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13-P-1077 Appeals Court

COMMONWEALTH vs. MARCOS CENTENO.

No. 13-P-1077.

Essex. November 10, 2014. - June 25, 2015.

Present: Rubin, Brown, & Maldonado, JJ.

Rape. Indecent Assault and Battery. Assault and Battery.

Child Abuse. Evidence, Subsequent misconduct, Expert 

opinion. Witness, Expert. Jury and Jurors. Practice, 

Criminal, Jury and jurors, Conduct of juror, Voir dire.

Indictments found and returned in the Superior Court 

Department on July 23, 2010. 

The cases were tried before Timothy Q. Feeley, J. 

William B. Van Lonkhuyzen for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the 

Commonwealth.

BROWN, J. The defendant was convicted by a jury on four 

indictments charging rape of a child, two indictments charging 

indecent assault and battery on a child under the age of 

fourteen, and one indictment charging assault and battery.1

 

1 The four indictments charging rape of a child allege that 

the rapes occurred "on diverse dates from and between April 1, 
2

The defendant now appeals, claiming that (1) the judge abused 

his discretion when he allowed the admission of the defendant's 

subsequent misconduct (subsequent bad acts) in evidence; (2) the 

judge erred in denying a motion for a required finding of not 

guilty on the indictment charging penile-vaginal rape, (3) the 

judge abused his discretion in allowing in evidence certain 

expert testimony that absence of physical injury is not 

inconsistent with anal rape; and (4) the judge did not abuse his 

discretion in declining to conduct a voir dire of a sitting 

juror who was visibly upset. We affirm. 

Facts. We briefly summarize the facts taken from the 

evidence presented at trial and reserve for later discussion 

such additional facts as are relevant to each issue raised on 

appeal. 

In 2004, when the victim was eight years old and entering 

third grade, the defendant moved into the home she shared with 

her mother and two younger brothers.

2 The defendant began to 

sexually assault the victim almost immediately. The incidents 

 

2004 and February 11, 2008" and consisted of oral rape, digital 

rape, vaginal-penile rape, and anal rape. The two indictments 

charging indecent assault and battery charged "hand on breast" 

and "hand on genital area" within the same time period as the 

rape indictments. The assault and battery indictment alleged 

that the assault and battery occurred on May 17, 2010.

2 The victim was born on November 15, 1995, and was sixteen 

and one-half years old when she testified at trial.
3

continued unabated and escalated until the defendant left the 

home in February, 2008.

3 The victim's mother witnessed part of a 

single incident.

Although the defendant left the home in February, 2008, the 

victim's mother took the victim and her other children to visit 

him. In this same period, the victim revealed to her aunt that 

"[the defendant] used to touch" her.

4 The victim told her aunt

not to tell anyone because she "felt embarrassed" and because 

she thought her mother really liked the defendant and she did 

not want to make her unhappy. In addition, she did not think 

her mother would believe her. 

The final incident occurred on May 17, 2010, after the 

defendant had returned to the household from his two-year 

hiatus. In the course of an argument with the victim in a car, 

the defendant punched the victim repeatedly on the head and 

neck, leaving a mark on her neck. Later, at the house, the 

victim said, "[A]fter everything that he's done to me all those 

years, he's going to hit me and beat me like that like he did 

that day." In response to the remarks the mother asked the 

 

3 The defendant was incarcerated at this time, but the judge 

excluded the introduction of any evidence of the defendant's 

two-year incarceration.

 

4 Her aunt was only two and one-half or three years older 

than the victim. The aunt's reaction, however, did not signal a 

supportive ear and resulted in the victim feeling "even more 

embarrassed and kind of closed up." 
4

victim what she was talking about. The mother told the 

defendant to leave the house, and upon his departure, the victim 

told her mother "everything." 

Shortly after this incident, a cousin of the victim's 

mother allowed the mother to listen to her telephone 

conversation with the defendant, unbeknownst to the defendant. 

The victim's mother testified that she heard her cousin say to 

the defendant, "You must have done something really bad, because 

you guys fight all the time, and she's never put you out 

before." After initially claiming ignorance, the defendant told 

the mother's cousin that the victim "must have said something to 

[her mother] about [me] touching her. She must have made 

something up about [me] touching her." 

