropriate contextual
background," although he indicated that "at some point, it will
be enough."
After additional questioning in this vein, Larson began to
testify that the child had difficulty "engaging in play."
Defense counsel objected again and, at sidebar, informed the
judge that the Commonwealth had disclosed, just the day before,
that Larson would testify that the child "was unable to engage
in pretend princess play and that she lacked the higher order of
thinking." Defense counsel argued that testimony regarding the
child's thought processes required expert testimony and that
"her inability to play princess play" was not relevant. The
judge ruled that "some limited questioning regarding facts in
this area" would be relevant, but cautioned the Commonwealth not
2
After graduating from college, Larson attended a four-year
clinical program for social work and obtained a master's degree.
At the time of trial she was working as a foster care social
worker and child protective worker in Maryland. She saw the
child weekly from September, 2011, through April, 2012, as a
therapeutic mentor, and was "involved in all her care plans,"
knew all her diagnoses, was "aware of all her therapeutic
issues, and . . . her cognitive delays."
6
to elicit opinion testimony about the child's "tendency to tell
the truth or fantasize or anything like that."
Larson then explained that the child "struggled with
imagination play, which really is a core piece of therapeutic
mentoring." She described an outing to "Plaster Fun Time,"
where the child was given "a scenario of being princesses" and
"had to pretend that we were painting a castle and we had to
slay the dragon. And [the child] really got frustrated because
she wasn't able to really higher-order think . . . ." At this
point, the judge sustained defense counsel's objection and
forcefully instructed the jury to "disregard the last part of
the answer about inability to engage in a higher-order
thinking."
Redirected to describe the incident at Plaster Fun Time,
Larson resumed her testimony, stating that the child "became
upset when she wasn't able to participate like the other
children who were being able to pretend that they were
princesses and being able to come up with characters and name
their dragons and she wasn't able to make a story line." Larson
then testified about a regularly scheduled therapeutic mentoring
session with the child, during which the child disclosed being
sexually assaulted by the defendant.3
3
Over the defendant's objection, Larson also testified that
she was a mandated reporter because she was "in a position of
7
d. Closing arguments. Defense counsel argued that the
jury should discredit the child's testimony because "[h]er story
about Pachoo is too close to her story about her cousin," her
testimony was inconsistent, and there was no physical evidence.
Rhetorically addressing the possible argument that "she's not
sophisticated enough to do pretend play, so she's not
sophisticated enough to get up on the stand and make a
purposeful lie," counsel argued that the child did not
intentionally give false testimony, but rather that she was
"confused" about the facts, confused about her sexuality, and
influenced by "her recurring and intrusive memories of [her
cousin] in the weeks before accusing Pachoo."
The prosecutor countered that the details of the incident
with the cousin differed from the child's description of what
the defendant did to her. She argued that the child "doesn't
have the wherewithal and the sophistication to add the details,"
and that "[t]he details about what Pachoo did to her come from
the reality of her experiencing it." With respect to the
therapeutic mentor's testimony, the prosecutor said, "Think
about what Jill Larson told you about how [the child] didn't
even have the ability to come up with a storyline about
working with children or adults," and, as such, she was required
"to report abuse, neglect or anything that is reported to us by
anybody that we are working with objectively."
8
princesses, how she struggled with that, how frustrated she got.
She's not intelligent enough, she's not sophisticated enough to
perpetuate a cold, calculating fabrication."
Discussion. Evidence that the child was unable to engage
in imaginative play, or that she got upset because she was
unable to pretend to be a princess or slay a dragon at Plaster
Fun Time, should not have been admitted. "To be admissible,
evidence must meet 'the threshold test of relevancy,' that is,
it must have a 'rational tendency to prove an issue in the
case.'" Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107
(2000), quoting from Commonwealth v. Fayerweather, 406 Mass. 78,
83 (1989). See Mass. G. Evid. § 401 (2017). Larson's testimony
obviously was not probative of anything that occurred between
the child and the defendant. Nor did it tend to prove the
content or circumstances of the child's disclosure of her "first
complaint" to her therapist. While some background facts may
have been admissible to put the child's relationship with Larson
into context, cf. Commonwealth v. Rosario, 430 Mass. 505, 508
(1999), the challenged testimony went beyond the background of
their therapeutic relationship and into an attenuated collateral
matter.
We recognize that "[t]he relevance threshold for the
admission of evidence is low," Commonwealth v. Arroyo, 442 Mass.
135, 144 (2004), that a judge has wide discretion in determining
9
what evidence is relevant, see Commonwealth v. Alphas, 430 Mass.
8, 16-17 (1999), and that evidence can be relevant without
directly establishing a fact of the case. See Mass. G. Evid.
§ 401, at 37 ("To be admissible, it is not necessary that the
evidence be conclusive of the issue. . . . It is sufficient if
the evidence constitutes a link in the chain of proof"). And
evidence regarding the child's ability to engage in imaginative
play did have potential probative value on one issue in the
case: whether her account of the rape by the defendant was
true, or whether she made it up.
However, it is well established that "[n]o witness, neither
a lay witness nor an expert, may offer an opinion regarding the
credibility of another witness." Commonwealth v. Quinn, 469
Mass. 641, 646 (2014). See Commonwealth v. Montanino, 409 Mass.
500, 504 (1991) ("longstanding rule that witnesses may not offer
their opinions regarding the credibility of another witness").
"It is the province of the fact finder, not the witness, to
determine the weight and credibility of testimony."
Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401-402 (1983).
Vouching for the credibility of a witness, whether explicitly or
implicitly, is impermissible. Quinn, supra at 646-647.
Notwithstanding this limitation, the Commonwealth contends
that Larson's testimony was relevant "in light of the defense,
which was to attack the victim's credibility and suggest that
10
she may have conflated the two incidents of rape." While the
Commonwealth's argument does have some superficial appeal, it
does not survive scrutiny.
The defendant permissibly pursued a variant of a Ruffen
defense. See Commonwealth v. Ruffen, 399 Mass. 811, 815 (1987)
("If the victim had been sexually abused in the past in a manner
similar to the abuse in the instant case, such evidence would be
admissible at trial because it is relevant on the issue of the
victim's knowledge about sexual matters"). His defense was that
the child used the details of the rape by her cousin to accuse
the defendant, not intentionally or maliciously, but rather as a
product of trauma and confusion. The defendant did not suggest
that the child engaged in an imaginative exercise to come up
with her accusations against him. Sadly, although the child had
no experience being a princess, she did have experience being
raped. Evidence demonstrating the child's inability to engage
in imaginative play had no bearing on the defendant's claim that
the child was confusing or conflating her real life experiences.
Thus, the Plaster Fun Time incident was relevant only for
an improper purpose: to suggest to the jury that the child was
incapable of lying and therefore must have been telling the
truth. A reasonable juror hearing the child's therapist testify
that the victim saw things "in a very black-and-white . . .
manner," was not able to pretend like other children, and
11
"wasn't able to make a story line," could think that the
therapist was implicitly vouching for the child's credibility.
See Quinn, supra at 647. "While the proposed testimony fell
short of rendering an opinion on the credibility of the specific
child before the court, we see little difference in the final
result. It would be unrealistic to allow this type of . . .
testimony and then expect the jurors to ignore it when
evaluating the credibility of the complaining child."
Commonwealth v. Ianello, 401 Mass. 197, 202 (1987). Viewed in
this light, the admission of Larson's testimony was an abuse of
discretion.
Having determined that the testimony was improperly
admitted, we must consider whether it was prejudicial. Because
the defendant timely and forcefully objected to the testimony,
we apply the prejudicial error standard from Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). "An error is not
prejudicial where it 'did not influence the jury, or had but
very slight effect.'" Quinn, supra at 650, quoting from
Commonwealth v. Christian, 430 Mass. 552, 563 (2000).
The child's credibility was the only issue in the case.
The only witness other than the child and Larson was the child's
father, who was not a percipient witness or even a corroborating
witness. No physical evidence was presented. See Montanino,
409 Mass. at 504-505 (improper use of opinion testimony to
12
bolster victim's credibility reversible error where victim "was
the key prosecution witness" and "his credibility was a crucial
issue"); Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 666-
668 (2011) (improper vouching by pediatrician who interviewed
victim held to be prejudicial where case rested on victim's
credibility). Contrast Commonwealth v. Rather, 37 Mass. App.
Ct. 140, 149-150 (1994) (impermissible endorsement of victims'
credibility harmless where "various aspects of the victims'
testimony were corroborated by other witnesses").
Although Larson was not permitted to testify as an expert,
based on her qualifications and relationship with the child, she
"acquired the veneer of an expert." Commonwealth v. LaCaprucia,
41 Mass. App. Ct. 496, 500 (1996). The danger of implicit
vouching is heightened "where, as here, the witness is
testifying to actual interaction with the child." Ibid. See
Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 451 (1996)
(testimony "intermingling [witness's] role as treating
therapist, expert on behavioral characteristics of sexually
abused children, and fresh complaint witness, had the effect of
impermissibly vouching for the [child's] credibility");
Velazquez, supra at 667.4
4
We express no opinion about whether a properly qualified
expert could testify about the perceptive or expressive
abilities of a person with the child's disabilities. Cf.
Commonwealth v. Rather, 37 Mass. App. Ct. at147-148 (while
13
In addition, in closing argument, the prosecutor focused on
Larson's testimony for its improper purpose, arguing that the
child "doesn't have the wherewithal and the sophistication to
add the details," and that, as Larson had told the jury, the
child "didn't even have the ability to come up with a storyline
about princesses, how she struggled with that, how frustrated
she got. She's not intelligent enough, she's not sophisticated
enough to perpetuate a cold, calculating fabrication." Although
the argument was properly based on the evidence admitted at
trial, see Commonwealth v. Lamrini, 392 Mass. 427, 433 (1984)
(although "there was no misconduct in the prosecutor's summation
because he relied on a ruling by the judge, we conclude that the
judge's ruling was error"), it served to focus the jury on
Larson's testimony for the wrong reasons.
Given the nature of the improper testimony, the use that
was made of it at trial, the strong possibility that the jury
may have considered it as vouching for the child's credibility,
and the absence of any evidence other than the child's word, we
cannot be confident that the jury's verdict was not
substantially swayed by the error. See Quinn, 469 Mass. at 650
(error prejudicial where "we cannot say [improper admission of
expert testimony explaining delayed disclosure by sexually
abused children is generally admissible, "the line between
proper testimony as to patterns of disclosure of child sexual
abuse victims and improper testimony constituting endorsement of
the credibility of a victim-witness is indeed a narrow one").
14
expert's implicit vouching] did not influence the jury's
evaluation of the victim's credibility"). Accordingly, the
judgments are reversed, and the verdicts are set aside.
So ordered.