Commonwealth v. Lewis

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16-P-257 Appeals Court

COMMONWEALTH vs. JEFFREY LEWIS.

No. 16-P-257.

Essex. December 12, 2016. - June 7, 2017.

Present: Hanlon, Carhart, & Neyman, JJ.1

Rape. Assault and Battery. Evidence, First complaint.
Practice, Criminal, Instructions to jury.

Indictments found and returned in the Superior Court
Department on September 5, 2013.

The cases were tried before Joshua I. Wall, J.

James P. Vander Salm for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.

HANLON, J. After a jury trial, the defendant was convicted

of four counts of rape, in violation of G. L. c. 265, § 22(b),

and one count of assault and battery in violation of G. L.

1
Justice Carhart participated in the deliberation on this
case prior to his retirement.
 2

c. 265, § 13A.2 He appeals, arguing that his convictions should

be reversed because evidence was admitted improperly in

violation of the first complaint doctrine. See Mass. G. Evid.

§ 413 (2017). This error, he argues, combined with what he

describes as inadequate limiting instructions, resulted in

prejudicial error. For the reasons that follow, we affirm.

Background. The jury could have found the following facts.

In September, 2012, the victim met the defendant at a "club" in

Lawrence; they had a "whirl wind romance really. He said all

the right things, and [she] fell in love with him within a

week." A little more than a month into the relationship,

however, things began to change. The defendant began to drink

heavily, and, when he was drinking, he became rude and mean to

the victim, as well as controlling -- particularly in public.3

The victim would sometimes not see the defendant for days at a

time when he was drinking; he would "basically disappear" and

she would "end up having to find him." During this time, the

victim was living in North Andover with her three children, and

the defendant was living on a friend's couch. Despite the

2
The defendant was charged with assault and battery by
means of a dangerous weapon (to wit, a wall), in violation of
G. L. c. 265, § 15A(b), but was convicted of the lesser included
offense of assault and battery.
3
The victim testified that, in public, the defendant wanted
her to be subservient, calling him "sir," and keeping quiet in
front of his friends so that "they knew, you know, he was the
man." At home, she was permitted to speak freely.
 3

defendant's behavior when he was drinking, their relationship

continued because, according to the victim, she was in love with

him and he did not behave that way all the time.

a. January 1, 2013, rape. By New Year's Eve, 2012, the

relationship between the victim and the defendant was "rocky,"

but they had made plans to go out and celebrate that evening.

The victim picked up the defendant from work at approximately

4:00 P.M. and left him at his friend's house to shower and

dress. Afterwards, she was unable to get in touch with him

during the rest of the evening; she believed that he had turned

his cellular telephone off because the calls went directly to

voice mail. Eventually, at approximately 1:00 A.M. on January

1, she found him at his sister's house in Haverhill, sitting on

the porch.

The victim was upset and angry, and the "clearly drunk"

defendant apologized and told her that his telephone had died.

He invited her into the house to talk and, when they went

inside, no one appeared to be home. They went into his mother's

bedroom and the victim was "crying still."4 The defendant then

pulled down his pants and instructed the victim to "lick his

ass," saying that, if she would not do it, he would find someone

else. The victim testified that nothing like that had happened

4
The defendant's mother was not home at the time.
 4

before in their relationship and she told him "to go ahead and

find somebody else."

She stood up to walk out the door and the defendant grabbed

her, pulled her underwear and pantyhose down, turned her around

and threw her to the ground face down. He shoved her face into

the carpet and put his penis into her vagina. The victim told

him to stop, that she could not breathe, and that he was hurting

her. The defendant responded that she was his and he would do

whatever he wanted. After ejaculating inside of her, the

defendant fell asleep on his mother's bed. The victim

eventually fell asleep at the end of the bed still crying.5 The

next day, the victim saw on the defendant's cellular telephone

that he had been conversing with another woman the previous

night when he was supposed to be out with her; she then ended

the relationship. The victim did not report the rape to the

police at that time because she "didn't really think anything at

the time of it. [They] had had rough sex before." She

testified, "It just didn't -- I don't know. Nothing really

clicked at the time."

