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-257

COMMONWEALTH

vs.

JOSEPH ELIBERT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the 

defendant, Joseph Elibert, guilty of two counts of indecent 

assault and battery on a child under fourteen. On appeal, the 

defendant contends that the judge erred by (1) instructing the 

jury on the lesser included offense of indecent assault and 

battery; (2) admitting testimony in violation of the first 

complaint doctrine; (3) allowing the Commonwealth's expert 

witnesses to testify to facts not in evidence; and (4) admitting 

prior bad acts evidence. The defendant also claims that his 

trial counsel was ineffective for advising him not to testify. 

We affirm. 

Background. The sexual assaults occurred over a period of 

years while the defendant was in a long-term relationship with 

the victim's grandmother and living in the family's Dorchester 
2

apartment. The victim, who was sixteen years old at the time of 

trial, testified that the abuse began when she was nine years 

old and continued until the defendant moved out in January 2016. 

The assaults occurred in the living room of the apartment and in 

the defendant's car. When the victim was nine years old, the 

defendant "forced [her] onto the big couch," "took off [her] 

pants and [her] underwear and started licking inside [her] 

vagina and then he put his two fingers inside [her] vagina" 

while his other hand was "on [her] butt." When the victim was 

"maybe ten" years old, the defendant exposed his penis to her in 

the living room and asked her "to suck it and touch it" while 

"bringing his penis closer to [her]," "as if he wanted [her] to 

give oral sex." Beginning when the victim was in the sixth 

grade, the defendant assaulted her "[m]ore than once" while 

alone with her in his vehicle. The victim testified that he 

"would put his hands inside [her] khaki pants, through [her] 

underwear . . . touch inside [her] vagina," and "put his whole 

hand . . . inside [her] vagina." In addition, the victim 

testified to uncharged incidents of touching that occurred in 

the living room "[m]ore than once a week" from the time she was 

nine years old to when she was twelve.1

1 The victim testified that the defendant "would force [her] on 

his lap" so that she was facing him, "would either touch [her] 

breasts or lick [her] breasts, and he would also touch [her] 

butt." The defendant would then "move [her] back and forth in a 
3

The defendant was indicted on two counts of aggravated rape 

of a child for "putting his tongue to the [victim's] vagina," 

and "penetrating the vagina of [the victim] with his fingers;" 

two counts of indecent assault and battery on a child under 

fourteen for touching her breasts and buttocks; and one count of

open and gross lewdness. The jury found the defendant guilty of 

the lesser included offense of indecent assault and battery on 

both the oral and digital aggravated rape counts, and not guilty 

of the remaining counts. This appeal followed. 

Discussion. 1. Lesser included offense instruction. The 

defendant contends that the judge erred by instructing the jury 

on the lesser included offense of indecent assault and battery

because the evidence did not support such an instruction. 

Where, as here, the defendant timely objected to the 

instruction, we review for prejudicial error. See Commonwealth

v. LeBlanc, 456 Mass. 135, 142 (2010). 

It is well settled that indecent assault and battery on a 

child under fourteen is a lesser included offense of aggravated 

rape of a child, distinguished by the element of penetration. 

See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013); 

Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not 

error to give a lesser included offense instruction 'if on any 

sexual motion," and she "could feel his penis touching [her] 

vagina" through his clothing. 
4

hypothesis of the evidence, the jury could have found the 

defendant[] guilty of [the lesser included offense]' and not 

guilty of the greater offense." Commonwealth v. Porro, 458 

Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass. 

130, 132 (1994). "In determining whether there is such a 

hypothesis, 'the judge may consider the possibility that the 

jury reasonably may disbelieve the witnesses' testimony 

regarding an element required of the greater, but not the lesser 

included, offense . . . even though the element that 

distinguishes the two offenses was not specifically disputed or 

put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass. 

415, 424-425 (2012), quoting Porro, supra.

The defendant, relying on Commonwealth v. Donlan, 436 Mass. 

329, 337 (2002), argues that the lesser included offense 

instruction was improper because there was no "evidence that 

disputes or puts into question the element of penetration." See 

id. at 335 (defendant not entitled to lesser included 

instruction where evidence of differentiating element not 

"sufficiently in dispute" [citation omitted]). The defendant's 

reliance on Donlan, however, is misplaced, as he fails to 

recognize that we apply a "different test where the issue is 

whether the judge erred in giving a lesser included instruction 

rather than . . . by failing to give such an instruction." 

