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15-P-1183 Appeals Court

COMMONWEALTH vs. AUGUSTO LOPEZ.

No. 15-P-1183.

Middlesex. March 6, 2017. - May 24, 2017.

Present: Carhart, Massing, & Lemire, JJ.1

Rape. Child Abuse. Enticement of Minor. Evidence, First 

complaint, Relevancy and materiality, Credibility of 

witness. Witness, Credibility.

Indictments found and returned in the Superior Court 

Department on May 17, 2012.

The cases were tried before Kenneth W. Salinger, J. 

Jane Larmon White, Committee for Public Counsel Services,

for the defendant.

Jessica Langsam, Assistant District Attorney, for the 

Commonwealth.

MASSING, J. The defendant was convicted of two counts of 

rape and abuse of a child under sixteen years of age, aggravated 

by an age difference of ten years or more, see G. L. c. 265, 

 

1 Justice Carhart participated in the deliberation on this 

case prior to his retirement.
2

§ 23A(b), two counts of rape of a child by force, G. L. c. 265, 

§ 22A, and one count of enticement of a child, G. L. c. 265, 

§ 26C. The charges arose from a single incident involving a 

twelve year old girl. The only evidence of the crime was the 

testimony of the child, who was fifteen years old at the time of 

trial. At issue is the judge's decision to admit the testimony 

of the child's "therapeutic mentor" that the child lacked the 

ability to engage in "imagination play." We conclude that the 

testimony was improperly admitted to prove that the child was 

incapable of telling lies and that its use for this purpose was 

prejudicial, warranting a new trial.

Background. a. The crime. When the child was twelve 

years old she lived next door to the defendant, whom she called 

"Pachoo." The defendant lived with Chrissy, who was a friend of 

the child's mother, and Chrissy's three children, two of whom 

were younger than the child. The defendant was Chrissy's boy

friend and was fifty-five years old at the time.

According to the child, one night she went next door to 

babysit for Chrissy's two younger children while Chrissy went

out to play bingo. The child had just finished using the 

upstairs bathroom when the defendant called her into Chrissy's 

bedroom. The defendant pushed her onto the bed, took off her 

pants and underwear, got on top of her, and "sticked his dick in 

[her] vagina." At some point he stopped, and the child put her
3

underwear and pants back on. Then the defendant put his hand 

underneath her clothes and put his finger inside her vagina. 

After this, the two of them went downstairs to the parlor, 

sat on the couch, and watched television. The child testified 

that the defendant grabbed her hand and "tried to make [her] 

touch his dick," but she did not actually touch him. The child 

did not remember where Chrissy's children were during these 

events. When Chrissy returned, the child went back home without 

saying anything to anyone.

b. The child's traumatic history. Much evidence was 

introduced, some preemptively by the Commonwealth and some on 

cross-examination, that the child suffered from a number of

difficulties. She had special education needs, was "classified 

as being mildly mentally retarded," and had bipolar disorder. 

She had a leg injury: when asked about her leg, she explained 

that her "patella went out of place" when she "got out of the 

shower and [her] leg gave out and [she] fell six times."

In addition, the child had been raped by an older male 

cousin when she was seven or nine years old. She was at her 

aunt's house when her cousin, who was in the bathroom, said 

"come here" and "showed [her] his thing." They went into a 

bedroom and were watching television when the cousin "pulled 

[her] pants down and he sticked his dick in [her] vagina." 
4

The incident with the cousin traumatized the child. She 

started having flashbacks, in which upsetting thoughts of her 

cousin came to her involuntarily. She would "see him on the 

wall." In these flashbacks it would feel like her cousin was 

touching and hurting her again, and it scared her. She started 

seeing counsellors and therapists to help her deal with the 

effects of this traumatic event. 