5
The victim testified that prior to this incident, she and
the defendant had a consensual sexual relationship, and she "had
never told him to stop before"; this sexual encounter "was mean
. . . [and] seemed cruel."
 5

b. July 8, 2013, rape. In February, 2013, the victim and

the defendant resumed their relationship.6 On May 1, 2013, they

moved together into an apartment in Haverhill; the victim's two

youngest children moved in with them full time by July, 2013.

Shortly thereafter, the defendant began going out frequently and

coming home drunk early the next morning. During the evening of

July 7, 2013, the victim telephoned the defendant and sent text

messages to him, but she received no response; she then sent him

a text message telling him not to come home because she was

tired of his behavior -- specifically, going out every night.

The defendant responded that he would leave when he was ready.

In the early morning hours of July 8, 2013, while the

victim and her daughters were sleeping, the defendant came home

drunk and attempted to get into the bed with the victim. As she

was trying to push him out, the defendant slapped her in the

face, and she slapped him back. The defendant then straddled

her, sitting on her stomach, pinning her arms down with his

knees, and "started hitting [her] over and over and over again"

in the face, calling her a "slut," and saying that she "deserved

it." The victim was crying and telling the defendant to stop;

at some point, she was able to get her hand free and scratch

6
The victim testified, "He was sweet again. He tried. He
started spending time with me. He was making an effort spending
time with my kids. We spent time together with his son. We
started doing things together."
 6

him. The defendant then flipped her onto her stomach and put

his penis in her vagina; he was holding the victim's hands above

her head with one hand, with his other hand around her neck.

While he was raping the victim, the defendant was telling her

that, if she did not say she liked this treatment, he would hit

her again. The victim did not report the incident to the police

at that time because, she testified, she loved him and "probably

would have tried to work anything out with him. And . . . [she]

wanted to see if when he sobered up, it was different."

c. July 11, 2013, rapes. A few nights later, the

defendant was out all night and came home at 6:00 A.M. with his

friend Adrian. They were both drunk, and Adrian slept on the

living room couch. In response to the defendant's demand, the

victim got Adrian a blanket and pillow, and then went back into

their bedroom where she had been asleep. The defendant came

into the bedroom where the victim was sitting on the edge of the

bed; he then forced his penis into her mouth, pushing the back

of her head forward and up and down with his hands. The victim

was able to pull away, and then ran to the bathroom and vomited.

When the victim returned to the bedroom, the defendant told

her to take off her clothes. She told him that she did not feel

well; he responded that if she did not do so, he would. In

response, she began, hesitantly, to remove her top, but the

defendant became impatient and grabbed the victim. He pulled
 7

off her pants so that she was lying "sideways" on the bed; he

then put his penis into her vagina while keeping one hand around

her neck. Afterwards, the defendant went out to the living room

and fell asleep on the other couch. The victim did not at that

time call the police because she "didn't look at it as rape

still at that point."

Later that morning when the defendant woke up, the victim

told him to pay her his half of the rent and to move out. The

defendant started to put his clothes in a laundry basket to take

with him; the victim sat in the basket so that he could not take

his belongings until he paid her. Instead, the defendant threw

the basket, with the victim in it, across the room causing the

victim to hit her head on the door frame and her knee on the

wall. They continued to argue, and the defendant called the

police, saying, according to the victim's testimony, that

"[i]t's going to be so funny watching you get taken away from

your kids, I'm going to sit there and smile and laugh as you're

being hauled off in handcuffs right in front of your children."

Eventually, after speaking with the victim, the responding

police officers arrested the defendant for assaulting the

victim.

Later that same day, July 11, 2013, the victim went to the

Haverhill Division of the District Court Department to file an

application for an abuse prevention order against the defendant
 8

pursuant to G. L. c. 209A (restraining order).7 During the

process of completing the necessary paperwork, the victim spoke

with a victim witness advocate. She was given a sheet posing

questions, including the question whether the person she was

with had ever forced her to have sexual intercourse when she did

not want it. After reading the questions, the victim began to

cry, realizing, she said, that the defendant had done that to

her several times. The victim's affidavit in support of her

restraining order application was admitted at trial as an

exhibit. It mirrored her testimony about what she said had

occurred on July 8, and she testified that the affidavit was the

first time that she had "disclosed in any fashion what had

happened on July 8 of 2013." After completing the paperwork,

the victim was sent to the Haverhill police station, where she

met with Detective Joseph Benedetti. In that meeting, she

disclosed to Detective Benedetti the details of the July 11

rapes.

