Commonwealth v. Mayotte

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SJC-11894

COMMONWEALTH vs. LINDA MAYOTTE.

Worcester. January 7, 2016. - August 19, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1

Rape. Indecent Assault and Battery. Child Abuse. Incest.
Reckless Endangerment of a Child. Intimidation of Witness.
Evidence, First complaint, State of mind, Impeachment of
credibility, Prior inconsistent statement. Witness,
Intimidation, Impeachment. Practice, Criminal, Sentence.

Indictments found and returned in the Superior Court
Department on March 18, 2010.

The cases were tried before Richard T. Tucker, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Eric S. Brandt, Committee for Public Counsel Services, for
the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.

1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
 2

HINES, J. A jury convicted the defendant, Linda Mayotte,

of rape of a child, G. L. c. 265, § 23 (three indictments);

indecent assault and battery on a child under the age of

fourteen, G. L. c. 265, § 13B (five indictments); indecent

assault and battery on a child over the age of fourteen, G. L.

c. 265, § 13H (five indictments); incest, G. L. c. 272, § 17;

reckless endangerment of a child, G. L. c. 265, § 13L;

intimidation of a witness, G. L. c. 268, § 13B; resisting

arrest, G. L. c. 268, § 32B; and unlawful possession of a

firearm without a firearm identification card, G. L. c. 269,

§ 10 (h).2 The victim in each of the charged sex offenses was

her adopted son, D.M.3 The defendant challenges the convictions

on three grounds: (1) error in the exclusion of first complaint

evidence relating to her defense that she was the victim, not

the perpetrator, of rape by the complainant; (2) error in the

exclusion of a statement proffered as evidence of the victim's

state of mind; and (3) insufficiency of the evidence to prove

the reckless endangerment indictment based on "serious bodily

2
The jury acquitted the defendant on seven additional
indictments charging her, on a joint venture theory, with sex
offenses committed against her adopted daughter, V.M. (a
pseudonym), by her husband, Joseph Mayotte. Joseph Mayotte was
convicted of rape of a child (two indictments), aggravated rape
of a child, indecent assault and battery on a child (three
indictments), assault with intent to rape, incest, dissemination
of matter harmful to a minor, reckless endangerment of a child,
and failure to secure a firearm.
3
A pseudonym.
 3

injury." The defendant also challenges her sentence, claiming

that the judge may have been influenced by improper factors

argued by the prosecutor. Because the application of the first

complaint doctrine to a defendant in a rape prosecution is a

question of first impression, we granted the defendant's

application for direct appellate review of all her claims.

For the reasons explained below, we conclude that the first

complaint rule is a neutral rule of evidence that permits such

testimony whenever the credibility of a sexual assault

allegation is at issue. Although the judge erred in ruling that

the defendant's first complaint evidence was inadmissible as a

matter of law, no prejudice resulted from the exclusion of the

evidence. We also reject the defendant's claim of error in the

exclusion of D.M.'s statement, proffered as evidence of his

state of mind, as it was not probative of or admissible as

evidence of the defendant's state of mind. We vacate the

conviction of reckless endangerment, however, because we agree

that the conduct proved at trial -- that the defendant

recklessly exposed V.M. to the risk of sexual abuse by Joseph

Mayotte -- was insufficient to establish the element of "serious

bodily injury" required under the indictment. Notwithstanding

any impropriety in the prosecutor's sentencing remarks, we

discern no basis to conclude that the judge was influenced by
 4

those remarks in sentencing the defendant, and therefore,

resentencing is not necessary.

Background. Based on evidence presented at trial, the jury

could have found the following facts. The defendant and her

husband, Joseph, married in 1987. After attempting to have

biological children, the Mayottes decided to adopt in 2003.

Approximately one year later, they adopted D.M. and V.M.,

siblings living in an orphanage in Kazakhstan. D.M. and V.M.

moved into the Mayotte home in August, 2004. D.M. was twelve

years of age, and V.M. was eight years of age.

After the Mayottes told the children that Joseph's parents

had died in the house, and that ghosts remained in the house,

V.M. became scared of sleeping in her own room. V.M. started to

sleep with Joseph; the defendant no longer slept in the bedroom.

On a regular basis, Joseph touched V.M.'s private areas,

penetrated her vagina and anus, and made her touch his penis.

Joseph also showed V.M. pornographic videotapes.

