text:
    ADOPTION OF CIARA.
    17-P-751
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   After a trial, a judge of the Juvenile Court found the mother unfit to parent her daughter, Ciara, terminated her parental rights, and approved the adoption plan of the Department of Children and Families (DCF). Both the mother and Ciara appeal. They claim that the judge erred in finding the mother unfit and in terminating her parental rights. In addition, the mother claims that DCF failed to use reasonable efforts to reunify her with Ciara; Ciara claims that the judge abused her discretion in failing to order preadoption, posttermination visitation and ordering only quarterly postadoption visitation. We affirm.

1. Background. The crux of this case centers on the mother's struggle with addiction. The mother began smoking marijuana and experimenting with other drugs in her teenage years. Her substance use continued into her twenties, and included alcohol, cocaine, OxyContin, and Percocet. Despite her struggle, the mother was able to work and was eventually promoted to a supervisory role. After she began to use heroin, she was involuntary committed, pursuant to G. L. c. 123, § 35. Thereafter, she maintained her sobriety for a period of time, relapsing when her boy friend ended their relationship. During this time, the mother became pregnant, and Ciara was born in August, 2011. A mandated reporter filed a report with DCF, pursuant to G. L. c. 119, § 51A (51A report), as the mother tested positive for opiates and marijuana the day before Ciara was born.

In September, 2011, and January, 2012, DCF received two additional 51A reports alleging that the mother was using heroin and shoplifting. DCF continued to work with the mother to achieve and maintain her sobriety. Additional 51A reports were filed alleging that she continued to use drugs and to shoplift. By the fall of 2012, the mother had gone three months without treatment.

On May 23, 2013, a Randolph police officer filed a 51A report after Ciara was found wandering on a busy street, with no shoes, dressed in a "onesie," and with a feces-filled diaper. A care and protection petition was filed and DCF received temporary custody of Ciara. Some time thereafter, the mother overdosed on a prescription medication. After receiving emergency treatment, she entered an inpatient program, but left to join her then boy friend at a sober living program.

Overall, the mother's compliance with her service plan tasks was inconsistent. At varying times, she failed to follow through with outpatient treatment. She did not participate in any treatment and missed three weekly visits with Ciara in the summer of 2013. By the fall of 2013, the mother left inpatient treatment without completing the program. She relapsed again in July, 2014, and by her own admission, did not actively engage in treatment. At a visit with Ciara on August 5, 2014, the mother appeared to be under the influence; she entered a treatment program the next day. After seven months, the mother was terminated from the program for rule violations.

In March of 2015, DCF attempted to reunify the mother with Ciara. In May, 2015, the mother entered the Orchard Street Program, a residential treatment program where she could live with Ciara. A transition plan was created with the input of Ciara's treatment providers. The mother raised no concerns about the plan at the time. Ciara remained with her mother at the program for one month. The mother struggled to manage her own treatment and care for Ciara. On July 28, 2015, the program filed a 51A report after the mother admitted to using controlled pain medication, without a prescription, over the previous month. Within a day, Ciara was removed from the mother's care.

2. The mother's unfitness. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). As it is within the purview of the judge to weigh the evidence, assess the credibility of witnesses and, accordingly, make findings of fact, the judge's subsidiary findings will remain undisturbed unless shown to be clearly erroneous. Adoption of Nancy, 443 Mass. 512, 515 (2005).

Here, the judge issued comprehensive findings of fact and conclusions of law detailing the myriad factors supporting her decision. The judge properly considered the mother's history of substance use, treatment, and relapse, as well as its impact on the child. See Adoption of Serge, 52 Mass. App. Ct. 1, 7 (2001). "Evidence of alcohol or drug abuse is ... relevant to a parent's willingness, competence, and availability to provide care." Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). " '[A] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction ... [that] makes the parent ... unlikely to provide minimally acceptable care of the child' is not a temporary condition." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G. L. c. 210, § 3(c )(xii).

"A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Id. at 33. "[P]ast parental conduct [is] relevant to the issue of current parental fitness where that conduct was not too remote, especially where the evidence supported the continuing vitality of such conduct." Adoption of Larry, 434 Mass. 456, 469 (2001). A judge can "properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness." Adoption of Diane, 400 Mass. 196, 204 (1987).

Ciara has been residing with the same foster family throughout these proceedings, and they have been identified as the preadoption resource. When Ciara first entered foster care, she exhibited significant behavioral problems, including head banging and temper tantrums. She is diagnosed with an adjustment disorder with disturbance of conduct and "R/O" posttraumatic stress disorder. In foster care, Ciara has made progress, and she continues to work with a therapist. See Adoption of Frederick, 405 Mass. 1, 9 (1989) (parent's mental disorder relevant to extent it affects "capacity to assume parental responsibility" and "deal with a child's special needs"). The judge's findings as to the mother's fitness and the resultant neglect of Ciara are amply supported by the record.

3. DCF's reasonable efforts. The mother contends that DCF failed to make reasonable efforts to reunify her with Ciara. She did not, however, raise this claim in the Juvenile Court. "It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010). See Adoption of Gregory, 434 Mass. 117, 124 (2001). While the fact that the mother was not assigned a social worker at the time of the child's transition to her gives us pause, the child's best interests remain paramount. "[T]he proper focus of termination proceedings is the welfare of the child." Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting from Adoption of Gregory, supra at 121. Even assuming that DCF failed to make reasonable efforts to reunify the mother and Ciara, it is because of her long-term struggle with heroin and other drugs that the judge ultimately terminated the mother's parental rights. There was no error.

4. Visitation. Ciara claims that the judge erred in providing for a minimum of four postadoption visits per year and failing to provide for visits posttermination and preadoption. "Once it is established that a parent is unfit, the decision whether to grant postadoption [or posttermination] visits must be left to the sound discretion of the trial judge.... The judge's discretion is not, however, unfettered, but must be grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003) (quotations omitted). Here, the judge considered Ciara's need for stability and consistency as well as her relationship with the mother. In ordering quarterly postadoption visitation, the judge recognized that Ciara enjoys a significant emotional bond with the mother. The judge also considered Ciara's strong and nurturing attachment to her preadoptive family. The judge's ultimate decision to order quarterly postadoption visitation was supported by the record and was not an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Decree affirmed.

      The putative father died when the mother was six months pregnant.

