Commonwealth v. Paul Fagundes. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-657
COMMONWEALTH
vs.
PAUL FAGUNDES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of rape of a
child with force in violation of G. L. c. 265, § 22A; rape of a
child aggravated by age, G. L. c. 265, § 23A (a); rape of a
child, G. L. c. 265, § 23; two counts of indecent assault and
battery on a child under fourteen, G. L. c. 265, § 13B; assault
and battery, G. L. c. 265, § 13A; and threats to kill, G. L.
c. 275, § 4.1 On appeal, the defendant claims that (1) the judge
erred in denying a new trial where the jury were exposed to
extraneous material; (2) an indecent assault and battery
conviction was duplicative of two of the rape convictions, which
were also duplicative of each other; (3) the judge allowed
improper evidence to be admitted; and (4) the Commonwealth made
1 The jury acquitted him of one count of rape of a child with
force in violation of G. L. c. 265, § 22B.
improper remarks in its closing argument. Concluding that one
count of indecent assault and battery is duplicative of the rape
counts, we vacate that conviction. We otherwise affirm.
Background. The Commonwealth presented the following
evidence. On weekends when the victim was in elementary school,
she frequently stayed overnight at her paternal grandmother's
house. The defendant, who is the victim's uncle, lived with the
grandmother. One morning, the defendant entered the room the
victim shared with the grandmother and asked the victim if she
wanted to watch cartoons. They went into the living room, where
the defendant gave the victim juice and snacks while she watched
television. Eventually, she fell back asleep. The victim woke
up to the defendant touching and inserting his finger into her
vagina. She testified that "it was just that time that he only
did that, but every other time he would do that and more." On
those subsequent occasions, instead of asking the victim to
watch cartoons in the living room, the defendant took her to his
bedroom, sometimes by dragging her out of bed. There, the
defendant anally raped her, inserted his hands into her vagina,
and made her touch his penis. He also pulled her hair, hit her
head on furniture, swore at her, and one time put a knife to her
throat. Although it was unclear how frequently these assaults
occurred, they stopped before the victim went to middle school,
when the defendant moved out of the house.
2
Discussion. 1. Extraneous material. "When there is a
claim of extraneous influence on a jury, a two-step procedure is
to be followed. First, the defendant bears the burden of
demonstrating that the jury were in fact exposed to the
extraneous matter. To meet this burden [the defendant] may rely
on juror testimony. If the defendant meets this burden and the
judge finds that extraneous matter came to the attention of the
jury, the burden then shifts to the Commonwealth to show beyond
a reasonable doubt that [the defendant] was not prejudiced by
the extraneous matter" (quotations and citation omitted).
Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). We review
for clear error. Id. at 387.
Here, it is evident that the judge followed the proper
procedure. The day after the verdict, a juror reported hearing
comments during deliberations about the defendant's "gang
tattoo"2 and global positioning system (GPS) ankle monitor. The
judge conducted an individual voir dire of each of the jurors.
During her inquiry, the judge assessed the extent of each
juror's exposure to the material and any discussion about it
among the jurors.
Based on the voir dires, the judge determined that several
jurors were exposed to the extraneous materials, however, any
2 The tattoo, on the defendant's left hand, consisted of stars
arranged in the shape of a moon.
3
juror comments about the defendant's tattoo and ankle bracelet
were "speculative in nature, unsupported by any claim of
personal knowledge or experience and would be received as such
by the average hypothetical jury." See Kincaid, 444 Mass. at
389 (judge required to "focus on the probable effect of the
extraneous fact on a 'hypothetical average jury'" [citation
omitted]). She observed that the tattoo was "pretty innocuous"
and did not instill fear of gang retribution, and that jurors
"shrugged . . . off" comments about gang relation. The judge
also concluded that the Commonwealth had presented "overwhelming
evidence" at trial of the defendant's guilt, including the
victim's "compelling, detailed testimony" and the testimony of a
credible first complaint witness who corroborated details
concerning key evidence.3 See id. (judge may consider
overwhelming evidence of guilt). The judge aptly pointed out
that the tattoo and GPS bracelet were "insignificant in deciding
the defendant's guilt" because it was a case of "interfamilial
sexual abuse [that] did not implicate concerns and dynamics
surrounding gang issues." See id. (judge may consider whether
extraneous materials produced such high probability of prejudice
that error must be inferred). We thus discern no error in the
3 The judge further indicated that in "distinct contrast to the
victim's compelling testimony and the corroborating testimony of
her brother, the defendant's testimony was not credible" because
of inconsistencies on critical issues.