At trial, the defendant objected, arguing that this was a

second complaint, not admissible under the first complaint

doctrine. The judge overruled the objection, saying, "I still

regard it as a first complaint as to the July 11th" incident,

cautioning that no further complaint testimony about the July 8

7
The jurors were not permitted to hear that the victim went
to court to obtain a restraining order against the defendant.
 9

incident would be permitted. He then gave a thorough limiting

instruction to the jury; the defendant did not object to the

instruction. The victim then testified very briefly about what

she had told the detective regarding the July 11 incidents.8 In

the next question, the prosecutor said, "Okay. And after you

spoke with Detective Benedetti -- strike that. When you spoke

with Detective Benedetti, did you tell him about what had

happened on New Year's Eve?" The victim responded, "I did."9

She gave no details and there was no objection or motion to

strike. The prosecutor then moved on to a different line of

questioning with no follow up. On cross-examination, defense

counsel questioned the victim extensively about the timing of

that report and the victim conceded that she may have told the

detective about the January 1 rape in a later meeting.

Detective Benedetti testified that he spoke with the victim

at the police station on July 11, 2013, and that she spoke to

him about both the July 8 and July 11 rapes; he took pictures of

8
When asked what she had told the detective, the victim
responded, "The same thing that I -- that I just testified about
here, about him coming home, trying to force me to perform oral
sex on him, him grabbing me, pulling me down on the bed,
penetrating me, threatening me, choking me."
9
The prosecutor told the judge that she had expected the
answer to her question to be no -- that the victim had not told
the detective about the rape on New Year's Eve. The prosecutor
had informed the judge earlier that there would be no first
complaint testimony for the January 1, 2013, rape because the
victim's first disclosure of that incident occurred during her
grand jury testimony.
 10

bruising and cuts on her body from the rapes that had occurred

earlier that day. Benedetti himself recounted the specifics

only of what the victim had told him about the July 11

incidents.10 He denied that the victim had told him about the

January 1 rape at all.

Immediately after this testimony, the judge gave an

abbreviated limiting instruction, referring back to the first

complaint instruction that the jury had heard the day before

when the victim testified.11 The defendant did not object to

that instruction. The following day, at the end of the trial,

as part of his final charge to the jury, the judge provided a

full instruction on the use of first complaint evidence relating

10
The judge carefully limited any testimony about whether
the victim had spoken with the detective about the July 8 rape;
the detective was permitted to answer only "Yes or no" to that
question. There was no objection. Even though, as the
defendant argues, the fact that the detective answered "yes" to
the question whether the victim had told him about the July 8
rape could be considered a subsequent complaint, we see no abuse
of discretion.
11
Specifically, the judge said, "So the information that
the detective was just recounting about what [the victim] told
him, that is information that you received an instruction on
yesterday. So that rather complicated instruction applies to
this as well as the information yesterday. So your -- the gist
of the instruction is that you're to use this information to
evaluate the timing of the complaint, when did the person make
the complaint, and under what circumstances did the person make
the complaint. And then you can evaluate whether the complaint
affects the credibility of the person either positively or
negatively." There was no objection.
 11

only to the July 8 and July 11 rapes; the defendant did not

object to any part of the judge's final instructions.

Discussion. The defendant contends that his trial was

"rife with violations of the first complaint doctrine" and that,

as a result, his convictions should be reversed.

a. Admission of first complaint testimony. The defendant

first argues that the judge, improperly and over objection,

permitted Detective Benedetti to testify about the victim's

complaint of the July 11 rapes. In the defendant's view, this

was a second "first complaint" witness whose testimony unfairly

bolstered the victim's credibility.12 We review the judge's

decision for an abuse of discretion, see Commonwealth v. Aviles,

461 Mass. 60, 73 (2011), and we conclude that, in the

circumstances presented in this case, where the two proffered

complaints related to two separately charged offenses that took

place on separate, specified dates, their admission did not

constitute an abuse of discretion.