The defense presented its case through cross-examination of 

the Commonwealth's witnesses, and through the testimony of the 

defendant's mother and the victim's aunt. The defense urged the 

jury to conclude that the victim was not credible because (1) 

there was no physical evidence to support her claims, (2) it was 

impossible to perpetrate the abuse she described in such close 

proximity to other people without it having been detected, and 

(3) she did not get along with the defendant and fabricated the 

allegations to get him out of the house. 

Discussion. 1. Uncharged subsequent misconduct. After 

the defendant's pretrial motion to exclude uncharged subsequent 
5

misconduct (subsequent bad acts) was denied and the 

Commonwealth's motion to allow the introduction of such evidence 

was allowed in part,5 the Commonwealth elicited testimony from 

the victim, over objection, that after the defendant moved back 

into the home in February, 2010, he again tried to touch or grab 

her in the chest, "butt," or "private area" whenever she walked 

by him. The defendant argues this was evidence improperly 

admitted.

6 See Commonwealth v. Loach, 46 Mass. App. Ct. 313, 317 

(1999). 

While such evidence may not be used to show the defendant's 

criminal propensity or bad character, "[i]n sexual assault 

cases, evidence of similar illicit sexual contacts involving the 

same parties may be used to show a pattern of conduct, intent, 

and the relationship between a defendant and a complainant. 

Evidence of such other sexual contacts between the parties may 

render it not improbable that the sexual act charged may have 

 

5 The judge specifically did not allow the introduction of 

any incidents during the victim's visits to the defendant while 

he was incarcerated or at a particular birthday party.

6 We disagree with the defendant's contention that the case 

turned solely on the victim's credibility. Here, the victim's

mother observed the defendant engaging in behavior that was 

consistent with the victim's description of at least some of the 

sexual assaults, and some of the defendant's statements could 

fairly be viewed as consciousness of guilt. Contrast 

Commonwealth v. Quinn, 469 Mass. 641, 650 (2014) ("implicit 

vouching" of expert witness constituted prejudicial error, 

particularly because case "rested almost entirely on the 

credibility of the emotionally troubled victim").
6

occurred." Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 679 

(2001), S.C., 437 Mass. 620 (2002). See Commonwealth v. Frank, 

51 Mass. App. Ct. 19, 23-24 (2001). Even evidence of similar 

crimes, "though committed in another place, if not too remote in 

time, is competent to prove an inclination to commit the [acts] 

charged in the indictment . . . and is relevant to show the 

probable existence of the same passion or emotion at the time in 

issue." Commonwealth v. Barrett, 418 Mass. 788, 794 (1994), 

quoting from Commonwealth v. King, 387 Mass. 464, 470 (1982). 

Here, the complained-of subsequent misconduct began as soon 

as the defendant returned to the household. The conduct was 

remarkably similar to the earlier pattern of the charged sexual 

assaults and involved the same victim. The evidence of the 

subsequent bad acts was relevant to show a pattern of conduct 

and the existence of the defendant's sexual interest in the 

victim. Moreover, the judge immediately instructed the jury on 

the limited use of the evidence to show motive, intent, or a 

pattern of conduct and prohibited the jury from considering it 

to establish guilt, propensity, or bad character. 

Nor is the subsequent misconduct so temporally remote from 

the charged conduct to preclude its admission where the 

defendant spent most of the interim period in prison. 

Commonwealth v. Kater, 432 Mass. 404, 416 (2000). See Walters

v. Maass, 45 F.3d 1355, 1357-1358 (9th Cir. 1995) (earlier bad 
7

acts not too remote in time because defendant spent nearly all 

of intervening period in prison). See and compare Commonwealth

v. Sharpe, 454 Mass. 135, 144 (2009). There was no error in the 

admission of this evidence.

2. Sufficiency of the evidence. The defendant argues that 

the evidence was insufficient to prove penile-vaginal rape 

because there was insufficient evidence of penetration. We 

disagree. The element of penetration can be established by 

evidence that the defendant's penis touched or came into contact 

with the victim's vagina, vulva, or labia. See Commonwealth v.

Gichel, 48 Mass. App. Ct. 206, 213 (1999).

 Here, Jill Cote, a pediatric nurse practitioner, provided a 

diagram of the female genitalia -- an oval-like shape with an 

opening in the middle where the vagina was labeled -- as it 

looks without any sort of manipulation that would reveal more 

interior anatomy.

