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

23-P-857

COMMONWEALTH

vs.

DEREK MOORE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the 

defendant, Derek Moore, appeals from his convictions on three 

counts of indecent assault and battery on a child. We affirm.

Background. In a relationship with the victim's mother, 

the defendant lived at times with the mother and the victim who

considered the defendant "a father-figure" and "step-father," 

and called him "dad." When the victim was between the ages of 

eleven and twelve, the defendant, on three separate occasions,

touched her breasts, buttocks, and vaginal area. The victim 

testified that she reported these events to her foster mother 

who testified as the first complaint witness. No other 

witnesses testified.
2

Discussion. 1. Reports to mother and grandmother. Under 

the first complaint doctrine, evidence of the victim's report of 

abuse is limited to "the first person told of the sexual 

assault." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). 

"The first complaint doctrine does not, however, 'prohibit the 

admissibility of evidence that, while barred by that doctrine, 

is otherwise independently admissible.'" Id., quoting 

Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). The 

victim testified, without elaboration, that she also "informed" 

her mother and told her grandmother "what happened." For the 

first time, the defendant now contends that this testimony

violated the first complaint doctrine and was highly prejudicial 

and lacked any probative value. We disagree and discern no 

error and no "substantial risk of a miscarriage of justice." 

Commonwealth v. McCoy, 456 Mass. 838, 846 (2010).

Under the first complaint doctrine, the victim's testimony 

that she reported the abuse to her mother and grandmother was 

inadmissible, but such evidence was otherwise admissible "to 

rebut the defendant's suggestion that [the victim] had 

fabricated her accusations against him." Aviles, 461 Mass. at 

67. Here, anticipating the victim's testimony, defense counsel 

challenged her credibility and motivation through his opening 

statement in which he suggested that the complaint to the foster 

mother sprang from a complex "family dynamic" in which the 
3

victim sought to escape an unpleasant homelife with her mother 

and the defendant. Defense counsel theorized that the victim 

contrived the allegations of abuse and made the report to the 

foster mother "to make sure she doesn't have to be in [the 

defendant's] custody any longer." The prosecutor could properly 

rebut this assertion by showing that the report was not a

contrivance aimed at enlisting the help of the foster mother to 

escape the family dynamic because the victim also later revealed 

the abuse to her mother and grandmother. See Aviles, 461 Mass. 

at 67. With respect to the report made to the mother, we also 

note that defense counsel logically did not object because the 

victim also testified that her mother did not believe her and 

remained in a relationship with the defendant.

2. Discussions with others. We also discern no error and 

no substantial risk of a miscarriage of justice from the foster 

mother's testimony that she told the victim she was a "mandated 

reporter" and would be required to report allegations of abuse 

to the Department of Children and Families (DCF). Contrary to 

the defense claim on appeal, this testimony was not gratuitous 

but constituted part of the first complaint conversation between 

the victim and the foster mother. See Commonwealth v. King, 445 

Mass. 217, 243 (2005) (first complaint witness "may testify to 

the details of the alleged victim's first complaint of sexual 
4

assault and the circumstances surrounding that first 

complaint").

We agree with the defendant that the foster mother should 

not have testified that she reported the matter to DCF. See 

Commonwealth v. Kebreau, 454 Mass. 287, 298 (2009) (error to 

admit testimony that first complaint witness contacted 

Department of Social Services); Commonwealth v. Stuckich, 450 

Mass. 449, 451, 456 (2008) (same). Such testimony "has no 

relevance to whether the defendant in fact committed the acts 

charged." Stuckich, supra at 457. We discern, however, no 

substantial risk of a miscarriage of justice. See Commonwealth

v. Kebreau, 454 Mass. at 298. The foster mother's brief 

reference to the report "could have had slight, if any, effect 

on the outcome" here because it was clear she was simply 

following her obligation as a mandated reporter and not 

suggesting that she believed the victim. Id. Unlike the 

situation presented in Stuckich, supra at 456, where the first 

complaint witness testified that she filed a report and also 

"testified that she believed [the victim's] allegations," the 

foster mother here "did not create a strong impression" that she 

believed the allegations. Kebreau, supra.

The defendant also contends for the first time that the 

victim's testimony "made plain that government officials 

credited" the allegations because she testified that she met 
5

with "a lot of people" and discussed "if I wanted to press 

charges." Even if it unnecessarily implied "how the complaint 

of abuse evolved into the case before them," this testimony did 

not indicate that government officials credited the allegations. 

Stuckich, 450 Mass. at 457. The absence of any objection 

underscores that this testimony could have been understood to 

mean that the victim's ultimate objective was simply to avoid 

returning home with her mother and the defendant rather than to 

seek criminal charges. As defense counsel put it in his closing 

argument, the allegations were concocted so that the victim "did 

not have to go back with [the defendant] and did not have to go 

back with her mother." Thus, such testimony by the victim, even 

if improperly admitted, did not create a substantial risk of a 

miscarriage of justice.