In Commonwealth v. King, 445 Mass. 217 (2005), cert.

denied, 546 U.S. 1216 (2006), the Supreme Judicial Court

"replaced the doctrine of 'fresh complaint' with the doctrine of

'first complaint' to reflect 'a contemporary understanding of

12
The initial first complaint evidence was the affidavit,
filed in support of the victim's application for a restraining
order and redacted so that it described only the July 8 rape.
As noted, the affidavit was admitted without objection at trial.
 12

information that [would] permit jurors to make a fair assessment

of a sexual assault complainant's credibility.' King, 445 Mass.

at 237. See generally Mass. G. Evid. § 413 (2011). Pursuant to

the first complaint doctrine, [the courts] 'no longer permit in

evidence testimony from multiple complaint witnesses, limiting

the testimony to that of one witness' who, where feasible, will

be the first person told of the sexual assault. King, supra at

242-243. Such witness 'may testify to the details of the

alleged victim's first complaint of sexual assault and the

circumstances surrounding that first complaint as part of the

prosecution's case-in-chief.' Id. at 243. Where a first

complaint witness testifies at trial regarding the complaint,

the [alleged victim] also may testify about the details of the

first complaint and the reasons why it was made at that

particular time. See id. at 245. What the [alleged victim] may

not do, however, is testify to the fact that she 'told' others,

apart from the first complaint witness, about the sexual

assault, even where the details of the conversation have been

omitted. See Commonwealth v. Arana, 453 Mass. 214, 223 (2009)

. . . ; Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 493

(2009)." Aviles, supra at 67-68.

Since King, the cases have permitted the admission of more

than one complaint witness in a number of specified
 13

circumstances.13 In King itself, the court stated that the

"testimony of a complaint witness other than, and in lieu of,

the very 'first' complaint witness" is permitted where "the

first person told of the alleged assault is unavailable,

incompetent, or too young to testify meaningfully." King, supra

at 243-244. There, the judge had exercised discretion in

allowing two "fresh" complaint witnesses to testify so as to

corroborate that the child victim's complaints of sexual abuse

were "reasonably prompt." Id. at 233. The court saw no error.

Id. at 235-236. See Commonwealth v. Murungu, 450 Mass. 441,

445-446 (2008) ("The present case provides us an opportunity to

detail two such additional exceptions. The first is when the

encounter that the victim has with the first person does not

constitute a complaint, when, for example, the victim expresses

to that person unhappiness, upset or other such feelings, but

does not actually state that she has been sexually assaulted.

The second is when there is such a complaint, but the listener

has an obvious bias or motive to minimize or distort the

victim's remarks").

13
In addition, "while the first complaint testimony
prohibits the 'piling on' of multiple complaint witnesses,
Commonwealth v. Murungu, 450 Mass. 441, 442-443 (2008), it does
not exclude testimony that 'is otherwise independently
admissible' and serves a purpose 'other than to repeat the fact
of a complaint and thereby corroborate the [alleged victim's]
accusations.' Commonwealth v. Arana, 453 Mass. [at] 220-221,
229." Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). See
Commonwealth v. Aviles, 461 Mass. at 69.
 14

In Commonwealth v. Kebreau, 454 Mass. 287, 294 (2009), the

court held that the judge properly had allowed two first

complaint witnesses to testify because "the disclosures involved

multiple and increasingly more serious assaults during a lengthy

period. The two disclosures were made separately, one toward

the beginning and the other at the end of this period, and they

concerned significantly different types of assault." There, the

victim's mother was allowed to testify about her daughter's

complaint at the very beginning of the defendant's sexual abuse

of his daughter. At the time of the complaint, the victim was

in seventh or eighth grade and the offense itself was less

serious than what would follow. Because the abuse escalated

over a lengthy period, into the victim's college years, her

college academic advisor was permitted to testify about a

complaint of rape that the victim made at the end of that

period. Id. at 290. The court noted that "[t]he defendant was

charged separately with different offenses arising out of the

different circumstances," id. at 294, and that the "prosecutor

described with specificity the different acts encompassed by

each disclosure and the time period in which those acts

occurred." Id. at 296.

Several years after King, in Aviles, 461 Mass. at 72-73,

the court observed that "it ha[d] become apparent that trial

judges need greater flexibility to deal with the myriad factual
 15

scenarios that arise in the context of purported first complaint

evidence. Rules, because of their inherent inflexibility, tend

to break down when it becomes necessary to address factual

circumstances not yet contemplated by the established rubric.