      At trial, Ciara argued that the mother's parental rights should be terminated.

      Ciara was born with a low birth weight and remained in the hospital for nearly one week. Ciara was born drug free and showed no signs of withdrawal.

      The mother tested positive for amphetamines on four tests in April, 2015.

      Contrary to Ciara's argument, the judge did not fail to confront troublesome facts.

      She had trouble sleeping and accepting limits and was unsafe at home and in day care.

      Following entry of the decree, further hearings were conducted pursuant to G. L. c. 119, § 29B. The issue of posttermination visitation was addressed. Ciara did not object to the permanency plan, which included quarterly visitation posttermination. Accordingly, this aspect of Ciara's claim is moot.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Ramona HERNANDEZ (and seven companion cases  ).
    16-P-1544 16-P-1545
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Three of the companion cases are against Ramona Hernandez and four are against Rafael Henriquez.

   Ramona Hernandez and her husband, Rafael Henriquez, were arrested on March 23, 2012, culminating a joint operation (referred to as Operation Persistent Rain) between the Massachusetts State Police and United States Immigration and Customs Enforcement to dismantle an East Boston sex trafficking ring. A jury later found Hernandez and Henriquez each guilty of sex trafficking, deriving support from prostitution, owning or managing a place for unlawful sexual intercourse therein, and keeping a house of ill fame in connection with their roles as principals in the sex trafficking scheme.

In this appeal, Hernandez and Henriquez allege error in the trial judge's denial of their motion for a Franks hearing, see Franks v. Delaware, 438 U.S. 154 (1978), and renewed motion to suppress, and claim that the judge improperly limited the scope of their cross-examination of sex worker witnesses. They also argue that the sex trafficking statute, G. L. c. 265, § 50, is unconstitutionally vague, though for different reasons. Hernandez argues separately that the judge committed a number of errors at trial. Henriquez argues that the judge erred in denying his motion to suppress evidence based on the insufficiency of the Commonwealth's warrant affidavit. He also claims error in the denial of his motion to dismiss an indictment based on insufficient evidence before the grand jury. For the reasons stated below, we affirm the judgments.

Discussion. 1. Constitutionality of G. L. c. 265, § 50. a. Hernandez's claim. Hernandez argues that the sex trafficking statute, G. L. c. 265, § 50, is unconstitutionally vague because it criminalizes the same conduct already proscribed by existing statutes. Specifically, she claims that one who acts as a joint venturer in committing the crimes of managing a place for unlawful sexual intercourse, G. L. c. 272, § 6, or keeping a house of ill fame, G. L. c. 272, § 24, has no notice of whether he or she will be prosecuted under those statutes or under the more punitive sex trafficking statute.

"A statute violates due process and is void for vagueness when individuals of normal intelligence must guess at the statute's meaning and may differ as to its application, thus denying them fair notice of the proscribed conduct." Commonwealth v. Disler, 451 Mass. 216, 223 (2008). "Proscribed conduct, however, is not always capable of precise legal definition." Commonwealth v. Reyes, 464 Mass. 245, 249 (2013). A statute's language will be constitutionally adequate if it "conveys [a] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Commonwealth v. Adams, 389 Mass. 265, 270 (1983) (quotation omitted).

Here, the differences in the conduct prohibited by the statutes cited by Hernandez and the sex trafficking statute are plain. Both § 6 and § 24 of G. L. c. 272 punish those who knowingly own or maintain a place wherein persons engage in unlawful sexual intercourse for money. See Commonwealth v. Mullane, 445 Mass. 702, 714-716 (2006). In contrast, under G. L. c. 265, § 50, one who knowingly enables or causes another to engage in commercial sexual activity need not own or manage the place where such conduct occurs in order to be convicted of sex trafficking. Thus, although Hernandez argues that G. L. c. 265, § 50, criminalizes essentially the same conduct as other existing statutes, it plainly does not.

b. Henriquez's claim. Henriquez's argument that the sex trafficking statute is unconstitutionally vague because it lacks the element of force or coercion similarly lacks merit, the Supreme Judicial Court already having considered this precise issue in Commonwealth v. McGhee, 472 Mass. 405 (2015). In that case, the court held that "because G. L. c. 265, § 50(a ), is sufficiently clear and definite, it did not violate the defendants' rights to due process under the Fifth and Fourteenth Amendments and art. 12. The words of the statute have commonly accepted and readily understood meanings in the English language, and the phrase 'commercial sexual activity' is amply defined in G. L. c. 265, § 49. The statutory language provided fair notice to the defendants that the very conduct in which they engaged was the kind of conduct that the Legislature intended to prohibit and punish." (Footnote omitted.) Id. at 415. There was no error.

2. Motion for Franks hearing and renewed motion to suppress. There was no error in the denial of the defendants' request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, or in the denial of their renewed motion to suppress. A hearing on a Franks motion is required upon " 'a substantial preliminary showing' that the affiant made a material, false statement either intentionally or with reckless disregard for the truth." Commonwealth v. Winquist, 87 Mass. App. Ct. 695, 705 (2015), S.C., 474 Mass. 517 (2016), quoting from Commonwealth v. Ramos, 402 Mass. 209, 215 (1988). In addition, at least in the case of reckless falsehood, the false statement must be necessary to the existence of probable cause. Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767-768 (1981). The defendants made no such showing.

We agree with the judge, who found "nothing to suggest that there was an intentional or reckless misstatement by the [S]tate troopers." The defendants failed to demonstrate how what we see as minor inconsistencies between the search warrant affidavit and the testimony at trial, resulted from intentional or reckless police behavior. Furthermore, none of the alleged inconsistencies in the search warrant affidavit is necessary to the determination of probable cause. As such, there was no error in the denial of the defendants' request or motion.

3. Limitation on cross-examination. While a criminal defendant is entitled to a reasonable cross-examination of witnesses against him, that right of confrontation is not absolute. Commonwealth v. Barnes, 399 Mass. 385, 393 (1987). Generally, a trial judge "has broad discretion to limit cross-examination of a witness." Commonwealth v. Mercado, 456 Mass. 198, 203 (2010) (quotation omitted). To determine whether the judge abused this broad discretion, "we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination." Commonwealth v. Miles, 420 Mass. 67, 72 (1995).