D.M., who struggled to learn English and felt alienated at

school, had chronic stomach pains.4 The defendant would massage

his stomach to help him sleep. Starting in January, 2005, the

defendant began initiating sexual contact with D.M., including

sexual intercourse. According to D.M., sexual contact occurred

4
The pains were later diagnosed as a gall bladder
condition, for which D.M. had surgery in 2006.
 5

more than one hundred times between January, 2005, and the

spring of 2007. During this time, D.M. made no complaint of

sexual abuse to the social worker who conducted home visits on

behalf of the adoption agency or the counsellor he saw for

twelve sessions. D.M. did not disclose the alleged abuse to his

best friend or even his sister, V.M. The sexual contact ceased

when the defendant became pregnant with D.M.'s child.5

On June 15, 2007, V.M. told two neighbor siblings that her

father, Joseph, had been touching her "private areas." The

neighbors' mother called the Department of Children and Families

(DCF), and that night, a police officer and a social worker

arrived at the Mayotte house to investigate. Each child was

asked separately if he or she had been or were being

inappropriately touched by a parent. Both children denied any

such conduct. The denials continued throughout DCF's follow-up

visits to the house during 2007. During one such visit, D.M.

told an investigator that he "thought the whole thing was BS."

In April, 2009, V.M. told D.M.'s girl friend about her

father's abuse. The girl friend's mother spoke to the defendant

and notified DCF. The defendant and the defendant's friend,

Edward Kassor, questioned V.M. in front of the girl friend and

the girl friend's mother. DCF initiated a second investigation

5
The defendant gave birth on January 16, 2008.
Deoxyribonucleic acid tests proved that D.M. was the baby's
father.
 6

of the family, and during a May, 2009, house visit, D.M. again

told DCF representatives that he was not being abused.

After two years of denying sexual abuse, D.M. made his

first complaint on June 4, 2009. He made the disclosure after

the defendant sent him a text message threatening to report him

to the police because he had stolen items of her jewelry. D.M.

was visibly upset after receiving the message and fought with

his girl friend. When pressed, D.M. told his girlfriend about

the defendant's sexual acts. The girl friend insisted that D.M.

inform the authorities. That same evening, DCF removed D.M. and

V.M. from the Mayotte home.

The defendant testified that she did not rape D.M. and that

D.M. used physical force and threats to force her participation

in sexual acts with him. According to her testimony, D.M.

became sexually "aggressive" in the spring of 2005. On separate

occasions, D.M. threw her down on the bed and pinned her arms to

her body; grabbed her arm and forced her to the bed; and threw

her against a bureau after she bit him while attempting to get

away. The defendant testified that she was "trying to still say

no" but that "things would escalate very quickly." She claimed

that D.M. put his hands on her throat, placed a knife to her

throat, and punched her. As for the alleged threats, the

defendant testified that D.M.'s "favorite" threat was that he

would "go to the police and say that [she] was raping him."
 7

According to the defendant, D.M. made this threat "[e]very time

he didn't like [the defendant's] reaction" to his advances. The

defendant claimed that this ongoing threat was the reason why

she did not make her own first complaint for almost five years

after the alleged abuse by D.M. began. D.M. admitted that he

would punch holes in his bedroom wall when he was angry, but

denied any use of force or coercion against the defendant.

Discussion. 1. First complaint doctrine. The defendant

filed a pretrial motion to present "first complaint" testimony

from Kassor, in support of her theory of defense that D.M.,

"wise beyond his years," raped the defendant and controlled her

behavior by threatening to make a false allegation of rape.

After a hearing, the trial judge denied the motion, reasoning

that "[t]he first complaint protocol and doctrine [were] not to

curb any abuses of defendants being prejudiced by not explaining

themselves. They don't have to explain themselves. The law

doesn't require it, and every judge instructs a jury that they

do not have to explain themselves. So there's no prejudice if

she never made a statement."

On appeal, the defendant urges us to permit the application

of the first complaint doctrine to a sexual assault defendant

whose defense at trial is that she was the victim of a sexual

assault by the complainant rather than the perpetrator. She

argues that the first complaint doctrine applies for the benefit
 8

of any party who makes an allegation of sexual assault that is

contested by the alleged perpetrator. In the alternative, she

argues that the proffered evidence is independently admissible

as the Commonwealth "opened the door" by eliciting testimony

from multiple witnesses that the defendant "never" complained to

anyone about her charge that she was raped by the complainant.