4
judge's conclusion that a new trial was not required because the
Commonwealth demonstrated beyond a reasonable doubt that the
extraneous material did not prejudice the defendant. Id. at
386. See Commonwealth v. Colon, 482 Mass. 162, 167-168 (2019).
2. Duplicative convictions. a. Indecent assault and
battery. We agree with the defendant's argument that the
indecent assault and battery count of the indictment, for
"touching of the vagina without penetration" (count five), was
duplicative of the counts charging rape of a child by digital
penetration (counts two and four).4 "Indecent assault and
battery is a lesser included offense of rape of a child by
force. . . . The difference between the two offenses is the
element of penetration." Commonwealth v. Donlan, 436 Mass. 329,
335-336 (2002). The element of penetration required for a rape
conviction is satisfied by evidence that a defendant "touched or
came into contact with the victim's vagina, vulva, or labia."
Id. at 336. Here, the Commonwealth's theory of indecent assault
and battery underlying count five was that the defendant
"touched [the victim's] vagina not inside, but outside."
Indeed, for this charge of indecent assault and battery, the
judge instructed the jury that they must be satisfied that the
4 The indecent assault and battery counts did not identify the
particular type of touching alleged, however, it was specified
on the verdict slips.
5
Commonwealth proved "touching of the vagina without
penetration." As noted above, however, that is not the law.
Touching of the vagina is, by definition, penetration. See
Donlan, supra. Because the victim described no distinct
touching of her genital area that did not involve touching her
vagina, the conviction of count five is duplicative of the
convictions of counts two and four and must be vacated. See
Commonwealth v. Vick, 454 Mass. 418, 431 (2009).
b. Digital rapes. We disagree with the defendant's
contention that the two separate counts for digital rape were
duplicative of each other. The indictment and verdict slips for
counts two and four indicated two different time frames that did
not overlap, and the judge instructed the jury that the
Commonwealth must prove that the offense charged by each count
of the indictment occurred in the respective time frame.
Because the victim testified to multiple incidents in both time
periods that could support the offenses, counts two and four of
the indictment were not duplicative. See Commonwealth v.
Rodriguez, 83 Mass. App. Ct. 267, 273 (2013) (offenses not
duplicative where verdict slip indicated charge premised on
victim's testimony regarding separate act).
3. Evidentiary issues. a. Nurse's testimony and medical
records. We are not persuaded by the defendant's argument that
the sexual assault nurse examiner (SANE) nurse's testimony,
6
combined with the admission of medical records, impermissibly
implied that the victim was sexually assaulted. The SANE nurse
testified generally about the procedures involved in SANE
examinations. She was clear that she never examined the victim.
The nurse also opined that medical tests, particularly when
performed outside an acute timeframe, rarely show evidence of
penetration or trauma. Although she did refer to the victim's
medical records once during direct examination, the nurse's
testimony "did no more than give the jury information concerning
the medical interpretation of an absence of any physical
evidence of penetration; namely, such a finding does not exclude
that sexual abuse occurred." Commonwealth v. Quincy Q., 434
Mass. 859, 872 (2001), quoting Commonwealth v. Colon, 49 Mass.
App. Ct. 289, 293 (2000).