7 Cote identified and labeled the labia majora 

on the diagram. After the victim testified to repeated

instances of the defendant lying on top of her and moving his 

penis up and down on her vagina, "touching her vagina," she was 

asked to identify the area on the diagram where the defendant's 

penis touched her. Referring to the diagram, she responded, 

"[T]he whole picture." The victim's testimony together with the 

 

7 The diagram was admitted in evidence and has been made 

part of the record on appeal.
8

diagram establish that the defendant's penis touched the 

victim's labia and vagina. The evidence, accordingly, was 

sufficient to establish the element of penetration. The judge 

instructed the jury, without objection, as follows: "In 

addition to the vagina, the female genital opening includes the 

anterior parts known as the vulva and labia. Penetration into 

the vagina itself is not required." See Massachusetts Superior 

Court Criminal Practice Jury Instructions § 3.4, at 3-39 (Mass. 

Continuing Legal Educ. 2d ed. 2013). See also Commonwealth v.

Donlan, 436 Mass. 329, 336 (2002) ("element of penetration 

required for a rape conviction is established by evidence that 

[the defendant] touched or came into contact with the victim's 

vagina, vulva, or labia").8

 

8 The defendant cites Commonwealth v. Russell, 470 Mass. 

464, 480-493 (2015), to support his argument that there was 

insufficient evidence to convict the defendant of penile-vaginal 

rape of a child. The issue before the court in Russell was a 

different one. There the defendant was acquitted of eighteen 

counts of statutory rape, but convicted of seven counts of the 

lesser included offense of indecent assault and battery on a 

child under the age of fourteen. On appeal, the defendant 

argued that the jury should not have been instructed on the 

lesser included offense. The Supreme Judicial Court stated that 

while there was sufficient evidence to support a conviction of 

rape, there was also "a rational basis for acquitting the 

defendant of the crime charged and convicting him of the lesser 

included offense." Id. at 480, quoting from Commonwealth v. 

Porro, 458 Mass. 526, 536 (2010). Consequently, the court 

concluded, the judge did not err in giving the instruction on 

the lesser included offense. Here, neither the defendant nor 

the Commonwealth proposed an instruction on the lesser included 

offense, and the defendant has not argued that the judge should 

have given such an instruction sua sponte. There was sufficient 
9

3. Expert testimony. The defendant argues that because 

the hypothetical question concerning the effects of anal-penile 

penetration on a young girl that was posed to Cote assumed 

specific facts to which the victim had testified, the question 

and answer invited the jury to conclude that Cote was testifying 

that the victim had been sexually abused. This argument misses 

the mark. 

"The line between permissible and impermissible opinion 

testimony in child sexual abuse cases is not easily drawn." 

Commonwealth v. Richardson, 423 Mass. 180, 186 (1996). Where, 

as here, there is an "absence of evidence of physical injury, a 

medical expert may be able to assist the jury by informing them 

that the lack of such evidence does not necessarily lead to the 

medical conclusion that the child was not abused." Commonwealth

v. Federico, 425 Mass. 844, 851 & n.13 (1997). See Commonwealth

v. Hrabak, 440 Mass. 650, 656 (2004).

In Federico, a case similar to that at bar, an expert 

witness who was a pediatric gynecologist and had not treated 

either of the two female victims "responded to a series of 

hypothetical questions." In each case she was asked to "assume 

certain facts, one of which was vaginal penetration of a girl by 

an adult male, and another was the absence of physical signs of 

 

evidence presented to support the conviction of penile-vaginal 

rape.
10

trauma to the genital area of the girl. The remaining assumed 

facts (different in each hypothetical question) concerned the 

ages of the girls, frequency and the timing of intercourse, and 

the timing of the physical examination of the girls in relation 

to the most recent act of intercourse. [The pediatric 

gynecologist] was then asked whether the assumed facts were 

'inconsistent' with each other. She opined that the assumed 

facts were not 'inconsistent.'" Id. at 846, 854-855. The court 

held that "[t]he jury could not have understood [the pediatric 

gynecologist's] testimony to mean that the abuse did occur, but 

only that it was possible that the abuse had occurred." Id. at 

852.

9 

Here, the prosecutor posed a question that included 

information that was identical in all material respects to the 

questions posed to the pediatric gynecologist in Federico:

"[A]ssume that for the purposes of this question 

that a girl approximately ten to twelve years of age was 

anally penetrated by an adult male penis, and she did not 

complain of any bleeding or injury, but she did not know if 

any lubricant was used or not.

"Based on your training and experience, do you have an

opinion to [a] reasonable degree of medical certainty as to 

whether or not those assumed facts are inconsistent?"