The Commonwealth counters that (1) the doctrine of first

complaint applies only to statements made by a complaining

witness in a sexual assault prosecution, and (2) the defendant's

statement was inadmissible hearsay.

We agree with the defendant that the first complaint rule

is a neutral rule of evidence, applicable whenever the

credibility of a sexual assault allegation is at issue. In the

circumstances of this case, however, the judge's error in

excluding the defendant's first complaint as a matter of law did

not result in prejudice to the defendant. Because the

defendant's first complaint proffer would have been insufficient

in any event to rebut the Commonwealth's assertion that she

"never" complained of rape by the complainant, we reject her

claim that it was independently admissible as a prior consistent

statement. Last, we reject summarily the Commonwealth's

argument that such testimony should be deemed inadmissible on

hearsay grounds because, consistent with the purpose of the
 9

first complaint doctrine, such evidence was not offered for its

truth.

a. Origin of first complaint doctrine. In resolving the

issue before us, we are guided by what we have understood to be

the rationale underlying the first complaint doctrine.

Previously termed the "fresh complaint" rule, the first

complaint doctrine is based on an English common-law assumption

that a rape victim who did not immediately speak out about the

sexual assault "was in effect [asserting] that nothing violent

had been done." Commonwealth v. King, 445 Mass. 217, 228-229

(2005), cert. denied, 546 U.S. 1216 (2006), quoting Anderson,

The Legacy of the Prompt Complaint Requirement, Corroboration

Requirement, and Cautionary Instructions on Campus Sexual

Assault, 84 B.U. L. Rev. 945, 978 & n.198 (2004). "American

courts, in turn, endorsed the belief that the failure of a rape

victim to make a prompt complaint of a sexual assault was akin

to an inconsistent statement at odds with the complainant's

court room testimony about the rape." King, supra at 229. The

fresh complaint doctrine addressed three concerns regarding

potential juror bias in a rape prosecution: that jurors may

still believe that a true rape victim immediately discloses the

assault; that jurors may draw adverse inferences from the

absence of evidence suggesting a prompt complaint; and that
 10

jurors remain skeptical of rape allegations.6 Id. at 230. As a

result, prosecutors are permitted to rebut any inference of

fabrication with witness testimony that the complainant did in

fact tell someone, and that the complaint was prompt or "fresh."

Id. at 229.

In King, 445 Mass. at 237-238, this court replaced the

"fresh complaint" rule with the "first complaint" doctrine, in

recognition of empirical studies showing that immediate

disclosure of sexual assault is not universal. We determined

that "ostensible 'delay' in disclosing a sexual assault is not a

reason for excluding evidence of the initial complaint; the

timing of a complaint is simply one factor the jury may consider

in weighing the complainant's testimony." Id. at 242. In

balancing the competing interests, we limited first complaint

testimony to that of one witness -- the first person told of the

assault. Id. at 243. We were mindful that multiple complaint

witnesses could "unfairly enhance a complainant's credibility as

6
Because "a child's circumstances commonly make it
difficult, if not impossible, for the child to make a prompt
complaint of sexual assault," Commonwealth v. Montanez, 439
Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing
Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), we
expanded the fresh complaint rule to permit "a child's much
later report of sexual assault . . . whenever there is a
reasonable explanation for the child's failure to make a prompt
complaint." Montanez, supra. We later applied this reasoning
to adult complainants. See Commonwealth v. King, 445 Mass. 217,
240 (2005), cert. denied, 546 U.S. 1216 (2006).
 11

well as prejudice the defendant by repeating for the jury the

often horrific details of an alleged crime." Id.

b. Scope of first complaint doctrine. Although the issue

has arisen solely in the context of a jury's assessment of the

credibility of a complaining witness in a sexual assault

prosecution, nothing in our jurisprudence precludes the

application of the first complaint doctrine to a defendant in a

sexual assault prosecution. As demonstrated by our cases, the

first complaint rule owes its genesis to the confluence of two

factors: (1) that the central issue is a sexual assault rather

than some other nonsexual crime; and (2) the need to provide to

the jury "as complete a picture as possible of how the

accusation of sexual assault first arose." King, 445 Mass. at

247. At its core, therefore, the doctrine exists to facilitate

credibility determinations where an allegation of sexual assault

is at issue. This purpose is no less important when a jury is

called upon to assess such an allegation made by a defendant.

