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-873

COMMONWEALTH

vs.

BRADLEY J. SCARBROUGH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction, following a jury 

trial in Cambridge District Court, of one count of indecent 

assault and battery on a person fourteen or older, in violation 

of G. L. c. 265, § 13H. The defendant contends that the judge 

erred by declining to give a missing witness instruction 

relative to the victim. Because we are not persuaded that the 

defendant laid a sufficient foundation for a missing witness 

instruction, we affirm.

1. Discussion. a. Standard of review. We review the

trial judge's decision to decline a missing witness instruction 

for abuse of discretion. See Commonwealth v. Williams, 450 

Mass. 894, 901 (2008). Such a decision "will not be reversed 

unless the decision was manifestly unreasonable." Commonwealth
2

v. Saletino, 449 Mass. 657, 667 (2007), citing Commonwealth v. 

Thomas, 429 Mass. 146, 151 (1999).

b. Missing witness instruction. The proponent of a 

missing witness instruction bears the burden of establishing, on 

the record, a sufficient foundation for the instruction.

Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020). In

deciding whether this foundation has been established, a judge 

must consider several factors. These factors "include, without 

limitation, the strength of the case against the party against 

which the adverse inference is sought to be drawn or, stated

otherwise, the importance of the testimony of the missing 

witness to that party; the 'physical availability of the 

witness, and the likelihood that he can be produced by summons 

or otherwise,' absent a plausible reason for nonproduction; 

whether the evidence could be produced from other sources; and 

whether the witness is equally available to either party." 

Williams, 450 Mass. at 900, quoting Commonwealth v. Franklin, 

366 Mass. 284, 293 (1974).

Here, there was conflicting evidence on each of these 

factors. Regarding the physical availability of the witness, 

the judge was made aware that the Commonwealth had made some --

although not exhaustive -- efforts to obtain the victim's 

presence at trial but had not been successful. See Williams, 

supra. The Commonwealth also proffered some evidence of other
3

plausible reasons for nonproduction of the witness. For 

example, there was evidence that the victim was subject to a 

probation revocation at the time of the trial, from which the 

judge could have inferred that she would not be sympathetic to 

or cooperative with the prosecution in this case. See id. See 

also Commonwealth v. Anderson, 411 Mass. 279, 283 (1991) 

(Commonwealth's failure to call inmate to testify concerning 

altercation at prison permissible where "[l]ogic would dictate 

that, because of his status [as an incarcerated person], and the 

Commonwealth's role in prosecuting him, [the witness] would be 

naturally antagonistic toward the Commonwealth's interests").

There was also ample evidence that the victim was intoxicated at 

the time of the event, which could have detracted from the

potential strength and credibility of her testimony. See 

Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 554 (2006)

(missing witness instruction inappropriate where defendant had 

plausible reason not to call witness because "both [witnesses] 

were under the influence of alcohol on the night in question, 

and neither would have been likely to bolster the defendant's 

credibility in the eyes of the jury"). Additionally, the judge 

could have concluded that the victim's address, which we infer 

was provided on the unredacted copies of the ambulance records 
4

entered into evidence, was equally available to both parties.1 

See id. at 553.

Even assuming that none of these factors supported the 

judge's decision to deny the requested instruction, however, we 

conclude that on the strength of the evidence of the victim's 

intoxication alone, the judge was within her discretion in 

concluding that a missing witness instruction was not required.2

See Williams, 450 Mass. at 901. The contested issue at trial 

was whether the victim consented to the sexual activity, and the

Commonwealth presented compelling evidence that the victim was 

too intoxicated to be capable of consent. See Commonwealth v. 

Blache, 450 Mass. 583, 591-592 (2008) (lack of consent may be 

established by proving beyond reasonable doubt that victim was 

"so impaired as to be incapable of consenting"). Contributing 

to our conclusion are the following facts, established chiefly 

through the testimony of four Commonwealth witnesses, as well as 

through admission of the Emergency Medical Services (EMS) Report

into evidence.

1 To the extent that the defendant suggests that his probation 

conditions -- specifically, the requirement that the defendant 

have no contact with the victim -- prohibited defense counsel 

from using legal process to obtain her presence as a witness at 

trial, he has provided no legal support for his position. 2 We are mindful that after the defendant requested a missing 

witness instruction, the trial judge stated, "I don't think [the 

Commonwealth's case is] strong enough without [the victim]."

However, after a careful review of the record, we take a 

different view.
5

Bystanders testified that during the incident, the victim

appeared to be "very intoxicated." The victim's head was

"tilting back," as if she could not keep it straight, and her 

"eyes were rolling back." The victim's body movements were 

"slowed" and "delayed," and her eyes were "glazed." She did not 

"seem in full control," or even conscious.

Once officers arrived on scene, they separated the parties. 

They observed that the victim "was hunched over, swaying back 

and forth, and was having trouble to stay awake." She appeared 

"disoriented, under the influence of something. She was kind of 

nodding off, swaying, had trouble keeping her eyes open, you 

know."

When officers attempted to speak with the victim, they 

noticed that her speech was "very slurred" and "unintelligible." 

It took the victim "two to three minutes" to answer three basic

questions, including, "Where are you? How old are you? And 

what's today's date?" During the entire ten-minute conversation

with officers, the victim was only able to keep her eyes open 

for "[a] minute or so." There was also a "heavy odor of 

alcoholic beverage coming from her breath."

Officers also described the victim as having "trouble 

sitting on her own." When asked if she could stand, the victim 

"attempted to do so, [and] she quickly fell," so officers

requested an ambulance. Once the ambulance arrived, the 
6

officers "tried to escort [the victim] to the stretcher, [and] 

she tried to stand, but physically couldn't." When the victim 

tried to walk to the stretcher, she "almost fell down without 

[police] assistance." Officers ended up having to "basically 

carry her to the stretcher." Once the victim was on the 

stretcher, "she was able to wake up and say that she didn't want 

to go, and then fell -- then passed out."

In addition to the above testimony, defense counsel

introduced an EMS incident report into evidence, which contained 

elements that strengthened the Commonwealth's case. For 

instance, the report indicated that EMS's primary impression of 

the victim was that she suffered from "[a]lcohol 

[i]ntoxication." The report noted that "[t]here was an empty 

bottle of wine next to the [victim] that [she] confirmed she 

drank," and that the victim "was unable to self ambulate." 

Finally, the incident report states that the victim was unable 

to provide her signature because she was "[i]ntoxicated."

Under these circumstances, where the Commonwealth presented 

overwhelming evidence that the victim was "so impaired as to be 

incapable of consenting," the judge did not abuse her discretion 

by refusing to give a missing witness instruction. See Blache, 

473 Mass. at 591-592. See also Commonwealth v. Jansen, 459 

Mass. 21, 30-31 (2011); Commonwealth v. Chilcoff, 103 Mass. App. 

Ct. 48, 55 (2023).
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2. Conclusion. Defendant's conviction of one count of 

indecent assault and battery on a person fourteen or older, in 

violation of G. L. c. 265, § 13H, is affirmed.

Judgment affirmed.

By the Court (Green, C.J., 

Hand & Hodgens, JJ.3),

Clerk

Entered: November 1, 2023.

3 The panelists are listed in order of seniority.