Rather than considering the first complaint doctrine as an

evidentiary 'rule,' it makes greater sense to view the doctrine

as a body of governing principles to guide a trial judge on the

admissibility of first complaint evidence. . . . The judge who

is evaluating the facts of a particular case is in the best

position to determine the scope of admissible evidence, keeping

in mind the underlying goals of the first complaint doctrine,

our established first complaint jurisprudence, and our

guidelines for admitting or excluding relevant evidence. See

Mass. G. Evid. §§ 401-403 (2011)."

In this case, the defendant was charged with three separate

incidents of rape on July 8 and 11, each occurring under

different circumstances. The victim first disclosed the details

of the July 8 rape in her affidavit filed with the District

Court in support of her application for a restraining order.

The details of the July 11 rapes were first disclosed to

Detective Benedetti during his meeting with the victim on that

same day. To be sure, the court in Kebreau "emphasize[d] that

the Commonwealth may not introduce a 'parade of multiple

complaint witnesses' in a case involving repeated instances of
 16

abuse by a single defendant." 454 Mass. at 296, citing

Commonwealth v. Stuckich, 450 Mass. 449, 457 n.11 (2008).

However, this is not such a case.

Here, there were two types of first complaint evidence --

the restraining order affidavit and the detective's testimony --

each describing the victim's disclosure of separate rapes, on

different days, and each charged separately in indictments then

on trial. The July 8 and 11 rapes could have been tried

separately, and there is no question that, in individual trials,

first complaint evidence would have been permitted for each. In

addition, the trial judge carefully limited each piece of first

complaint evidence to the facts of one rape, thus forestalling

any multiple complaints about the same rape.

What happened in this case is therefore very different from

the "piling on" practice that was the focus of the court's

concern in King, 445 Mass. at 235-236.14 Nor did this case

14
"While attentive to the potential dangers of the
prejudicial 'piling on' of fresh complaint testimony, . . . our
courts have permitted two or more fresh complaint witnesses to
testify concerning the details of the complaint. See, e.g.,
Commonwealth v. Kirkpatrick, 423 Mass. 436, 444 (1996) (five
fresh complaint witnesses); Commonwealth v. Licata, 412 Mass.
654, 656 n.4, 660 (1992) (two fresh complaint witnesses);
Commonwealth v. Lavalley, [410 Mass. 641], 642 [(1991)] (five
fresh complaint witnesses and videotape of victim's complaint to
police not prejudicial); Commonwealth v. Brouillard, 40 Mass.
App. Ct. 448, 457 n.15 (1996) (four witnesses in case involving
two complainants and two defendants 'not in itself
impermissible'). Contrast Commonwealth v. Swain, 36 Mass. App.
Ct. 433, 442 (1994) (six witnesses prejudicial). [Under the
 17

present the situation that the court described in Kebreau and

many other cases, that is, ongoing abuse of a child victim with

many assaults on divers unspecified dates over a period of

years, charged in one or two complaints (or indictments).

"The primary goals of the first complaint doctrine were,

and still are, to 'refute any false inference that silence is

evidence of a lack of credibility on the part of [rape]

complainants,' . . . and 'to give the jury as complete a picture

as possible of how the accusation of [rape] first arose.'"

Aviles, 461 Mass. at 72, quoting from King, 445 Mass. at 243,

247. "[B]y allowing in evidence all the details of the first

complaint, the doctrine gives the fact finder 'the maximum

amount of information with which to assess the credibility of

the . . . complaint evidence as well as the over-all credibility

of the victim.'" Aviles, supra, quoting from Commonwealth v.

Licata, 412 Mass. 654, 659 (1992). See generally Mass. G. Evid.