Porro, 458 Mass. at 537. 
5

In the present case, the jury may reasonably have 

disbelieved the victim's testimony as to penetration and found 

that there had been indecent touching that fell short of digital 

and oral aggravated rape. See Commonwealth v. Russell, 470 

Mass. 464, 481-482 (2015). The jury heard evidence that (1) in 

her 2016 interview with investigators, the victim alleged that 

the abuse consisted only of "touching" of her "breasts and [her] 

butt"; (2) her 2018 interview was "the first time [she] accused 

[the defendant] of rape"; and (3) when investigators asked why 

she was "accusing [the defendant] of rape when [she] had never 

mentioned that back in 2016," she told them she "needed to tell 

more, and maybe it will bring more power to the situation." The 

jury could reasonably have found, as the defendant argued in 

closing, that "in 2016, she says it was a touching," and "[i]n 

2018, she comes back and claims it was a rape." Furthermore, 

with respect to the testimony regarding penetration, "the jury 

properly could have considered the age of the victim," who was 

nine years old when the abuse began, and "could have had 

reasonable doubt as to the extent of the contact [she]

described." Id. at 482. The jury could reasonably have found, 

for example, that the defendant put his hand inside the victim's 

pants and "through [her] underwear," but disbelieved her 

testimony regarding penetration. See id. at 481 (if there was 

"evidence of both nonpenetrating and penetrating contact, the 
6

jury were free to believe the former and disbelieve the 

latter"). In this regard, the jury could also have considered 

the victim's testimony concerning the feeling "from" her vagina 

in reference to both alleged penetrative conduct and 

nonpenetrative touching by the defendant. We conclude that it 

was not error for the judge to give the lesser included 

instruction where "a jury reasonably could be convinced by the 

victim's testimony that the defendant sexually assaulted her but 

not be convinced beyond a reasonable doubt that penetration 

occurred." Porro, 458 Mass. at 537 n.10. 

The defendant further contends that the judge erred by not 

providing a specific unanimity instruction regarding the lesser 

included offenses of indecent assault and battery. Where the 

defendant did not request such an instruction nor object to the 

judge's instructions on that basis,2 we review for a substantial 

risk of a miscarriage of justice. Commonwealth v. Black, 50 

Mass. App. Ct. 477, 477 (2000). We discern no error, much less 

such a risk. 

"A specific unanimity instruction is required where an 

'indictment alleges in statutory terms a criminal offense 

occurring during a period of several months and, at trial, there 

is evidence that the defendant committed several such offenses 

2 The defendant objected to the judge providing a lesser included 

offense instruction and a prior bad acts instruction.
7

within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct. 

463, 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591, 

598 (1996). Here, the judge provided a specific unanimity 

instruction on the aggravated rape indictments.3 After 

explaining the elements of aggravated rape, the judge instructed 

that if the jury found that the Commonwealth had failed to prove 

each element beyond a reasonable doubt, that the jury "should 

consider whether the Commonwealth has proved the lesser crime of 

indecent assault and battery." In addition, the judge explained 

that each verdict slip for the two aggravated rape counts 

"references in parentheses the particular alleged contact," and 

that there were three choices on each slip: not guilty, guilty, 

or guilty of the lesser included offense of indecent assault and 

battery. The judge was not required, sua sponte, to provide an 

additional specific unanimity instruction on the lesser included 

offenses.4 

2. First complaint issues. The defendant argues that the 

judge erred by permitting the first complaint witness to testify 

3 The judge instructed, in part, that the jury must unanimously 

agree that the rapes occurred "on at least one specific 

occasion," and, with respect to the digital rape, that the 

offense occurred "either in the apartment or in the motor 

vehicle, or in both." 

4 Even assuming error, the risk that the jury would convict the 

defendant based on uncharged conduct was mitigated by the 

judge's clear instructions on the limited purpose for which the 

jury could consider the evidence of touching prior to January 

2016, see infra.
8

to her belief in the victim's allegations and admitting evidence 

of multiple complaints. We review the admission of such 

evidence for abuse of discretion. See Commonwealth v. Aviles, 

461 Mass. 60, 73 (2011). 

The defendant maintains that the first complaint witness

improperly testified over objection to her belief in the 

victim's allegations of abuse when she stated that "[i]t sounded 

pretty real to me, but after [the victim] said it was a joke." 