Despite assenting to the admission of the victim's redacted
medical records, the defendant now contends that portions of the
records that mentioned "date of incident," "assault city,"
"timing of last contact," and "most recent contact occurred
greater than 6 months ago," in conjunction with the SANE nurse's
testimony, created a substantial risk of miscarriage of justice.
However, the records ultimately reflect a finding that the
victim's examination was "within normal limits" and the
"[a]bsence of specific findings neither confirms nor denies that
abuse has occurred." On this record, we discern no risk of
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miscarriage of justice. See Commonwealth v. Dargon, 457 Mass.
387, 397 (2010) ("references to 'assault' and 'assailant' that
permeated" SANE records did not give rise to substantial risk of
miscarriage of justice).
b. Defendant's "anger issues". The jury heard two
references to the defendant's "anger issues." In a recorded
interview with police the Commonwealth played for the jury, the
defendant stated, "I got anger problems. I'm not gonna lie, I
got anger problems." Then, during the prosecutor's cross-
examination, the defendant confirmed that he had an "anger
issue." The defendant now contends that this was inadmissible
character evidence. We review for a substantial risk of a
miscarriage of justice.5
"It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved, indictably
or not, for the purposes of showing his bad character or
propensity to commit the crime charged." Commonwealth v.
Mullane, 445 Mass. 702, 708 (2006), quoting Commonwealth v.
5 The defendant filed a motion in limine to exclude various
statements he made during the police interview, including that
"he has anger problems," on the ground that they were "extremely
prejudicial" to his case. He also contested admission of the
video as evidence because it showed him in handcuffs. The first
time the defendant raises the argument that the statements were
impermissible character evidence is on appeal. See Commonwealth
v. Seino, 479 Mass. 463, 470 n.10 (2018) (motion in limine does
not preserve objection on different ground).
8
Helfant, 398 Mass. 214, 224 (1986). We are not persuaded by the
Commonwealth's argument that the defendant's statements
regarding general anger issues were relevant to his state of
mind when he sexually assaulted the victim and corroborated her
account of violence during the assaults. See Commonwealth v.
Bonds, 445 Mass. 821, 829 (2006) ("evidence of a person's
character is not admissible to prove that he acted in conformity
with that character on a particular occasion" [citation
omitted]). To the contrary, it was error for the Commonwealth
to present evidence showing the defendant had a propensity for
anger to show he possessed the capacity to commit violence
against the victim.
"An error creates a substantial risk of a miscarriage of
justice unless we are persuaded that it did not 'materially
influence[]' the guilty verdict." Commonwealth v. Alphas, 430
Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass.
556, 564 (1967). We conclude that this error did not meet that
standard. The Commonwealth's case was strong by virtue of the
victim's testimony that the defendant repeatedly assaulted her
and the corroborative testimony of the first complaint witness.
Furthermore, notwithstanding the inclusion of references to the
defendant's "anger issues," the jury found him not guilty of the
offense of rape of a child with force by use of a dangerous
weapon (a knife). See Commonwealth v. Sherman, 481 Mass. 464,
9
478 (2019) ("where the jury acquitted the defendant of one of
the . . . rape charges, we conclude that it is unlikely that the
[improperly admitted] evidence was given significant weight in
the jury's evaluation of the defendant's testimony or
culpability").
4. Closing argument. The defendant asserts that the
prosecutor implied the victim made prior consistent statements,
misstated the meaning of an inconsistent statement, and
improperly vouched for the victim's credibility. The defendant
did not object to the prosecutor's closing argument. Therefore,
our review is "to determine whether the statements were error,
and, if so, whether they created a substantial risk of a
miscarriage of justice." Commonwealth v. Sanchez, 96 Mass. App.
Ct. 1, 9 (2019).
a. Consistent and inconsistent statements. During cross-
examination, defense counsel sought to impeach the victim by
referencing statements the victim did not disclose during an
earlier interview at the Children's Advocacy Center (CAC).6 In
closing argument, the prosecutor made the following remarks:
"[S]he didn't tell them every detail. And I would submit
to you that's not an inconsistent statement because
somebody didn't ask her a certain question, or she may not
have so told a certain detail, doesn't make it
6 The victim's testimony that defense counsel argued was omitted
from the CAC interview was that the defendant hit the victim's
head against furniture, "clicked" his teeth with a tongue ring,
and tried to contact the victim at a later date.