Here, there is no question that the direct testimony of the sex worker witnesses was vital to the Commonwealth's case. Regarding their sex worker history, the judge ruled that their testimony admitting they made the initial contact in order to earn money as sex workers sufficiently covered the topic. She also determined that cross-examination about this history would "devalue them and their integrity to the point of perhaps tempting the jury to not treat this evidence with the proper seriousness." This was well within the judge's discretion to limit cross-examination "based on concerns about ... harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." Commonwealth v. Johnson, 431 Mass. 535, 540 (2000) (quotation omitted). Furthermore, because use of force or coercion is not an element of the sex trafficking statute, the defendants' aim to show the witnesses' voluntary involvement in the sex trafficking scheme is irrelevant. See Commonwealth v. McGhee, 472 Mass. at 427. Thus, there was no error.

4. Hernandez's separate claims. a. Motion for severance. Hernandez argues separately that the judge erred in denying her motions to sever the trials. Hernandez maintains that severance was necessary because the admission in evidence of her husband's confession violated Bruton v. United States, 391 U.S. 123, 137 (1968), holding that the introduction at a joint trial of a nontestifying codefendant's statement, which names and incriminates the other defendant, violates that defendant's right to confront her accusers under the Sixth Amendment to the United States Constitution.

" 'Where a nontestifying codefendant's statement "expressly implicate[s]" the defendant, leaving no doubt that it would prove to be "powerfully incriminating," the confrontation clause of the Sixth Amendment ... has been offended,' notwithstanding any limiting instruction by the judge that the jury may consider the statement only against the codefendant." Commonwealth v. McAfee, 430 Mass. 483, 488 (1999), quoting from Commonwealth v. Blake, 428 Mass. 57, 60 (1998). However, where a codefendant's statement becomes incriminating only when taken in context with other evidence adduced at trial, a limiting instruction will generally suffice to cure a violation of the defendant's confrontation rights. Commonwealth v. Blake, supra. See Richardson v. Marsh, 481 U.S. 200, 208-209 (1987). A limiting instruction is ineffective "only where the circumstances of the case and the nature of the codefendant's statement so obviously implicate the defendant in the crime itself as virtually to constitute direct incrimination." Commonwealth v. Blake, supra, quoting from Commonwealth v. James, 424 Mass. 770, 783 (1997).

At the judge's direction, the parties' redacted Henriquez's statement, excluding any reference to Hernandez's involvement in the crimes alleged. The trial judge also instructed the jury, both at the time of the statement's admission and twice during her final charge, that they could consider the statement solely as evidence against Henriquez, and not against any other defendant. Nevertheless, Hernandez argues portions of the redacted statement implied the involvement of another individual, whom the jury necessarily inferred was Hernandez. These portions include Henriquez's statement that "we pay the gas, we pay the toll, we pay everything," and that his "wife" purchased the vehicle that police followed and from which they eventually seized evidence.

There was no Bruton violation. Where one defendant gives an account of his and a coventurer's commission of a crime, "it would be a rare case where the process of redaction did not leave behind some" reference to other persons. Commonwealth v. Rivera, 464 Mass. 56, 70 (2013). "The law is clear, however, that inferential incrimination can be properly cured by a limiting instruction, even in cases where the inference is more inculpatory than here." Ibid. See Commonwealth v. Vazquez, 462 Mass. 827, 841-844 (2012) ; Commonwealth v. Wilson, 46 Mass. App. Ct. 292, 297-298 (1999).

Henriquez's statements did not so obviously implicate Hernandez as to violate the Bruton rule. His statement that "we" pay for certain things came immediately after his claim that "it's a lot of people [running the business]," and could have been taken as referring to someone other than Hernandez. Similarly, Henriquez's references to "my wife" only implicated Hernandez when considered together with the marriage certificate entered in evidence, and only concerned an ancillary fact: that she purchased the vehicle driven by Henriquez. In addition, the judge gave forceful limiting instructions to the jury three times. Henriquez's redacted statement incriminates Hernandez only to the extent that the jury accepted the other evidence against her detailing her role within the sex trafficking operation. The admission of such a statement, which only implicates Hernandez circumstantially when combined with other evidence in the case, does not offend Bruton. Consequently, the judge did not abuse her discretion by admitting the redacted statement and denying Hernandez's motion to sever the trials.

b. Ineffective assistance. Hernandez argues that her counsel was ineffective for eliciting testimony that she declined to speak to the police. We review counsel's actions under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), that is, whether counsel's actions constituted "behavior ... falling measurably below that which might be expected from an ordinary fallible lawyer" and "whether [counsel's actions] likely deprived the defendant of an otherwise available, substantial ground of defence."

During his cross-examination of Trooper Cuevas, defense counsel asked whether he had any further contact with Hernandez after her arrest and booking. The trooper responded that he attempted to interview her, but "she didn't want to talk." Defense counsel later explained at sidebar that his intent was to demonstrate that the trooper's interactions with Hernandez were brief, in order to impeach his opinion that he heard Hernandez's voice on the wiretap recordings, and that he did not intend to elicit the trooper's answer. After some discussion, defense counsel asked the judge to give the curative instruction at the end of trial, so as not to draw attention to the trooper's statement. The next day, again during cross-examination, Special Agent Arnold testified that he briefly conversed with Hernandez during "an attempted interview." The judge immediately instructed the jury to disregard that statement.

We see no failure of counsel rising to the level of ineffective assistance. While Trooper Cuevas and Special Agent Arnold should not have testified as they did, see Commonwealth v. DePace, 433 Mass. 379, 382-383 (2001), defense counsel inadvertently elicited their statements as part of his reasonable trial strategy. The brief references to Hernandez's silence "bore no relationship to the premise of [her] defense." See Commonwealth v. Brum, 438 Mass. 103, 121 (2002). The judge also gave strong curative instructions, one immediately after one statement, and again during her jury charge. Most importantly, at no time during the trial did the prosecutor suggest that the jury should infer Hernandez's guilt because she declined to speak with the police. See Doyle v. Ohio, 426 U.S. 610, 618-619 (1976).

c. Contact between witness and juror. On the fifth day of trial, Trooper Cashman reported to one of the prosecutors that on the previous day he encountered a woman juror in the court house elevator, where they spoke briefly. The trooper reported to the judge that a juror jokingly asked him to say that he knew her to cause the judge to excuse her from the jury. Then realizing she was a juror in the instant case, he responded, "[T]rials can be interesting." The judge conducted a voir dire of the juror (no. 181), as well as three other jurors. The judge asked the juror if she could continue to be fair and impartial and the juror responded affirmatively, emphasizing that the interaction with the trooper had nothing to do with the case. While the juror and trooper should not have conversed, the judge acted within her discretion when she concluded that the interaction was not prejudicial.

