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

21-P-482

COMMONWEALTH

vs.

CHARLES DAVIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, after a jury 

trial, of assault and battery on a household member, G. L. 

c. 265, § 13M, and kidnapping, G. L. c. 265, § 26. He raises 

one argument on appeal, namely that the prosecutor misstated the 

evidence in closing argument, resulting in a substantial risk of 

a miscarriage of justice. We affirm.

The charges arose from two incidents involving the same 

victim, with whom the defendant had been in a dating 

relationship. The first incident occurred on October 1, 2014, 

and resulted in the charges for which the defendant was 

convicted. The second incident occurred on July 13, 2015, and 

resulted in charges of assault and battery by means of a 

dangerous weapon, G. L. c. 265, § 15A (b), kidnapping, G. L. 

c. 265, § 26, assault and battery on a family or household 
2

member, G. L. c. 265, § 13M (a), threat to commit a crime, G. L. 

c. 275, § 2, and witness intimidation, G. L. c. 268, § 13B. The 

defendant was acquitted of all charges relating to the second 

incident.

Based on the victim's testimony, the evidence permitted the 

jury to find the following. The defendant and the victim met in 

2013 and started to date the following year. The victim decided 

to end the relationship after the defendant became controlling 

and possessive in September 2014. On October 1, 2014, the 

defendant was supposed to pick the victim up from work to take 

her home. The pickup did not take place as arranged, and the 

victim ended up walking home. Right before she arrived home, 

the victim received a phone call from the defendant, who accused 

her of having sex with someone else. When the victim arrived in 

the parking lot of the apartment complex where she lived, the 

defendant drove into the lot, ran up to her, pulled her 

backwards by her jacket, dragged her by her hair along the 

ground, and picked her up and threw her into the car headfirst, 

where she hit her head against the dashboard. The victim 

screamed during these events. The defendant then drove away 

with the victim in the car, repeatedly accusing her of cheating 

on him, eventually stopped the car and digitally raped her, and 

then drove her back to her apartment. When the police arrived, 

the defendant told the victim that he was going to tell the 
3

police that he had been helping her because she had a diabetic 

cramp.

Two other residents of the apartment complex testified to 

their own observations of the events. The first, Natasha 

Gaudette, testified that around 9 P.M. on October 1, 2014, she 

heard someone calling "help" multiple times and letting out a 

"blood-curdling scream." Gaudette looked out the window of her 

apartment, which overlooked the parking lot, and saw somebody 

shoving a very small woman or child, who was screaming, into the 

back passenger seat of a boxy shaped car. Gaudette described 

that the perpetrator scooped up the very small person, folded 

the person in half, and shoved the person into the car. The 

perpetrator then slammed the door shut, jumped into the car, and 

"skidded out of the parking lot, like, on two wheels. There was 

a squeal."

The second neighbor, Joanna Finiello, testified that she 

heard a woman screaming "help me" and "stop" in the parking lot. 

She saw a male figure with the passenger's side door of a car 

open "pummeling a woman that was screaming, fist, fist, fist." 

The woman was screaming for her life. The man slammed the car 

door shut and drove away. Finiello called 911 when the car 

returned to the parking lot about ten minutes later and reported 

that the perpetrator had returned to the complex.
4

The defendant argues that, in closing argument, the 

prosecutor mischaracterized the testimony of Gaudette by stating 

that Gaudette had identified the defendant as the perpetrator of 

the assault and kidnapping in the parking lot. The defendant 

points specifically to the following passage of the prosecutor's 

closing:

"So, to judge [the victim's] credibility what do you have 

that corroborates her credibility? Well, I suggest you 

have Natasha Gaudette, and Joanne Finiello. . . . What did 

they tell you? From two people that knew nobody in this 

case, bloodcurdling screams for help, screaming for their 

life, someone being hit, and then being picked up and 

thrown in a car, Natasha Gaudette actually describing how 

the defendant picked [the victim] up, exactly the way [the 

victim] told you that he picked her up, and describing the 

car parked . . . ." (Emphasis added.)

It is certainly true that Gaudette did not identify the 

defendant (who was unknown to her) as the person who picked the 

victim up and threw her in the car. But the prosecutor did not 

suggest she had. Instead, the prosecutor's statement focused on 

Gaudette's description of how the victim was picked up and 

thrown into the car rather than on the identity of the person 

who performed those acts. We are buttressed in our view that 

the jury would have understood the prosecutor's statement as one 

describing acts rather than identity by the fact that identity 

was not seriously at issue in this case; indeed, defense counsel 

acknowledged that the defendant and victim had an intimate 

relationship, and that the defendant was at the victim's 
5

apartment when the police arrived and that he told them that the 

victim had suffered a diabetic attack. This was not a case 

about identification, but rather about whether the events 

described by the victim occurred at all. See, e.g., 

Commonwealth v. Cheng Sun, 490 Mass. 196, 217 (2022), quoting 

Commonwealth v. Wilkerson, 486 Mass. 159, 180 (2020) ("We

examine [all] the challenged statements 'in the context of the 

entire closing, the jury instructions, and the evidence 

introduced at trial'").

Even were we to assume that the prosecutor stretched the 

point, we see no substantial risk of a miscarriage of justice

stemming from it. See Commonwealth v. Pearce, 427 Mass. 642, 

646 (1998) (unobjected-to misstatement of fact in closing 

argument to be reviewed for substantial risk of miscarriage of 

justice). The judge instructed the jury that statements in 

closing argument were not evidence, and that it was up to the 

jury to decide whether and to what degree to credit the 

testimony of the witnesses. As we have already noted, the 

defendant did not object, and the alleged misstatement went to a 

tangential matter that was not a contested issue in the case. 

See Commonwealth v. Kozec, 399 Mass. 514, 517-518 (1987) 

(listing various factors that may be considered in assessing 

whether substantial risk of a miscarriage of justice created by 

argument). Finally, the jury were clearly not swept away by the 
6

prosecutor's statement because they acquitted the defendant of 

most of the charges against him.

Judgments affirmed.

By the Court (Wolohojian, 

Milkey & D'Angelo, JJ.1),

Assistant Clerk

Entered: January 23, 2024.

1 The panelists are listed in order of seniority.