Even when the first complaint rule was assumed to be

available only to the named complainant in a sexual assault

prosecution, we stressed the importance of an informed

determination of credibility: "The doctrine . . . is not

intended to be used as a shield to bar the jury from obtaining a

fair and accurate picture of the Commonwealth's case-in-chief."

Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009). In a
 12

similar vein, we ask whether the application of the doctrine to

a defendant in a sexual assault prosecution undermines or

otherwise perverts this purpose. It does not. The issue of

witness credibility is the same whether the person claiming such

assault is the defendant or the complainant. A defendant in a

sexual assault prosecution, who claims to have been so assaulted

by the complainant, faces the same credibility obstacle in

proving his or her defense as the Commonwealth faces in proving

the indictment. In our view, therefore, the identity of the

party making the allegation of sexual assault does not dictate

the application of the doctrine. The defendant is no less

entitled than the Commonwealth to the benefit of a principle

intended to mitigate the inherent obstacles to establishing the

credibility of a sexual assault allegation.

Our reluctance to limit the application of this doctrine

for the benefit of the Commonwealth reflects the concern we

expressed in Commonwealth v. Morales, 464 Mass. 302, 308-310

(2013), that one-sided evidentiary rules are inherently unfair.

In Morales, we rejected the defendant's argument that the rule

we articulated in Commonwealth v. Adjutant, 443 Mass. 649, 650

(2005) (permitting defendant to show prior acts of violence by

victim), should apply only to the defendant. Morales, supra at

309. We noted that if evidence of "prior acts of violence by

the victim will assist a jury . . . , it follows that evidence
 13

of [such acts] committed by the defendant will do the same."

Id. Thus, in deference to the same fairness concerns, we are

persuaded that the first complaint doctrine must be neutral, and

that it may apply whenever the credibility of a sexual assault

allegation is a live issue in the case.

The Commonwealth argues that application of the first

complaint doctrine to defendants will cause jury confusion as

well as create a trial within a trial. We agree with the

defendant, however, that such concerns do not militate against

allowing a defendant in a sexual assault prosecution to proffer

first complaint evidence. The matter properly may be relegated

to the trial judge who, in the exercise of his or her

discretion, is adequately equipped by the existing rules of

evidence to prevent any such confusion. See generally Mass. G.

Evid. §§ 403, 413 (2016). See also Mass. R. Crim. P. 11 (a),

(b), as appearing in 442 Mass. 1509 (2004); Mass. R. Crim. P.

14 (a) (1) (B), as amended, 444 Mass. 1501 (2005).

2. The defendant's first complaint evidence. Having

determined that a defendant in a sexual assault prosecution may

offer first complaint evidence as part of the defense to the

charge, we review the judge's ruling to determine if it resulted

in prejudice to the defendant. Here, defense counsel objected

numerous times to the judge's rulings on the defendant's proffer

of first complaint evidence. Counsel objected at the motion
 14

hearing and the judge affirmatively recognized the objection on

the record. Counsel then renewed the objection at trial.

Because the issue was preserved, we review the decision "to

ensure 'that the error[s] did not influence the jury or had but

very slight effect.'" Arana, 453 Mass. at 228, quoting

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Reviewing the error under this standard, we discern no

prejudice to the defendant. The defendant's proffer did not

specify any details of the proposed testimony. The sole

reference to the substance of the testimony was as follows:

"This testimony would be elicited from Edward Kassor, a close

friend of [the defendant's]." In the absence of any necessary

details, this proffer would have had little or no probative

value as first complaint testimony. Had the judge considered

the proffer, rather than denying it as a matter of law,

clarification would have been required. Further inquiry would

have revealed the defendant's equivocal statement to the police

that she "tried to tell [her] friend Ed," which falls short of

an affirmation that she did in fact disclose the alleged rape by

the complaining witness. See Commonwealth v. Murungu, 450 Mass.

441, 445-446 (2008) (expressions of "unhappiness, upset or other

such feelings" not statement of sexual assault). Considering

the vague nature of the defendant's proffer and the strength of

the Commonwealth's case, we are persuaded that the omission of
 15

her first complaint evidence "did not influence the jury or had

but very slight effect" (citation omitted). Flebotte, 417 Mass.

at 353.