Hernandez argues that the judge erred by not questioning every juror in an individual voir dire as discussed in Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). However, the court in that case held that a voir dire of the entire jury is required "when a claim of potentially extraneous influence on a jury is brought to the judge's attention" (emphasis added). Id. at 800. If the judge determines, through questioning the jury collectively, that a juror has seen or heard extraneous material outside the record, "there must be individual questioning of that juror ... to determine the extent of the juror's exposure to the material and its effects on the juror's ability to render an impartial verdict." Id. at 800-801. Here, questioning the entire jury was unnecessary because Trooper Cashman identified the juror he spoke with, who in turn identified the only other jurors present. The judge then questioned these jurors individually, as required, made findings, and determined that each juror remained impartial. No further action was required, and the judge did not err in denying the motions for mistrial and to strike the trooper's testimony.

d. Jury instruction on identification. Hernandez's claim that the judge was required to instruct the jury on voice identification is without merit. The entirety of her argument is based on the Supreme Judicial Court's holding in Commonwealth v. Gomes, 470 Mass. 352, 376 (2015), wherein the court revised and updated the jury instruction that must accompany eyewitness identification testimony. However, in Gomes, decided more than a year after this trial, the court clearly stated that its holding was not retroactive. Ibid. Furthermore, aside from the "earwitness" identification, the Commonwealth linked Hernandez's voice to the recordings through other evidence. Finally, despite arguing the issue in his closing argument, defense counsel never requested an identification instruction. There was no error.

e. English-reading jurors. It was not error for the judge to inquire whether prospective jurors could read English, and to dismiss a juror who had trouble understanding English. "A trial judge is allowed a broad range of discretion in the jury selection process." Commonwealth v. Barnoski, 418 Mass. 523, 530 (1994). While the Sixth Amendment guarantees the right of a criminal defendant to a jury selected from a fair cross-section of the community, "the States retain 'broad discretion' and 'remain free to prescribe relevant qualifications for their jurors.' " Commonwealth v. Acen, 396 Mass. 472, 479 (1986), quoting from Taylor v. Louisiana, 419 U.S. 522, 538 (1975). One ground for disqualification of prospective jurors is the inability to "speak and understand the English language." G. L. c. 234A, § 4. This requirement does not run afoul of the Sixth Amendment, as "[n]o court has ever held that 'non-English speaking persons' form a distinct or protected class." Acen, supra. Nor was it error for the judge to require that prospective jurors be able to read English, because those who are unable to read English are similarly not a protected class. See Commonwealth v. Olivo, 369 Mass. 62, 72 (1975). Thus, there is no merit to Hernandez's contention that the judge denied her a jury representing a cross-section of her community.

5. Henriquez's separate claims. a. Denial of motion to suppress. Henriquez argues separately that the judge erroneously denied the defendants' motion to suppress in which they contended the affidavit filed in support of the wiretap warrant was insufficient. A wiretap warrant may issue only upon probable cause to believe that a designated offense has been, is being, or is about to be committed and that interception of communications would lead to evidence of that offense. Commonwealth v. Thorpe, 384 Mass. 271, 275 n.3 (1981). This probable cause determination requires that (1) a wiretap be conducted only in the investigation of organized crime, as reflected in the designated offenses of the statute, G. L. c. 272, § 99(A), as appearing in St. 1968, c. 738, § 1; and (2) the wiretap is necessary because "normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried," G. L. c. 272, § 99(E)(3). To establish necessity, "[t]he Commonwealth need not show that traditional investigative techniques were wholly unsuccessful or that the police had exhausted all other investigative procedures before filing its application for a warrant authorizing a wiretap." Commonwealth v. Fenderson, 410 Mass. 82, 83 (1991), quoting from Commonwealth v. Wilson, 405 Mass. 248, 250 (1989). Instead, "[a]n affidavit will be adequate if it indicates a reasonable likelihood that normal investigative techniques have failed in gathering evidence, or would fail if attempted." Id. at 83-84. In making this determination, the judge may draw from the wiretap warrants, their affidavits and applications, and all reasonable inferences drawn therefrom. Commonwealth v. Allen, 406 Mass. 575, 577-578 (1990). Affidavits supporting search warrants bear "a presumption of validity," and the defendant bears the burden of overcoming that presumption. Commonwealth v. John, 36 Mass. App. Ct. 702, 706 (1994), quoting from Franks v. Delaware, 438 U.S. at 171.

The affidavit submitted in support of the wiretap application provided a reliable basis to conclude that investigators attempted a number of other techniques that failed to produce evidence against the top level of individuals controlling the operation, including Henriquez. To dismantle entirely the sex trafficking operation, investigators required evidence against its principals, which proved unobtainable through traditional methods. Therefore, there was no abuse of discretion in the denial of the motion to suppress.

b. Denial of motion to dismiss. Finally, Henriquez also argues that it was error to deny his motion to dismiss the indictment against him for sex trafficking because the evidence presented to the grand jury was insufficient to support a finding of probable cause. When reviewing a motion to dismiss an indictment based on insufficient evidence, the sole issue that we confront is whether the grand jury heard "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). In this context, probable cause requires "reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed ... an offense." Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984) (quotation omitted).

General Laws c. 265, § 50(a ), inserted by St. 2011, c. 178, § 3, states in relevant part:

"Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means ... another person to engage in commercial sexual activity ... or causes a person to engage in commercial sexual activity ... or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude...."

The grand jury heard testimony that Henriquez arranged meetings with clients by telephone and then drove women to the clients' houses to engage in sexual activity for a fee. A witness also testified she immediately turned over to Henriquez the money she received, with some of it later returned to her. Taken together, the grand jury heard sufficient evidence to conclude that probable cause existed to arrest Henriquez for engaging in sex trafficking as defined by the statute. Thus, the indictment properly issued, and there was no error in the denial of both the motion to dismiss and the motion for a directed verdict.

Judgments affirmed.