10
inconsistent. It's just more information. Now if she had
been inconsistent for an hour, don't you think he would
have brought that up over and over and over again to you?
But he focused on things that she didn't say."
"A prior inconsistent statement is one that either by what
it says or by what it omits to say, affords some indication that
the fact was different from the testimony of the witness whom it
is sought to contradict. . . . An omission from the earlier
statement is inconsistent with a later statement of fact when it
would have been natural to include the fact in the initial
statement" (quotation and citation omitted). Commonwealth v.
Ortiz, 39 Mass. App. Ct. 70, 72 (1995). While the prosecutor's
definition of an inconsistent statement was not technically
correct, we discern no substantial risk of a miscarriage of
justice where the judge instructed the jury that closing
arguments were not evidence and provided a correct definition
for an inconsistent statement.7 See Commonwealth v. Olmande, 84
Mass. App. Ct. 213, 237 (2013).
b. Vouching. Next, the defendant contends that the
prosecutor improperly vouched for the victim's credibility by
7 The judge instructed the jury:
"To qualify as inconsistent, it is not necessary that the
prior statement contradict in plain terms the testimony of
the witness. It's enough to say the statement taken as a
whole, either by what it says or by what it omits to say,
affords some indication that the fact was different from
the testimony of a witness."
11
arguing that the victim should be believed because she discussed
an alleged sexual assault with strangers. The prosecutor argued
in closing:
"Conversations are going to differ depending on who you're
talking to. 2017 she is talking to a total stranger. What
is the total stranger asking her about? Sexual acts. I
submit [to] you that that's pretty hard to talk about,
especially if it is a sexual assault. He is suggesting to
[you] that she's fabricating. She is going to make all
this up, all these humiliating, I would submit to you,
details. And they're complex. If you're going to make it
up keep it simple, right, because you're going to have to
get up there and talk about it."
At the outset, we disagree with the defendant's
characterization of the prosecutor's argument as bolstering the
victim's credibility because she testified. Instead, the
prosecutor argued why the victim was not fully forthcoming in
the initial CAC interview. This is a material and meaningful
difference because the prosecutor did not impermissibly suggest
that the victim was entitled to greater credibility merely
because she was willing to testify. See Commonwealth v.
Helberg, 73 Mass. App. Ct. 175, 179 (2008).
Furthermore, "[w]here credibility is at issue, it is
certainly proper for counsel to argue from the evidence why a
witness should be believed." Commonwealth v. Raposa, 440 Mass.
684, 694-695 (2004), quoting Commonwealth v. Thomas, 401 Mass.
109, 116 (1987). Where the defense's theory of the case was
that the victim fabricated the events, it was not improper for
12
the prosecutor to rebut the defendant's attack on the victim's
credibility by saying that it would make no sense, if
fabricating, for the victim to create a complicated story. See
id. Viewing the challenged remarks "in the context of the
entire argument, and in light of the judge's instructions to the
jury and the evidence at trial," we conclude that they were
within the bounds of permissible argument. Commonwealth v.
Kolenovic, 478 Mass. 189, 199 (2017), quoting Commonwealth v.
Gaynor, 443 Mass. 245, 273 (2005).
Conclusion. The conviction of count five of the
indictment, charging indecent assault and battery on a child by
"touching of the vagina without penetration," is vacated; the
verdict on that charge is set aside; and that count of the
indictment is dismissed. The remaining judgments, and the order
denying the motion for a new trial, are affirmed.
So ordered.
By the Court (Rubin,
Englander & Brennan, JJ.8),
Clerk
Entered: August 7, 2023.
8 The panelists are listed in order of seniority.
13