Viewed in context,5 the witness's challenged testimony was not an 

improper reflection of whether she believed the victim's 

allegations, but rather a relevant observation of the victim's 

demeanor and the manner in which she initially made the 

disclosure -– seriously as compared to joking. See, e.g., 

Commonwealth v. Espinal, 482 Mass. 190, 204-205 (2019) (first 

complaint witness may "testify as to the 'circumstances 

surrounding the initial complaint'" including "observations of 

the complainant" and "other relevant conditions that might help

a jury assess the veracity of the complainant's allegations"

[citation omitted]); Commonwealth v. King, 445 Mass. 217, 246 & 

5 The first complaint witness testified that the victim told her 

"that [the victim's] grandfather touched her breasts and her 

butt." When asked "how [the victim] said it," she testified 

that "[i]t sounded serious at first, but afterwards she told me 

it was a joke." The prosecutor then asked the witness to 

clarify what she meant when she said the victim said it 

"seriously," to which the witness responded that "[i]t sounded 

pretty real to me, but after she said it was a joke." 
9

n.26 (2005). On the record before us, we discern no abuse of 

discretion in the judge's admission of the first complaint 

witness's testimony.6,7

We likewise discern no reversible error in the admission of 

the victim's, the mother's, or Detective Johnson's testimony. 

"While the first complaint doctrine prohibits 'piling on' of 

additional complaint witnesses, 'it does not exclude testimony 

that is otherwise independently admissible and serves a purpose 

other than to repeat the fact of a complaint and thereby 

corroborate the complainant's accusations.'" Commonwealth v. 

Kennedy, 478 Mass. 804, 814 (2018), quoting Commonwealth v. 

McCoy, 456 Mass. 838, 845 (2010). The victim's testimony that 

on January 26, 2016, she "ha[d] a conversation with a school 

counselor"; "went to [her] mom's house," "Children's Hospital,"

and "[t]he police station"; and that she no longer lived in the 

6 Even assuming error, we discern no prejudice from the admission 

of the witness's testimony regarding the victim's disclosure 

"that her grandfather touched her breasts and her butt" where 

the defendant was acquitted on the indecent assault and battery 

charges for "touching her breasts" and "touching her buttocks." 

See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). 

Furthermore, the judge properly instructed the jury, both during 

the trial and in his final charge, on the limited purposes for 

which it could consider first complaint evidence.

7 We are likewise unpersuaded by the defendant's assertion that 

the prosecutor's closing argument, to which he did not object, 

exacerbated the prejudice from the admission of the first 

complaint witness's testimony. Where the admission of the 

testimony was not error, "the Commonwealth was permitted to rely 

on it during closing argument" and argue that her testimony 

corroborated the victim's account. Espinal, 482 Mass. at 205.
10

apartment or was alone with the defendant after that day "was 

not offered as first complaint testimony, but rather to provide 

context" for, inter alia, what led to the end of the years-long 

abuse. Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009). The 

victim's redirect testimony as to her family members' reactions 

to learning of the abuse8 was properly admitted to rebut 

questions raised by the defendant on cross-examination.9 Id. at 

297-299. Finally, we discern no reversible error in the 

admission of Detective Johnson's testimony where the defendant 

"opened the door" to the nature of the questions in the 2016 

forensic interview on cross-examination of the victim,

Commonwealth v. Torres, 86 Mass. App. Ct. 272, 277-278 (2014) 

(once defendant "opened the door," Commonwealth permitted to 

explore contents and context of statements in more detail), and 

the detective did not "reiterate[] [the victim's] accusations or 

8 Even assuming, arguendo, that it was error to admit the 

mother's testimony that she felt "[s]hock," "[c]onfusion," and 

"just hurt" after she "learn[ed] of some information" on January 

26, 2016, we discern no prejudice where the testimony was brief, 

she did not convey the content of the information she learned 

nor her belief in it, and the defendant relied on this testimony 

in closing argument to suggest that "[a]ny parent . . . would 

feel the same way" and the mother "had trouble believing" the 

allegations. See McCoy, 456 Mass. at 851-852.