      Hernandez's further attempt to create vagueness within the sex trafficking statute by attaching conspiracy to the crime of deriving support from prostitution, G. L. c. 272, § 7, fares no better. It does not matter that conspiracy contains the same "prospective" mens rea as sex trafficking, as the underlying crime-deriving support from prostitution-still criminalizes different conduct. Commonwealth v. McGhee, 472 Mass. 405, 417 (2015) (G. L. c. 272, § 7, prohibits sharing proceeds earned by known prostitute while trafficking statute does not require individual to benefit from commercial sexual activity, financially or otherwise).

      It matters not that the defendants in McGhee agreed that the element of force or coercion was not required by § 50, whereas here Henriquez argues that such an element must be read into § 50 to prevent it from being unconstitutionally vague. In both McGhee and this case, the defendants' argument is that without the element of force or coercion, the statute is unconstitutional. This contention was satisfactorily addressed in McGhee, 472 Mass. at 415-417.

      The judge questioned jurors nos. 75 and 131, whom juror no. 181 said were also in the elevator with her and the trooper. When juror no. 75 told the judge she didn't remember riding in an elevator with anyone the previous day, the judge questioned the only other woman on the jury, in case juror no. 181 was mistaken as to the two other female jurors in the elevator with her. Juror no. 75 later clarified that she had been in the elevator, but was not aware of any conversation because she was texting on her cellular telephone.

      In that case, nearly the entire jury-thirteen out of sixteen jurors-had read a newspaper article containing allegedly prejudicial information about the defendant. Commonwealth v. Jackson, supra at 797-798.

      The evidence included a cellular telephone seized from Hernandez with a telephone number that matched the number of the telephone being wiretapped; photographs on that seized telephone depicting Hernandez and her husband; the content of one wiretap recording wherein a male voice mentions Hernandez's husband and a female voice responds by giving him Hernandez's husband's telephone number; and the content of another recording wherein the female caller responds to the name "Ramonita."

      Furthermore, Hernandez's argument that Spanish-speaking jurors who could not read English would serve as a "check" on the translations of the recordings provided by the Commonwealth is contrary to the law of this State. When evidence in a foreign language is admitted along with an English translation, the translation is the only evidence the jury may consider, not the foreign language statement. Commonwealth v. Esteves, 46 Mass. App. Ct. 339, 345 (1999).

      The affidavit states that investigators employed physical surveillance, GPS tracking, trash analysis, banking and financial record analysis, cellular telephone toll record analysis, and confidential informant interviews. And contrary to Henriquez's claim, investigators did utilize several informants in the course of their investigation.

      Despite the phrase "sexual servitude" used in the statute, neither force nor coercion is a required element. "The clear and deliberate focus of the statute is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent." Commonwealth v. McGhee, 472 Mass. at 415. The phrase "sexual servitude" as used in the statute is simply a descriptor of the crime committed by meeting each of the elements therein, not an element of the crime itself. Thus, Henriquez's claim that the grand jury heard no evidence that he forced or coerced the women into prostitution is irrelevant.


text:
    Elizabeth Ann NYSTROM v. John Jeffrey NYSTROM.
    16-P-1756
    Appeals Court of Massachusetts.
    Entered: January 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In Nystrom v. Nystrom, 85 Mass. App. Ct. 1121 (2014), this court vacated the portion of the judgment of divorce of a Probate and Family Court judge awarding rehabilitative alimony and requiring the wife to reimburse the husband for the monthly cost of her health insurance coverage under his policy or requiring the wife to maintain her own coverage and remanded the matter for further proceedings. More specifically, this court directed the Probate and Family Court judge to make additional and updated findings on the wife's earning capacity and, in light of such updated findings, to determine the appropriateness of the order regarding the wife's health insurance obligations. This court also vacated the judgment dismissing the wife's complaint for modification of the alimony award. On remand, the judge entered additional findings of fact and a second amended judgment of divorce, from which the wife now appeals.

1. The wife's general term and retroactive alimony award. The wife argues that the judge abused her discretion in awarding general term and retroactive alimony below the guidelines set forth in the Alimony Reform Act of 2011 (act). The act requires a judge to consider several factors when setting an alimony award, including, but not limited to, the "income, employment and employability of both parties," and the "ability of each party to maintain the marital lifestyle." G. L. c. 208, § 53(a ), inserted by St. 2011, c. 124, § 3. The amount of the alimony award is generally limited to "the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes." G. L. c. 208, § 53(b ). Accordingly, the central inquiry when calculating alimony is into the parties' financial circumstances.

We agree with the wife that the amended findings do not adequately address the parties' financial status and need. In her original findings, the judge expressed her view that the wife had "not used her best efforts in becoming reemployed," and stated, without further explanation, that the wife "has the education to become employed in various fields," and that "[b]ased on [w]ife's work history, education and experience, she will become reemployed." In her amended findings after remand, the judge described the wife's current employment as a preschool teacher, in which she earns $390 per week, and stated that she did not find credible the wife's testimony that she had used her "best efforts" to find employment. However, the relevant inquiry for attribution of income is not whether a party has used her "best efforts" to secure more lucrative employment, but rather, whether a party is presently "capable of earning more with reasonable effort." Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 (2017). See Ulin v. Polansky, 83 Mass. App. Ct. 303, 306 (2013), quoting from Massachusetts Child Support Guidelines § 11-H (2009) ( "If the [c]ourt makes a determination that either party is earning less than he or she could through reasonable effort, the [c]ourt should consider potential earning capacity rather than actual earnings in makings its order"). The judge's amended findings still do not address the factors identified by this court in the first appeal as likely to impede the wife's job search efforts, such as her advancing age and the amount of time she had been out of the pharmaceutical sales industry. In addition, the judge made no findings regarding the wife's current earning capacity. Accordingly, the judge's findings are insufficient to support a determination that the wife is presently "capable of earning more with reasonable effort." Emery, supra.

While the amount of alimony ordered by the judge may be appropriate and within the act's suggested range of thirty to thirty-five percent of the difference between the parties' incomes, without findings addressing the wife's earning capacity, the wife's need for alimony, and the husband's ability to pay, we cannot determine whether the amount is appropriate. We therefore vacate the present order for general term and retroactive alimony in the second amended judgment and again remand the case to the Probate and Family Court for further (and updated) findings regarding the parties' financial circumstances and for a resulting appropriate order for alimony based on the updated findings.