As to the defendant's claim that her first complaint

testimony was independently admissible because the Commonwealth

"opened the door" with its questions to various witnesses, see

Commonwealth v. Kebreau, 454 Mass. 287, 298-299 (2009)

(admitting statement of sexual assault for purpose of

rehabilitation), we discern no error in the judge's exclusion of

her statement on this ground.

"[A] prior consistent statement made before the witness had

incentive to fabricate may be admitted for the limited purpose

of rebutting the claim of recent fabrication." Commonwealth v.

Tennison, 440 Mass. 553, 563 (2003). See Mass. G. Evid.

§ 613(b)(2) (2016). However, "the impeachment of a witness by

prior inconsistent statements or omissions does not, standing

alone, entitle the adverse party to introduce other prior

statements made by the witness that are consistent with [her]

trial testimony." Commonwealth v. Bruce, 61 Mass. App. Ct. 474,

482 (2004), citing Commonwealth v. Retkovitz, 222 Mass. 245,

249-250 (1915).

The defendant complains that the prosecutor elicited

testimony from numerous witnesses, establishing that the

defendant did not disclose the alleged rape to them
 16

individually. The substance and the timing of the statement are

dispositive of this claim. First, the statement allegedly made

to Kassor was ambiguous, and thus not a prior consistent

statement in that it did not explicitly assert a claim of rape.

Indeed, the proffered statement was neither a first complaint

nor corroboration of a first complaint. See Murungu, 450 Mass.

at 445-446. Second, it was undisputed that the defendant did

not make the statement until after D.M. had made his complaint

and after both children had been removed from the home.

Commonwealth v. Rivera, 430 Mass. 91, 99–100 (1999) (prior

consistent statement made after motive to fabricate arose

inadmissible). Therefore, the judge committed no error in

excluding the alleged statement from the evidence on this

ground.

3. Exclusion of D.M.'s statement. The defendant filed a

separate motion in limine, seeking to introduce D.M.'s statement

to his grandfather, "I can beat any system," as evidence

probative of the defendant's state of mind. More specifically,

the defendant proffered the statement to establish that she felt

"powerless" in her parental relationship with D.M., such that

she succumbed to his threats and was forced into sexual conduct

with him. Citing Commonwealth v. Benjamin, 430 Mass. 673, 679

(2000), the judge denied the motion on the ground that "[p]rior

bad acts of the victim and its effect on the state of mind of a
 17

defendant is allowed only in self-defense cases." The judge

ruled that defense counsel was permitted to ask D.M., "Do you

believe you can beat any system?" However, after D.M.

responded, "No," counsel was not allowed to impeach him by

calling the grandfather as a witness for that purpose.

The judge properly excluded the grandfather's testimony as

hearsay because it was not shown to relate to either D.M.'s or

the defendant's state of mind. Admissibility required a

demonstrated nexus between D.M.'s statement and the defendant's

state of mind. On this record, however, the defendant failed to

make an adequate showing that D.M.'s statement was related to

the rape prosecution, that the defendant was aware of it, and

that it was a factor in the charged conduct. In the absence of

these facts as a foundation for admissibility, we do not fault

the judge's ruling that D.M.'s statement did not bear on the

defendant's state of mind.

However, we agree with the defendant that the judge should

have allowed defense counsel to impeach D.M. with his statement

to the grandfather. See Commonwealth v. Mahar, 430 Mass. 643,

649-650 (2000) (adopting proposed Mass. G. Evid. § 806 to permit

impeachment by prior inconsistent statement). The modified

question, "Do you believe you can beat any system?" permitted by

the judge did not accomplish this purpose. Without the ability

to establish D.M. as the declarant in boasting of his ability to
 18

"beat any system," defense counsel lost the benefit of

impeachment of D.M. with his prior inconsistent statement.

Nonetheless, this limit on impeachment did not result in

prejudice to the defendant. See Commonwealth v. Roberts, 433

Mass. 45, 51 (2000); Commonwealth v. Smiledge, 419 Mass. 156,

159 (1994). In allowing the modified question, the judge "did

not preclude all inquiry" on the issue. Commonwealth v. Tweedy,

54 Mass. App. Ct. 56, 60 (2002).

4. Reckless endangerment indictment. The defendant claims

the indictment charging reckless endangerment of a child on the

basis of serious bodily injury was not proved and, therefore,

the resulting conviction must be reversed. We agree.