9 After the defendant cross-examined the victim about her partial 

and delayed disclosures, the victim explained on redirect that 

she did not disclose the full extent of the abuse in 2016 

"[b]ecause of how [her] family reacted." 
11

enhance[] her credibility by suggesting that [he] believed 

her."10 Kennedy, supra at 815. 

3. Commonwealth's expert witnesses. The defendant next 

asserts that the judge erred by allowing the Commonwealth's 

expert witnesses to testify to facts not in evidence and to 

bolster their opinions with hearsay evidence through references 

to literature, research, studies, and observations of their 

colleagues' work. As the defendant did not object to the 

experts' testimony on this ground, either at trial or at the 

motion in limine stage, we review to determine whether there was 

error, and if so, whether it created a substantial risk of a 

miscarriage of justice.11 Commonwealth v. Grady, 474 Mass. 715, 

716-717, 719 (2016).

"Although facts and data not in evidence may form the basis 

of an expert witness's opinion testimony, the expert may not 

present on direct examination the specific information on which 

he or she relied . . . because expert testimony to the fact[s]

of the test results obtained by someone else . . . [is] hearsay"

(quotation and citation omitted). Commonwealth v. Greineder, 

10 We likewise reject the defendant's argument that the 

prosecutor's brief references to the victim "finally [speaking] 

up" on January 26, 2016, and to the family's reactions in 

opening and closing arguments, to which he did not object, 

exacerbated any prejudice, much less created a substantial risk 

of a miscarriage of justice. 

11 Even assuming this issue was properly preserved, we discern no 

prejudicial error for the reasons discussed infra. 
12

464 Mass. 580, 583 (2013). As the Commonwealth concedes, Dr. 

Schwartz's testimony on direct examination regarding the 

specific findings of her colleague's study of pregnant teenagers 

constituted inadmissible hearsay. That notwithstanding, we 

discern no substantial risk of miscarriage of justice in the 

admission of this testimony where the testimony was brief, and 

the jury found the defendant not guilty of both counts involving 

penetration.12 See Commonwealth v. Duffy, 62 Mass. App. Ct. 921,

923 (2004) (admission of evidence "obviously not unduly 

prejudicial given the defendant's acquittal on the charge to 

which it most directly related"); Commonwealth v. Sosnowski, 43 

Mass. App. Ct. 367, 372 (1997). The remainder of Dr. Schwartz's 

and Dr. Tishelman's testimony, however, was properly admitted. 

See Commonwealth v. Durand, 475 Mass. 657, 670 (2016) (testimony 

admissible where expert "testified that her opinion was based on 

relevant scientific literature but she did not name specific 

studies or discuss their factual findings"). 

Finally, we reject the defendant's assertion that the 

experts' testimony violated his right to confrontation. The 

literature, research, and studies to which the experts referred 

were not testimonial in nature and do not implicate the 

12 We likewise discern no substantial risk of a miscarriage of 

justice from the prosecutor's brief reference to Dr. Schwartz's 

inadmissible testimony during closing argument, to which the 

defendant did not object. 
13

confrontation clause. See Commonwealth v. Cole, 473 Mass. 317, 

329-330 (2015); Commonwealth v. Durand, 457 Mass. 574, 589 

(2010).

4. Prior bad acts evidence. The defendant contends that 

the judge erred by admitting the victim's testimony regarding

the defendant's uncharged conduct.13 Where the defendant 

objected to the admission of the prior bad acts evidence, we 

review for abuse of discretion. See Commonwealth v. McCowen, 

458 Mass. 461, 478 (2010). 

The victim's testimony regarding the uncharged touching 

incidents that occurred "more than once a week" was relevant and 

properly admitted for the limited purposes of establishing a 

pattern of conduct and demonstrating the nature of the 

relationship between the parties. See, e.g., Commonwealth v. 

Centeno, 87 Mass. App. Ct. 564, 567 (2015). The victim's 

testimony of the ongoing abuse also provided context for, inter 

alia, her delayed disclosure and alleged inconsistent 

statements. See, e.g., Commonwealth v. Childs, 94 Mass. App. 

Ct. 67, 72 (2018).