2. Life insurance obligation. The wife appeals also on the ground that the probate judge incorrectly ordered the husband to obtain and maintain a separate life insurance policy, naming the wife as the beneficiary, in the amount of $125,000 during the period of time there is an obligation to pay the wife alimony. The act authorizes a judge to "require reasonable security for alimony in the event of the payor's death during the alimony period," including maintaining life insurance. G. L. c. 208, § 55(a ), inserted by St. 2011, c. 124, § 3. "Our cases recognize implicitly that a judge, in his or her discretion, may order that a party maintain life insurance as security for alimony even where the order for alimony does not continue after the support obligor's death." Braun v. Braun, 68 Mass. App. Ct. 846, 858 (2007). In light of any updated findings about the wife's earning capacity that may impact the amount of the alimony award, the judge shall consider the appropriateness of the amount of the life insurance policy. See G. L. c. 208, § 55(b ).

3. Failure to hold evidentiary hearing. Though the judge's findings were inadequate, we see no error in the judge's failure to conduct an evidentiary hearing on remand. Nothing in this court's prior order required such a hearing; the order required only that the judge reconsider the evidence previously presented and update the findings of fact based on that review to appropriately reflect the wife's earning capacity. The wife testified in the original proceedings and has not identified what (if any) additional evidence she would have produced if such a hearing had been permitted.

4. The wife's temporary alimony award. The wife's claim that the judge erred in calculating the amount of the temporary alimony award is unavailing. The act "addresses only divorce judgments and the modifications of such judgments; it does not address any matter that may arise between the filing of the complaint for divorce and the issuance of the judgment. Specifically, it did not amend, and did not even reference, G. L. c. 208, § 17, which provides for the payment of temporary alimony during the pendency of a divorce action." Holmes v. Holmes, 467 Mass. 653, 658-659 (2014). The temporary alimony statute is separate from the act and gives the court broad discretion in assessing motions for temporary alimony. The statute does not contain any specific criteria, only that the judge consider the immediate need of the applicant spouse for support to maintain or defend the divorce action. See G. L. c. 208, § 17. We discern no abuse of discretion in the judge's order that the husband make temporary alimony payments to the wife in the amount of $300 per week.

5. Health insurance obligation. In the second amended judgment, the judge ordered the husband to provide health insurance for the benefit of the wife for so long as it is available to him through his employment at a reasonable cost. The wife argues that this order fails to protect her should the husband remarry. This claim is speculative. There is nothing in the record indicating that the husband has plans to remarry in the near future. If and when the husband remarries, the wife is entitled to file a complaint for modification of the judgment.

6. The wife's complaint for modification. The wife misinterprets the proceedings in arguing that the judge "invented a trial for a [c]omplaint for [m]odification," and coerced the wife into dismissing that complaint. The complaint for modification, the dismissal of which was vacated by this court in the first appeal, was for the extension of the original alimony award. The judge had several discussions with the wife and her counsel about whether dismissal was warranted since the judge was issuing amended findings of facts and a new judgment specifically addressing the issue of alimony. The judge refused the wife's request to dismiss the complaint sua sponte and provided the wife with her options in proceeding with the complaint. The judge was explicit that the decision to dismiss the complaint was for the wife and the court was not forcing her to file a motion to dismiss. The judge's actions were appropriate. She was under no obligation to dismiss the complaint for modification sua sponte and the wife's motion to dismiss the complaint was not filed under duress.

7. The denial of wife's motion for recusal. The wife's motion for recusal was based primarily on the grounds that the probate judge was biased against the wife and in favor of opposing counsel based on the judge's findings and rulings in the original divorce proceedings, her actions on remand, exchanges between the judge and opposing counsel, and the wife's status as an unrepresented litigant. The determination of recusal is left to the judge's sound discretion. See Lena v. Commonwealth, 369 Mass. 571, 575-576 (1976) ; Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 546 nn.5,6 (1998). See also S.J.C. Rule 3:09, Canon 3(C)(1), as appearing in 382 Mass. 811 (1981). Based on the record before us, the judge did not abuse her discretion in denying the motion. In particular, we do not share the wife's characterization of the judge's comment that "it can be difficult to negotiate a settlement" as an implicit criticism of the wife's status as a self-represented litigant.

8. Conclusion. We (1) vacate the portion of the second amended judgment awarding general term and retroactive alimony; and (2) remand the case to the Probate Court for findings, rulings, and orders consistent with this memorandum and order. In all other respects, the second amended judgment is affirmed.

So ordered.

      The judge also denied the wife's motion for recusal, and entered judgment dismissing the wife's complaints for contempt.

      In the wife's proposed corrected findings she explained that as a preschool teacher she has summers off, so she only works thirty-eight weeks out of the year. It is not clear from the findings whether the judge considered this in calculating the wife's annual income for purposes of calculating the alimony amount.

      Similarly, the judge made no findings regarding the husband's ability to pay alimony and the wife's need for the same. Though updated financial statements were presented to the judge on remand, there are no subsidiary findings regarding the parties' expenses.

      Because the parties' marriage lasted more than twenty years, the judge was permitted to "order alimony for an indefinite length of time." G. L. c. 208, § 49(c ), inserted by St. 2011, c. 124, § 3. There was no error, however, in the judge's decision to terminate the obligation upon the wife's remarriage or death of either party because the act "does not establish a presumptive termination date for general term alimony where the length of the marriage is longer than twenty years." Holmes v. Holmes, 467 Mass. 653, 657 n.6 (2014). Contrary to the wife's assertions, the duration of the wife's general alimony term was not ambiguous or nonsensical.

      "Orders to maintain life insurance shall be based upon due consideration of the following factors: age and insurability of the payor; cost of insurance; amount of the judgment; policies carried during the marriage; duration of the alimony order; prevailing interest rates at the time of the order; and other obligations of the payor." Section 55(b ).

      In light of the passage of time, and our direction that the judge's further findings in the present remand address the parties' financial circumstances in an updated manner, an evidentiary hearing is warranted in the present remand. We leave to the judge's discretion whether to limit the evidentiary presentation to changes in the parties' financial circumstances or employment, if any, or whether to take additional evidence concerning the wife's prospects for more lucrative employment.

      As such, there was no error in denying the wife's motion to amend the temporary alimony award.