Defense counsel also elicited testimony on crossexamination that the child had witnessed an older female cousin 

and the cousin's boy friend having sex. Around this time, and 

before the incident with the defendant, the child shaved off all 

of her pubic hair, even though she was not yet shaving her legs 

or armpits. After the incident with the defendant, in her 

flashbacks she would see the defendant's face on the wall 

instead of her cousin's.

c. The therapist's testimony. Less than two weeks before 

trial the Commonwealth moved in limine to present the child's 

therapeutic mentor, Jill Larson, as the first complaint witness, 

instead of the child's father. See Commonwealth v. King, 445 

Mass. 217, 241-248 (2005), cert. denied, 546 U.S. 1433 (2006).

After a hearing held on the eve of trial, the judge allowed the 

motion.
5

At trial, while explaining the nature of her relationship 

with the child,2 Larson testified, over objection, that she was 

"aware of [the child's] difficulties in processing information,"

and that the child looks at the world "in a very black-and-white

. . . manner." The judge allowed the prosecutor to pursue this 

line of questioning to establish an "appropriate contextual 

background," although he indicated that "at some point, it will 

be enough."

After additional questioning in this vein, Larson began to 

testify that the child had difficulty "engaging in play."

Defense counsel objected again and, at sidebar, informed the

judge that the Commonwealth had disclosed, just the day before, 

that Larson would testify that the child "was unable to engage 

in pretend princess play and that she lacked the higher order of 

thinking." Defense counsel argued that testimony regarding the 

child's thought processes required expert testimony and that 

"her inability to play princess play" was not relevant. The 

judge ruled that "some limited questioning regarding facts in 

this area" would be relevant, but cautioned the Commonwealth not 

 

2 After graduating from college, Larson attended a four-year 

clinical program for social work and obtained a master's degree. 

At the time of trial she was working as a foster care social 

worker and child protective worker in Maryland. She saw the 

child weekly from September, 2011, through April, 2012, as a 

therapeutic mentor, and was "involved in all her care plans,"

knew all her diagnoses, was "aware of all her therapeutic 

issues, and . . . her cognitive delays."
6

to elicit opinion testimony about the child's "tendency to tell 

the truth or fantasize or anything like that."

Larson then explained that the child "struggled with 

imagination play, which really is a core piece of therapeutic 

mentoring." She described an outing to "Plaster Fun Time,"

where the child was given "a scenario of being princesses" and 

"had to pretend that we were painting a castle and we had to 

slay the dragon. And [the child] really got frustrated because 

she wasn't able to really higher-order think . . . ." At this 

point, the judge sustained defense counsel's objection and 

forcefully instructed the jury to "disregard the last part of 

the answer about inability to engage in a higher-order 

thinking."

Redirected to describe the incident at Plaster Fun Time, 

Larson resumed her testimony, stating that the child "became 

upset when she wasn't able to participate like the other 

children who were being able to pretend that they were 

princesses and being able to come up with characters and name 

their dragons and she wasn't able to make a story line." Larson 

then testified about a regularly scheduled therapeutic mentoring 

session with the child, during which the child disclosed being 

sexually assaulted by the defendant.3

 

3 Over the defendant's objection, Larson also testified that 

she was a mandated reporter because she was "in a position of 
7

d. Closing arguments. Defense counsel argued that the 

jury should discredit the child's testimony because "[h]er story 

about Pachoo is too close to her story about her cousin," her 

testimony was inconsistent, and there was no physical evidence. 

Rhetorically addressing the possible argument that "she's not 

sophisticated enough to do pretend play, so she's not 

sophisticated enough to get up on the stand and make a 

purposeful lie," counsel argued that the child did not 

intentionally give false testimony, but rather that she was 

"confused" about the facts, confused about her sexuality, and 

influenced by "her recurring and intrusive memories of [her 

cousin] in the weeks before accusing Pachoo."

The prosecutor countered that the details of the incident 

with the cousin differed from the child's description of what 

the defendant did to her. She argued that the child "doesn't 

have the wherewithal and the sophistication to add the details,"

and that "[t]he details about what Pachoo did to her come from 

the reality of her experiencing it." With respect to the 

therapeutic mentor's testimony, the prosecutor said, "Think 

about what Jill Larson told you about how [the child] didn't 

even have the ability to come up with a storyline about 

 

working with children or adults," and, as such, she was required 

"to report abuse, neglect or anything that is reported to us by 

anybody that we are working with objectively."
8

princesses, how she struggled with that, how frustrated she got. 