13 We reject the defendant's related assertion that the uncharged 

conduct was the only evidence of improper touching upon which 

the jury could have convicted him of the lesser included 

offenses of indecent assault and battery. As discussed supra, 

the jury reasonably could have disbelieved the victim's 

testimony regarding penetration and found indecent touching 

short of aggravated rape. See Russell, 470 Mass. at 481-482.
14

Furthermore, the judge's clear limiting instruction during 

his final charge mitigated the risk of undue prejudice to the 

defendant. The judge explained that the defendant was "not 

charged with that touching prior to January of 2016," specified 

the limited purpose for which the prior bad acts evidence was 

admitted, and emphasized that the jury could not consider that 

evidence as proof that the crimes occurred or of the defendant's 

character or propensity. We presume that the jury followed the 

judge's limiting instructions. See Commonwealth v. Bryant, 482 

Mass. 731, 737 (2019). Where the evidence admitted was highly 

probative for non-propensity purposes "and the chance of 

prejudice was minimized by a specific limiting instruction, we 

cannot say on the record before us that the judge's decision to 

admit the testimony was in palpable error." Commonwealth v. 

Dunn, 407 Mass. 798, 807 (1990). 

Likewise, the defendant's contention that the judge failed 

to provide a proper and timely limiting instruction lacks merit. 

The defendant asserts that the judge's use of the word "showing"

improperly implied that the prior bad acts evidence had in fact

occurred.14 Where the defendant did not object to the judge's 

14 In his final charge, the judge instructed the jury, in part, 

that "[d]uring trial, there was some testimony showing that the 

Defendant touched [the victim's] breasts or buttocks at other 

times between 2011 and 2016." 
15

instruction on this basis at trial,15 our review is limited to 

whether there was error and, if so, whether it created a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Pfeiffer, 482 Mass. 110, 128 (2019); Commonwealth v. Belcher, 

446 Mass. 693, 696 (2006). 

Viewing the instruction as a whole, see Commonwealth v. 

Riley, 433 Mass. 266, 270 (2001), we discern no reversible error 

where the judge explained to the jurors the limited purpose for 

which they could consider the evidence of the uncharged 

touching, "to the extent you believe it." Furthermore, the 

failure to provide the limiting instruction contemporaneously,

when such an instruction was not requested, was not error. See 

Commonwealth v. Teixeira, 486 Mass. 617, 629 n.7 (2021). 

5. Ineffective assistance of counsel. For the first time 

on appeal, the defendant alleges that his trial counsel was 

ineffective for advising him not to testify in his own defense. 

We review a claim of ineffective assistance of counsel to 

determine whether there was "serious incompetency, inefficiency, 

or inattention of counsel" that "deprived the defendant of an 

otherwise available, substantial ground of defence." 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 

15 Although the transcript is somewhat unclear, it appears that 

the defendant objected to the prior bad acts instruction solely 

because "a course of conduct is not something which is material 

in this case" and "[t]here's no issue of [identification]." 
16

It is well established "that the preferred method for 

raising a claim of ineffective assistance of counsel is through 

a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 

807, 810 (2006), citing Saferian, 366 Mass. at 90 n.1. "Relief 

on a claim of ineffective assistance based on the trial record 

is the weakest form of such a claim because it is 'bereft of any 

explanation by trial counsel for his actions and suggestive of 

strategy contrived by a defendant viewing the case with 

hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 

(2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 

(2002). Relief may be granted on such a claim, however, "when 

the factual basis of the claim appears indisputably on the trial 

record." Commonwealth v. Davis, 481 Mass. 210, 223 (2019), 

quoting Gorham, supra.

On the record before us, "the defendant's claim of 

ineffective assistance is not indisputable." Davis, 481 Mass. 

at 223. Without a motion for a new trial supported by an 

affidavit from trial counsel or the defendant, we are left with 

no basis on which to assess the credibility and plausibility of 

the defendant's contentions made on appeal. See Commonwealth v. 

Hoyle, 67 Mass. App. Ct. 10, 11 (2006). Nor does the trial 

transcript support the defendant's allegation, as the judge's 

colloquy with counsel and the defendant to address his decision 

whether to testify was not transcribed and the record is silent 
17

as to the advice trial counsel provided the defendant regarding 

this decision. Accordingly, the claim is speculative, and 

satisfies neither prong of the ineffective assistance of counsel 

test.

Judgments affirmed.

By the Court (Milkey, 

Neyman & Smyth, JJ.16),

Clerk

Entered: April 5, 2023.

16 The panelists are listed in order of seniority.