      The present record does not support the wife's suggestion that the present status of a former associate of the husband's counsel as an assistant case manager for the judge poses a conflict of interest. Of course, the employee in question cannot have any involvement in the judge's consideration of this matter. We also note that, while there was nothing improper in the judge's encouragement to the parties to engage in settlement negotiations, the judge should not subsequently have inquired into the substance of those discussions.

      The wife's request for sanctions for the husband's contempt of court is also denied. The parties were involved in numerous contempt proceedings brought by the wife. Between December, 2014, and May, 2016, the wife filed three separate complaints for contempt alleging that the husband failed to comply with discovery, had fallen behind on his retroactive alimony payments, and failed to acquire life insurance naming the wife as the beneficiary as ordered in the second amended judgment. The imposition of sanctions is discretionary. In this case, where the judge found that the husband complied with the second amended judgment or the court's temporary order on contempt, we find no merit in the wife's assertion that the court erred by failing to order sanctions for the husband's contempt.


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    COMMONWEALTH v. Joe SIMPSON.
    16-P-1591
    Appeals Court of Massachusetts.
    Entered: January 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In May of 2009, a Superior Court jury found the defendant guilty of armed assault with intent to murder and use of a motor vehicle without authority. The defendant timely appealed, and on October 5, 2011, we affirmed the judgments in an unpublished memorandum and order. Commonwealth v. Simpson, 80 Mass. App. Ct. 1108 (2011). On March 17, 2016, the defendant, pro se, filed a motion to revise and revoke his sentence or in the alternative for release from unlawful restraint (motion for release from unlawful restraint), in which he also requested postconviction discovery. An order entered on July 19, 2016, denying the motion without a hearing. The defendant then filed a motion to reconsider, which was also denied by the same judge. The defendant appeals.

In her memorandum of decision and order denying the defendant's motion for release from unlawful restraint and request for postconviction discovery, the motion judge determined that the defendant's motion did not challenge the legality of his sentence but instead raised evidentiary and procedural issues that occurred during his trial, which were more appropriate for consideration under a motion for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). On appeal the defendant maintains that the motion judge erred in denying his request for postconviction discovery, in treating his motion for release from unlawful restraint as a motion for a new trial, and in denying that motion. Additionally, the defendant argues for the first time on appeal that the sentence imposed constituted "cruel and unusual punishment" and the prosecutor's closing included improper remarks.

We agree with the motion judge's thoughtful memorandum of decision and discern no abuse of discretion or error of law by the judge. We affirm the orders, for essentially the reasons stated in the Commonwealth's brief on pages twenty-one through forty-four.

Order entered July 19, 2016, and order denying motion for reconsideration affirmed.

      The defendant sought an order that blood evidence in his case be turned over to him.

      The motion to reconsider included for the first time claims of ineffective assistance of trial and appellate counsel.

      We need not detail the procedural history regarding the appeal except to note that the defendant's appeal from the order entered July 19, 2016, is properly before us.


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    FROIO MANAGEMENT GROUP, INC. & another v. BARGAIN DISCOUNT MARKETS, INC.
    17-P-574
    Appeals Court of Massachusetts.
    Entered: January 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Washington Street Enterprises, LLC.

   Froio Management Group, Inc. (Froio), and Washington Street Enterprises, LLC (WSE), appeal from a Land Court judgment, arguing error in the denial of their motion for summary judgment and the allowance of Bargain Discount Markets, Inc.'s (BDM), cross motion for summary judgment. We affirm.

Background. In 1991, Dunn River Associates (Dunn) leased a portion of a commercial property (Dunn River Office Center) to Froio. Pursuant to the Froio lease, Dunn provided Froio with a right of first refusal to purchase the Dunn River Office Center on the same terms and conditions as any bona fide offer received by Dunn from a third party during the lease term. In 2009, Dunn entered into a lease with BDM to lease a different portion (BDM premises) of the Dunn River Office Center. The BDM lease gave BDM an option, exercisable in 2017 and 2018, to purchase the BDM premises for the greater of $10 million or the appraised value of the BDM premises. The BDM lease expressly provided that BDM's option was "subject to" Froio's prior right of first refusal to purchase the Dunn River Office Center, which included the BDM premises.

In 2012, Dunn received a third-party offer to purchase the Dunn River Office Center. Pursuant to Froio's right of first refusal, Dunn notified Froio, and offered to sell the property to Froio. Froio agreed and entered into a purchase and sale agreement with Dunn. Froio assigned its rights under the purchase and sale agreement to WSE-a new entity created by Froio's principals. WSE took title to the property, with Froio and BDM remaining tenants.

In 2015, BDM informed WSE that it intended to exercise its option under the BDM lease to purchase the BDM premises when the option ripened in 2017. WSE responded, taking the position that because Froio's right of first refusal was "still in full force and effect[,] ... the attempted exercise of BDM's option to purchase under its lease would trigger Froio's prior and absolute right to purchase BDM's premises." WSE asked BDM to confirm its understanding that Froio's right of first refusal was superior to BDM's option in writing, which BDM did not do.

Asserting that "BDM's refusal to acknowledge Froio's right of first refusal to purchase the premises is causing real and substantial harm," Froio and WSE filed the present action in September, 2015, seeking a declaratory judgment "that Froio has a valid right of first refusal to purchase the [BDM premises] at the price and subject to any proposed sale to a third party, including an offer to purchase by BDM." In May and June, 2016, the parties filed cross motions for summary judgment. Consistent with their prelitigation position and the declaratory relief sought in the complaint, WSE and Froio argued that "as [a] matter of law Froio's right of first refusal remains in full force and effect under the unambiguous terms of its lease with WSE," and "as a matter of law, BDM cannot use its option to override Froio's pre-existing and superior right." The judge denied WSE and Froio's motion, and allowed BDM's cross motion, holding that because Froio had exercised its right of first refusal, that right "is of no further force and effect and that BDM's option to purchase the BDM Premises is no longer subject to Froio's right of first refusal."

Discussion. On appeal, WSE and Froio concede that the right of first refusal was extinguished when it was exercised by Froio in connection with the purchase of the Dunn River Office Center from Dunn. Instead, WSE and Froio argue for the first time that when Froio exercised its right of first refusal, BDM's option was extinguished. We need not address the merits of this new argument because, having not been raised previously, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting from Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal"). See also Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 336 (2007), quoting from Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000) ("[C]laims-however meritorious-that have not been raised in the trial court are deemed to have been waived on appeal").