She's not intelligent enough, she's not sophisticated enough to 

perpetuate a cold, calculating fabrication."

Discussion. Evidence that the child was unable to engage 

in imaginative play, or that she got upset because she was 

unable to pretend to be a princess or slay a dragon at Plaster 

Fun Time, should not have been admitted. "To be admissible, 

evidence must meet 'the threshold test of relevancy,' that is, 

it must have a 'rational tendency to prove an issue in the 

case.'" Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107 

(2000), quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 

83 (1989). See Mass. G. Evid. § 401 (2017). Larson's testimony 

obviously was not probative of anything that occurred between 

the child and the defendant. Nor did it tend to prove the 

content or circumstances of the child's disclosure of her "first 

complaint" to her therapist. While some background facts may 

have been admissible to put the child's relationship with Larson 

into context, cf. Commonwealth v. Rosario, 430 Mass. 505, 508 

(1999), the challenged testimony went beyond the background of 

their therapeutic relationship and into an attenuated collateral 

matter.

We recognize that "[t]he relevance threshold for the 

admission of evidence is low," Commonwealth v. Arroyo, 442 Mass. 

135, 144 (2004), that a judge has wide discretion in determining 
9

what evidence is relevant, see Commonwealth v. Alphas, 430 Mass. 

8, 16-17 (1999), and that evidence can be relevant without 

directly establishing a fact of the case. See Mass. G. Evid. 

§ 401, at 37 ("To be admissible, it is not necessary that the 

evidence be conclusive of the issue. . . . It is sufficient if 

the evidence constitutes a link in the chain of proof"). And 

evidence regarding the child's ability to engage in imaginative 

play did have potential probative value on one issue in the 

case: whether her account of the rape by the defendant was 

true, or whether she made it up.

However, it is well established that "[n]o witness, neither 

a lay witness nor an expert, may offer an opinion regarding the 

credibility of another witness." Commonwealth v. Quinn, 469 

Mass. 641, 646 (2014). See Commonwealth v. Montanino, 409 Mass. 

500, 504 (1991) ("longstanding rule that witnesses may not offer 

their opinions regarding the credibility of another witness"). 

"It is the province of the fact finder, not the witness, to 

determine the weight and credibility of testimony." 

Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401-402 (1983). 

Vouching for the credibility of a witness, whether explicitly or 

implicitly, is impermissible. Quinn, supra at 646-647.

Notwithstanding this limitation, the Commonwealth contends 

that Larson's testimony was relevant "in light of the defense, 

which was to attack the victim's credibility and suggest that 
10

she may have conflated the two incidents of rape." While the 

Commonwealth's argument does have some superficial appeal, it 

does not survive scrutiny.

The defendant permissibly pursued a variant of a Ruffen

defense. See Commonwealth v. Ruffen, 399 Mass. 811, 815 (1987) 

("If the victim had been sexually abused in the past in a manner 

similar to the abuse in the instant case, such evidence would be 

admissible at trial because it is relevant on the issue of the 

victim's knowledge about sexual matters"). His defense was that 

the child used the details of the rape by her cousin to accuse 

the defendant, not intentionally or maliciously, but rather as a 

product of trauma and confusion. The defendant did not suggest 

that the child engaged in an imaginative exercise to come up 

with her accusations against him. Sadly, although the child had 

no experience being a princess, she did have experience being 

raped. Evidence demonstrating the child's inability to engage 

in imaginative play had no bearing on the defendant's claim that 

the child was confusing or conflating her real life experiences. 

Thus, the Plaster Fun Time incident was relevant only for 

an improper purpose: to suggest to the jury that the child was 

incapable of lying and therefore must have been telling the 

truth. A reasonable juror hearing the child's therapist testify 

that the victim saw things "in a very black-and-white . . .

manner," was not able to pretend like other children, and 
11

"wasn't able to make a story line," could think that the 

therapist was implicitly vouching for the child's credibility. 