3. Background of first complaint witness. We disagree 

with the defendant's contention, raised for the first time on 

appeal, that the first complaint witness created a "veneer of 

expert validation" by testifying that she was a member of the 

Boston City Council, had a background as a mental health

professional, and had rigorous training to become a specialized 

foster parent. Testimony of a first complaint witness may 

include "relevant conditions that might help a jury assess the 

veracity of the complainant's allegations or assess the specific 

defense theories as to why the complainant is making a false 
6

allegation." King, 445 Mass. at 246. These conditions "may be 

critical" to jurors evaluating "the validity of the complaint 

and may be helpful in assisting them in understanding the timing 

of and motivations underlying the complaint." Id. See, e.g.,

Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 595 (2006) 

(under former fresh complaint doctrine no error where testimony 

"included background information about the social worker's 

duties and how she became involved in the case"). Especially 

where the victim in this case was described as "very autistic," 

the witness' background information and communication skills

constituted part of the "complete picture" that would enable 

jurors to make a fair and accurate assessment of the victim's 

accusation. King, 445 Mass. at 247. Neither the testimony of 

the first complaint witness nor the argument of the prosecutor 

suggested that the first complaint witness had any expertise in 

determining whether the victim had been abused. We discern no 

error and no substantial risk of a miscarriage of justice from 

the first complaint witness' testimony about her background.

4. Limiting instruction. When first complaint testimony 

is presented, limiting "instructions should be given to the jury 

contemporaneously with the first complaint testimony, and again 

during the final instructions." King, 445 Mass. at 248. Here, 

just before the first complaint witness testified, the judge 

provided the limiting instruction set forth in the King case. 
7

The judge repeated the limiting instruction in his final charge 

to the jury. On appeal, the defendant claims for the first time 

that the limiting instruction should also have been provided 

during the testimony of the victim. Given the fulsome and 

repeated limiting instructions provided by the judge, we discern 

no substantial risk of a miscarriage of justice from the absence 

of a third recitation of the limiting instruction.

5. Prosecutor's closing argument. For the first time, the 

defendant takes issue with two remarks by the prosecutor in her 

closing argument. We discern no error and no substantial risk 

of a miscarriage of justice.

The defendant contends that the prosecutor referred to 

facts not in evidence and "implied expertise" by stating 

children often delay disclosure of sexual assaults. Read in 

context, the prosecutor stated, "You have the testimony of the 

first complaint witness. And that is why she was able to 

testify today under circumstance[s] like this. Because a child 

often will disclose something later on in their life." This 

argument is consistent with the judge's limiting instruction on 

first complaint evidence: "The length of time between the 

alleged crime and the report [of] the complainant to this 

witness is one factor you may consider in evaluating the 

complainant's testimony. But you may also consider that sexual 

assault complainants may delay reporting the crime for a variety 
8

of reasons" (emphasis added). Given the context of the remark 

and the judge's similar language in the limiting instruction, 

there was no reference to expert opinion that was not in 

evidence.

Next, the defendant contends that the prosecutor improperly 

argued without evidentiary support that the defendant sought out 

the victim as a sexual alternative to the victim's mother. The 

prosecutor asked jurors to remember the state of the 

relationship between the defendant and the victim's mother. 

That relationship consisted of "always fighting," "always 

arguing," "always yelling," and the relationship was "on and 

off." The prosecutor then said, "Now don't forget that. What 

their relationship is like and how it left [the victim] by 

herself. There's plenty of time, opportunity for them to be 

alone with each other. Now if [the victim's mother] was not 

giving [the defendant] what – what he wanted, [the victim] was 

there." We discern no error because this argument was based 

upon evidence before the jury, and the prosecutor could properly 

argue inferences pertaining to a motive and opportunity to 

commit the crimes. "[P]rosecutors are entitled to marshal the 

evidence and suggest inferences that the jury may draw from it." 

Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Inferences 

need not be "inescapable" and "need only be reasonable and 

possible." Commonwealth v. Roy, 464 Mass. 818, 824, 829 (2013).
9

Even if the remarks could be construed as referring to 

facts not in evidence, the judge provided instructions that 

would obviate any substantial risk of a miscarriage of justice. 

See Commonwealth v. Pearce, 427 Mass. 642, 646 (1998). At the 

beginning of the trial, the judge told jurors that "closing 

arguments of the attorneys, like their opening statements, are 

not evidence." In his final charge, the judge informed jurors 

to confine their deliberations to the evidence, including 

testimony of the witnesses and exhibits. He also repeated his 

earlier instruction, "The opening statement and closing 

arguments of the attorneys are not a substitute for the 

evidence." Given the context of the arguments and the judge's 

careful instructions, we are satisfied that the prosecutor's 

remarks did not create a substantial risk of a miscarriage of 

justice.

6. Response to jury question. As a final claim of error, 

the defendant, though satisfied at trial, now contends that the 

judge provided an improper response to jury questions during 

deliberations. Jurors asked who the victim has been living with 

and where since leaving the foster mother's care, whether there 

was a possibility that the victim would return to the 

defendant's custody, and whether the victim was aware of a 

possibility of returning to the defendant's custody. After 

conferring with counsel and obtaining the agreement of counsel, 
10

the judge responded, "All the evidence in this case has been put 

before you. You have everything you need to make a decision. 

Thank you very much." On appeal, the defendant claims that 

these questions indicated jurors were considering extraneous 

matters, the judge should have forcefully instructed them not to 

do so, and the judge should have told them that custody 

decisions would be adjudicated by the Probate and Family Court, 

with input from DCF, and any decision would be made in the 

child's best interest. We discern no error and no substantial 

risk of a miscarriage of justice. See Commonwealth v. Ridley, 

491 Mass. 321, 333 (2023). A judge has broad discretion to 

formulate a response to a jury question. Id. The supplemental 

instruction here was well within that range of discretion and 

reminded jurors of their obligation to consider only evidence 

that had been presented.

After careful review of the record and the arguments

presented, we discern no error or combination of errors that
11

creates a substantial risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Ditkoff, 

Singh & Hodgens, JJ.1),

Clerk

Entered: September 26, 2024.

1 The panelists are listed in order of seniority.