§ 413 (2017). "The fact finder should not be left to speculate

on the evidence or to draw erroneous inferences due to

incomplete information." Aviles, supra, citing King, supra at

244-245.

then existing 'fresh' complaint rule,] [t]here was no error in
permitting two fresh complaint witnesses, especially where the
testimony of the two was minimally cumulative." King, 445 Mass.
at 235-236.
 18

Here, we are satisfied that the judge did not abuse his

discretion in admitting the evidence. See Commonwealth v. Roby,

462 Mass. 398, 410 (2012) ("The testimony furthered the goal of

the first complaint doctrine 'to give the jury as complete a

picture as possible of how the accusation of sexual assault

first arose.' [King, supra] at 247. 'That complete picture

. . . allow[ed] them to make a fairer and more accurate

assessment of the validity of that accusation, based on specific

information about the people involved rather than on outdated

stereotypes and generalities.' Id.").

b. Victim's testimony regarding January 1 and July 8

rapes. For the first time on appeal, the defendant argues that

the proper first complaint witness for the July 8 rape was the

victim witness advocate with whom the victim spoke, and not the

affidavit the victim filed in support of her restraining order

application. In the defendant's view, because the advocate did

not testify, the victim should not have been permitted to

testify about that conversation -- when she said that she

realized for the first time that what had happened to her was

wrong. See King, supra at 245 n.24 ("The [alleged victim] may

testify [to the details of the complaint] only if a first

complaint witness or a 'substitute' complaint witness . . . is

produced at trial who testifies regarding the complaint").
 19

This argument fails. First, the question which complaint

actually was the first complaint was properly addressed at a

pretrial hearing. See Stuckich, 450 Mass. at 455. At that

hearing, the judge determined that the victim's restraining

order affidavit filed in the District Court constituted her

first complaint about the July 8 rape. The defendant did not

object, and the redacted affidavit was admitted in evidence

without objection.15 Indeed, when the victim testified about the

July 8 rape, she agreed that the affidavit was "the first time

that [she] had disclosed in any fashion what had happened on

July 8 of 2013." Because the affidavit was the first disclosure

of the July 8 rape, it was admitted properly as first complaint

evidence.

Nonetheless, the defendant now claims that the advocate was

the proper first complaint witness as to the July 8 rape, as she

assisted the victim in filling out the paperwork and actually

"induced" the complaint of rape against the defendant. For this

argument, he relies on Commonwealth v. Revells, 78 Mass. App.

15
At the pretrial hearing, defense counsel agreed that a
redacted version of the affidavit should be admitted,
eliminating any mention of the July 11, 2013, rapes; however, he
went on to argue that, in the event the victim provided
contradictory testimony that expanded his cross-examination
about the July 11 rapes, he would not object to admission of the
entire affidavit. Defense counsel also objected to any
subsequent first complaint witness or testimony being admitted,
arguing it would be repetitive in nature and that it was the
prosecutor's choice to use only the affidavit as the first
complaint evidence for the July 8 rape.
 20

Ct. 492, 496 (2010), where the court permitted, but did not

require, introduction of intertwined oral and written complaint

evidence. Revells does not assist him. In the present case,

the victim's conversation with the advocate did not include the

complaint at issue, and the victim did not so testify at trial.

While the advocate's testimony might very well have been

admissible if proffered, there is no reason to suggest it was

mandatory in place of the affidavit.

Particularly having in mind that the defendant agreed to

the admission of the affidavit, we are satisfied that it was

"properly admitted 'to give the jury as complete a picture as

possible of how the accusation of sexual assault first arose.'"

Ibid., quoting from King, 445 Mass. at 247. As the defendant

did not object at any time to the admission of the affidavit --

or to testimony about the circumstances under which that

statement was made -- the argument that it should not have been

admitted is waived. We see no error and certainly no

substantial risk of a miscarriage of justice. See Roby, 462

Mass. at 409-410.

In addition, also for the first time, the defendant now

contends that the victim should not have been permitted to

testify that she told Detective Benedetti about the January 1

rape, because there was no corresponding first complaint
 21

testimony. As noted, the defendant did not object to that

testimony during the trial.