See Quinn, supra at 647. "While the proposed testimony fell 

short of rendering an opinion on the credibility of the specific 

child before the court, we see little difference in the final

result. It would be unrealistic to allow this type of . . .

testimony and then expect the jurors to ignore it when 

evaluating the credibility of the complaining child." 

Commonwealth v. Ianello, 401 Mass. 197, 202 (1987). Viewed in 

this light, the admission of Larson's testimony was an abuse of 

discretion.

Having determined that the testimony was improperly 

admitted, we must consider whether it was prejudicial. Because 

the defendant timely and forcefully objected to the testimony, 

we apply the prejudicial error standard from Commonwealth v. 

Flebotte, 417 Mass. 348, 353 (1994). "An error is not 

prejudicial where it 'did not influence the jury, or had but 

very slight effect.'" Quinn, supra at 650, quoting from 

Commonwealth v. Christian, 430 Mass. 552, 563 (2000).

The child's credibility was the only issue in the case. 

The only witness other than the child and Larson was the child's 

father, who was not a percipient witness or even a corroborating 

witness. No physical evidence was presented. See Montanino, 

409 Mass. at 504-505 (improper use of opinion testimony to 
12

bolster victim's credibility reversible error where victim "was 

the key prosecution witness" and "his credibility was a crucial 

issue"); Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 666-

668 (2011) (improper vouching by pediatrician who interviewed 

victim held to be prejudicial where case rested on victim's 

credibility). Contrast Commonwealth v. Rather, 37 Mass. App. 

Ct. 140, 149-150 (1994) (impermissible endorsement of victims'

credibility harmless where "various aspects of the victims'

testimony were corroborated by other witnesses").

Although Larson was not permitted to testify as an expert, 

based on her qualifications and relationship with the child, she 

"acquired the veneer of an expert." Commonwealth v. LaCaprucia, 

41 Mass. App. Ct. 496, 500 (1996). The danger of implicit 

vouching is heightened "where, as here, the witness is 

testifying to actual interaction with the child." Ibid. See 

Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 451 (1996) 

(testimony "intermingling [witness's] role as treating 

therapist, expert on behavioral characteristics of sexually 

abused children, and fresh complaint witness, had the effect of 

impermissibly vouching for the [child's] credibility"); 

Velazquez, supra at 667.

4

 

4 We express no opinion about whether a properly qualified 

expert could testify about the perceptive or expressive 

abilities of a person with the child's disabilities. Cf.

Commonwealth v. Rather, 37 Mass. App. Ct. at147-148 (while 
13

In addition, in closing argument, the prosecutor focused on 

Larson's testimony for its improper purpose, arguing that the 

child "doesn't have the wherewithal and the sophistication to 

add the details," and that, as Larson had told the jury, the 

child "didn't even have the ability to come up with a storyline 

about princesses, how she struggled with that, how frustrated 

she got. She's not intelligent enough, she's not sophisticated 

enough to perpetuate a cold, calculating fabrication." Although 

the argument was properly based on the evidence admitted at 

trial, see Commonwealth v. Lamrini, 392 Mass. 427, 433 (1984) 

(although "there was no misconduct in the prosecutor's summation 

because he relied on a ruling by the judge, we conclude that the 

judge's ruling was error"), it served to focus the jury on 

Larson's testimony for the wrong reasons.

Given the nature of the improper testimony, the use that 

was made of it at trial, the strong possibility that the jury 

may have considered it as vouching for the child's credibility,

and the absence of any evidence other than the child's word, we 

cannot be confident that the jury's verdict was not 

substantially swayed by the error. See Quinn, 469 Mass. at 650 

(error prejudicial where "we cannot say [improper admission of 

 

expert testimony explaining delayed disclosure by sexually 

abused children is generally admissible, "the line between 

proper testimony as to patterns of disclosure of child sexual 

abuse victims and improper testimony constituting endorsement of 

the credibility of a victim-witness is indeed a narrow one").
14

expert's implicit vouching] did not influence the jury's 

evaluation of the victim's credibility"). Accordingly, the 

judgments are reversed, and the verdicts are set aside.

So ordered.