 

9 In Federico, the Supreme Judicial Court also determined 

that the questions posed to the other medical expert -- the 

child psychiatrist -- were "deeply flawed" and reversed the 

convictions on that basis. Id. at 853.
11

Cote responded, "It is not inconsistent. It is typical."10

Because Cote had conducted a sexual assault examination of 

the victim, but the judge had excluded the evidence from that 

examination, Cote presented to the jury as a nontreating medical 

expert. Contrast Commonwealth v. Velazquez, 78 Mass. App. Ct. 

660, 666-667 (2011) (potential prejudice amplified when witness 

testifies both as percipient witness and expert). Moreover, 

Cote never gave an opinion as to "whether the alleged victim was 

in fact subjected to sexual abuse." Federico, supra at 849. 

See Commonwealth v. Quincy Q., 434 Mass. 859, 872 (2001) (no 

error where expert described her findings from her physical 

examination and general findings associated with sexual abuse). 

In addition, Cote, like the pediatric gynecological expert in 

Federico, gave an opinion that these facts were not 

"inconsistent" with abuse, thereby conveying to the jury that it 

was merely possible the abuse occurred but not that it had 

occurred. See Federico, supra at 852. There was no error here. 

4. Juror voir dire. The defendant argues that the judge 

should have granted his request to conduct a voir dire of a 

juror who became visibly upset during trial. 

At the beginning of the fifth day of trial, the judge 

informed counsel that the court officers had brought to his 

 

10 The judge struck the portion of Cote's response stating 

that "[i]t is typical." 
12

attention that there was some personal "discomfort or hostility" 

among some jurors unrelated to the case. The judge gave the 

jury a "pep talk on civility and getting along together," noted 

that jury service was not easy, and encouraged them to be at 

least professionally courteous with each other. Acknowledging 

"that there ha[d] been some non-case-related discomfort among 

one or more of the jurors," the judge further commented that 

since fourteen of them had been "thrown" into a small room with 

some "unusually long break periods," it was "understandable that 

there could be some personal friction." However, he advised, 

this was "not a basis for excusal [sic], because it doesn't 

prevent each or any one of [them] from being fair and impartial 

and doing the job that [they were] sworn to do." 

Following the instruction, the prosecutor stated at sidebar 

that "Juror 13 seems to be sniffling and crying"; the judge 

agreed.

11 The following day, both the prosecutor and defense 

counsel sought an inquiry of both jurors. Acknowledging that he 

had observed that juror 13 was crying as he gave his "little pep 

talk," the judge ruled in relevant part:

 

11 On appeal, the defendant characterizes juror 13 as having 

"tears streaming down her face." Although the defendant's trial 

counsel described her in the same way, the judge responded that 

he "didn't see tears streaming down her face, but [he] certainly 

did see that she was emotional, and [he thought] it was a fair 

characterization to say that she was crying as [he] gave [his] 

little pep talk."
13

"But I did not see the emotion continue. I think it 

was a passing matter. I made a conscious effort thereafter 

to observe Juror No. 13 and observed her during the course 

of the testimony on repeated occasions being attentive. 

Not being emotional, being attentive, taking notes and 

looking to be fully engaged." 

. . .

"In my view that inquiry is not required in this case 

and would be a[n] impermissible insertion of the Court into 

a personal relationship between jurors that I think has 

resolved itself and will continue to be resolved in a way 

that will not affect the fairness or impartiality of any 

juror."

We agree with the Commonwealth that the judge did not abuse 

his substantial discretion in declining to conduct a voir dire 

of the juror. Compare Commonwealth v. Connor, 392 Mass. 838, 

845 (1984) (when determining whether to discharge deliberating 

juror, judge not permitted to inquire about "the juror's 

relationship with his fellow jurors"); Commonwealth v. Keaton, 

36 Mass. App. Ct. 81, 87-88 (1994) (judge entitled to use his

own observations at trial to assess juror's attentiveness).

12

Judgments affirmed.

 

12 The defendant argues that the case of Commonwealth v. 

McGhee, 470 Mass. 638 (2015), supports his contention that the 

judge should have conducted a voir dire of juror 13 in this 

case. His reliance is misplaced. McGhee involves a situation 

where a juror clearly slept through significant portions of the 

trial testimony. Under those circumstances, the judge abused 

his discretion by not conducting a voir dire. Here there was no 

suggestion that the juror was inattentive. Instead, the juror 

was momentarily upset, but the judge specifically observed that 

the situation resolved itself.