Even if, in the absence of a corroborating first complaint

witness, the victim should not have been permitted to testify

that she made a complaint, we see no substantial risk of a

miscarriage of justice. The victim's extremely brief testimony

about when she disclosed the January 1 rape was contradicted

both by the detective and, on cross-examination, by her own

admission that she was not sure when she had disclosed that

incident. That contradiction likely inured to the defendant's

benefit and he exploited it forcefully, as he did all of the

first complaint evidence.16 Under these circumstances, it is

unlikely that the statement affected the defendant adversely at

all. See Commonwealth v. McCoy, 456 Mass. 838, 851 (2010)

("Where the inconsistencies contained in the cumulative first

complaint testimony were more important to the defense than the

Commonwealth, there is no harm to the defendant. See

16
For example, in his closing argument, counsel said, "[The
victim's] story was never one that stayed the same. It changed
from telling to telling. It evolved and it became greater and
it added more details and it added other incidents as time went
on. It was never a consistent whole form. . . . Though she
testified on the stand, 'I didn't know even what he did was
rape,' which is her attempt at explaining why, when the police
come there, why they're separated, the police are in her
apartment, her alone, allowing her to describe what is the
problem. She never tells them that she was sexually assaulted.
She never mentioned that until later. Then the story grew and
grew and grew. That's why we're here today."
 22

Commonwealth v. Nardi, 452 Mass. 379, 395-396 [2008] [where

testimony erroneously admitted was equally, if not more,

important to defense, admission did not create substantial

likelihood of miscarriage of justice]"). See also Roby, 462

Mass. at 409 ("We add, in considering whether the admission of

the testimony created a substantial risk of a miscarriage of

justice, . . . that the testimony was brief and provided no

details of the alleged sexual encounter[]"). In addition, as it

relates to first complaint testimony, some inconsistency "is

expected, and will often aid the jury in determining whether the

[first] complaint testimony ultimately supports the

complainant's story." King, 445 Mass. at 235. "The weight and

credibility of the witnesses' testimony are solely for the fact

finder and are not proper subjects for appeal." Ibid.

c. Limiting instructions. Although the defendant did not

object at trial, he now claims that the judge erred, on two

occasions: (1) by not giving a limiting instruction on the use

of first complaint testimony at the time the victim testified

that she told Detective Benedetti about the January 1 rape, and

(2) by providing an incomplete instruction when Detective

Benedetti testified. We review his claim of error to determine

whether any omission created a substantial risk of a miscarriage

of justice. See Aviles, 461 Mass. at 72, citing McCoy, 456

Mass. at 850-852.
 23

King, supra at 248, teaches that limiting "instructions

should be given to the jury contemporaneously with the first

complaint testimony, and again during the final instructions."

However, "although a contemporaneous [first] complaint

instruction is recommended, it is 'not a strict requirement.'"

Commonwealth v. Edward, 75 Mass. App. Ct. 162, 166 (2009),

abrogated on other grounds by Commonwealth v. Lavoie, 464 Mass.

83, 88-89 (2013), quoting from Commonwealth v. Vieux, 41 Mass.

App. Ct. 526, 533 (1996), cert. denied, 520 U.S. 1245 (1997).

Here, before the victim testified about the July 11 rapes,

the judge gave a thorough limiting instruction about the use of

first complaint testimony. The defendant did not object. The

victim then testified briefly that, on July 11, 2013, she had

told Detective Benedetti about the circumstances of the rapes

that had occurred earlier that day. Immediately afterward, in

answer to the prosecutor's question, she said that she also had

told Benedetti about the January 1 rape. The argument that the

judge, minutes after giving a complete instruction (occupying

three pages of the transcript), should have repeated that same

instruction after two more questions is simply frivolous.

As to the defendant's second argument, prior to Benedetti's

testimony, the judge gave an abbreviated first complaint

instruction, referring to the "rather complicated" instruction

he had given the previous day. Again, while reciting the entire
 24

model instruction might have been preferable, because the

limiting instruction was given contemporaneously with the

detective's testimony, and referred to the full instruction

given the day before, it was sufficient, particularly in light

of the judge's thorough instruction in the final charge to the

jury the following day.

As we have said, in each instance, the instructions were

given without any objection. Nor did the defendant object to

the first complaint instruction in the final charge to the jury;

he does not challenge it here. We presume that the jury

followed the judge's proper instructions in assessing the first

complaint testimony. See Commonwealth v. Andrade, 468 Mass.

543, 549 (2014).

Conclusion. We are satisfied that the trial judge did not

abuse his discretion in admitting the challenged first complaint

evidence, and that proper instructions were provided timely to

the jury. The judgments are affirmed.

So ordered.