"[A]rticle 12 of the [Massachusetts Declaration] of Rights

. . . requires only such particularity of allegation as may be

of service to a person charged with crime in enabling him [or

her] to understand the charge and prepare him [or her] defense."

Commonwealth v. Farmer, 218 Mass. 507, 509 (1914); G. L. c. 277,

§ 34. "An indictment conforming with the statutory form is

sufficient." Commonwealth v. Baron, 356 Mass. 362, 364 (1969).

However, an indictment that entirely omits a charge or does not

conform to the substance of the statutory language defining the

elements of the crime does not offer a defendant adequate notice

of the nature of the charges against him or her. See

Commonwealth v. Garrett, 473 Mass. 257, 267 n.12 (2015)
 19

(indictment for armed robbery with firearm cannot support

conviction of armed robbery with dangerous weapon).

Here, a grand jury indicted the defendant on one charge of

recklessly exposing V.M. to "a substantial risk of serious

bodily injury," pursuant to G. L. c. 265, § 13L. The indictment

omitted completely any reference to the alternative theory on

which the charge might be brought, "sexual abuse" of the child.

See G. L. c. 265, § 13L. As defined in the statute, "serious

bodily injury" results in "permanent disfigurement, protracted

loss or impairment of a bodily function, limb or organ, or

substantial risk of death." G. L. c. 265, § 13L. The

Commonwealth presented no evidence at trial regarding serious

bodily injury to V.M. The evidence related entirely to the

defendant's responsibility for her husband's sexual abuse of

V.M. The judge, however, introduced the theory that the

defendant recklessly exposed V.M. to a substantial risk of

"sexual abuse" during his instructions to the jury. In doing

so, he improperly expanded the indictment to encompass both

theories of liability. See Garrett, 473 Mass. at 267. The end

result is that the defendant was convicted of a crime for which

she had not been indicted by a grand jury. See Commonwealth v.

Barbosa, 421 Mass. 547, 554 (1995) (art. 12 bars felony

conviction without grand jury indictment). Therefore, we

disagree with the Commonwealth that the reckless endangerment
 20

charge based on sexual abuse was "contextualized" by a "multi-

count indictment" that included numerous sexual assault charges.

Due process requires that defendants be given sufficient notice

of the charges against them, notice that was not given here.

Farmer, 218 Mass. at 509.

5. Sentencing. The defendant requests resentencing

because the prosecutor made numerous improper statements at

sentencing that potentially could have influenced the judge's

determinations. Specifically, the prosecution urged the court

to "send a message to the defendants in the community of

Worcester County" that crimes against children would not be

tolerated. The prosecutor also stated that the defendant had

"lied" and had "falsely accused" the victims. Without comment,

the judge sentenced the defendant to three concurrent terms of

from eighteen to twenty-two years in State prison -- lower than

the sentence of from thirty to thirty-three years requested by

the Commonwealth and higher than the sentence of from five to

seven years recommended by the defendant.

A sentencing judge enjoys significant latitude in

sentencing. Commonwealth v. Celeste, 358 Mass. 307, 310 (1970).

We will not vacate a sentence "unless we have been able to

identify clear legal error." Commonwealth v. Woodward, 427

Mass. 659, 685 (1998). Where there is a "suggestion of

impropriety," Commonwealth v. Stuckich, 450 Mass. 449, 462
 21

(2008), the judge may voluntarily and explicitly reject reliance

on improper arguments. See Commonwealth v. Goodwin, 414 Mass.

88, 91-92 & n.3 (1993). However, a judge's decision not to

disavow such arguments explicitly does not in and of itself

provide evidence that a judge deviated from his or her duty.

Goodwin, supra at 92.

Although the Commonwealth concedes that it was improper to

ask the judge to "send a message" to the Worcester County

community regarding crimes against children, we are not

persuaded that the judge considered the prosecutor's comments.

We affirm the defendant's sentences, except as to that imposed

on the reckless endangerment conviction.

Conclusion. We conclude that a defendant may proffer first

complaint evidence where the defendant claims to be the victim

of sexual assault and that claim is a live issue in the case.

The exclusion of the defendant's first complaint, however, did

not result in prejudice. We vacate the defendant's judgment of

conviction as to the charge of reckless endangerment and order

judgment for the defendant as to that charge. We affirm the

other judgments of conviction.

So ordered.