Judgment affirmed.

      Specifically, Dunn agreed, during the term of the lease and its extensions, not to sell the Dunn River Office Center to any third party:
      "unless ... (i) [Dunn] has received a bona fide offer to purchase the [Dunn River Office Center]; (ii) [Dunn] has given [Froio] written notice stating the name and address of the offeror and all terms and conditions of said offer, and containing an offer by [Dunn] to [Froio] to sell the same upon the same terms and conditions as set forth in the bona fide offer ... and (iii) [Froio] has not, within thirty (30) days of receiving said offer, responded to [Dunn] that it agrees to purchase the same in accordance with the terms of said offer."

      The BDM lease provided:
      "During the ninth and tenth year of the lease, [BDM] shall have the option to purchase the [BDM leased premises] for the greater of the following two amounts:
      (a) Ten Million Dollars ($10,000,000), or
      (b) appraised value pursuant to an agreed upon appraisal .... This option right is subject to the prior right of first refusal to purchase the entire parcel of land owned by [Dunn] (including the [BDM leased] Premises) and which prior right of first refusal is held by [Froio] located adjacent to the [BDM leased premises]."


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    Bodhisattva SKANDHA v. Joseph W. DUSZAK.
    17-P-695
    Appeals Court of Massachusetts.
    Entered: January 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   By this appeal, the plaintiff, Bodhisattva Skandha, seeks to reverse a ruling of a Superior Court judge rejecting Skandha's filing of a civil complaint.

Skandha is a prisoner currently assigned to the Massachusetts Correctional Institution at Norfolk. In October of 2011, a Suffolk Superior Court judge, after determining that Skandha "has made frivolous claims and by such claims has abused the court system," issued an order, pursuant G. L. c. 231, § 6F, requiring Skandha to seek leave of the regional administrative justice before he may file a new complaint in that court. In November of 2016, Skandha submitted a proposed complaint for review by the regional administrative justice. The complaint alleges Skandha was subjected to cruel and unusual punishment, in violation of his State and Federal constitutional rights, when a correction officer refused to allow Skandha to shower prior to a court appearance. The regional administrative justice rejected Skandha's complaint after concluding that it was "not supported by allegations plausibly showing an entitlement to relief and is frivolous."

We need not detail the ensuing procedural history except to note that judgment rejecting the filing of the complaint entered on May 4, 2017, and Skandha's appeal from that judgment is properly before us. See Russell v. Nichols, 434 Mass. 1015, 1016 (2001).

After review we conclude there was no error on the part of the regional administrative justice, for substantially the reasons discussed in the defendant's responsive memorandum in lieu of brief at pages five through nine.

Judgment affirmed.


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    N.C. v. DEPARTMENT OF CHILDREN AND FAMILIES.
    17-P-694
    Appeals Court of Massachusetts.
    Entered: January 29, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2015, a mandated reporter, see G. L. c. 119, § 21, submitted a report to the Department of Children and Families (department) expressing concern that the mother was neglecting the child's medical, physical, and educational needs. See G. L. c. 119, § 51A. The department investigated and supported the charge. See G. L. c. 119, § 51B. The mother appealed the department's decision and a fair hearing was scheduled. On the date set for hearing, the mother requested that the matter proceed only on written submissions. See 110 Code Mass. Regs. § 10.18 (2014). The mother's request was granted and she submitted five exhibits, her written argument, and certain other materials. The department submitted its § 51A intake and § 51B investigative reports. After considering the parties' submissions, a hearing officer concluded that there existed a reasonable basis to support the charge. The mother sought judicial review in the Superior Court pursuant to G. L. c. 30, § 14(7) ; a Superior Court judge denied the mother's motion for judgment on the pleadings and dismissed her complaint, and judgment entered for the department. We affirm.

The mother's conclusory brief does not contain a reasonably comprehensible legal argument and sets forth little factual detail. She does not cite to pertinent supporting record or legal authority. As both a legal and practical matter, therefore, we are unable to consider the mother's claims. Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, and to the extent we are able to discern the mother's claims, those claims lack merit.

The department may consider and rely on hearsay provided the hearsay has sufficient "indicia of reliability." Covell v. Department of Social Servs., 439 Mass. 766, 786 (2003), quoting from Embers of Salisbury, Inc. v. Alcoholic Bevs. Control Commn., 401 Mass. 526, 530 (1988). While the § 51A and § 51B reports from the department contain, in part, hearsay, that hearsay nonetheless bears such indicia, specifically the detailed, exhaustive reports provided by professional, specially-trained persons. The reports detail both the authors' direct observations and the content of their communications with identified persons. "[R]easonable persons are accustomed to rely" on such materials "in the conduct of serious affairs," G. L. c. 30A, § 11(2), inserted by St. 1954, c. 681, § 1, and the department properly could rely on these reports. Compare Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 185 (2010) ("admissibility of case work documents and court investigator reports prepared by department staff in the course of their work is no longer seriously in question" [quotation omitted] ).

"Our task on appeal is to determine whether there was substantial evidence to support [the hearing officer's] decision that there was reasonable cause to believe [the mother] was responsible for neglect." B.K. v. Department of Children & Families, 79 Mass. App. Ct. 777, 780 (2011). See Lindsay v. Department of Social Servs., 439 Mass. 789, 797 (2003). " 'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1. "Neglect is defined, in pertinent part, as the 'failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate ... [medical care, ...] emotional stability and growth.' " B.K., 79 Mass. App. Ct. at 779-780, quoting from 110 Code Mass. Regs. § 2.00 (1996).

As discussed in some detail in the department's brief at pages 29-32, the evidence in this record, taking into account the mother's claims and such other matters as fairly detract from the supporting evidence, Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999), "easily meets that test." Lindsay, 439 Mass. at 798.

Judgment affirmed.

      We also note, as the department observes, that the mother had full access to these materials and at no time objected to their introduction, sought to interview or depose the report authors or their communicants, or otherwise at any time complained that she did not have a full and fair opportunity for cross-examination. We need not consider the matter further.


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    COMMONWEALTH v. Heather P. WHITLEY.
    16-P-402
    Appeals Court of Massachusetts.
    Entered: January 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of two counts of larceny over $250. On appeal she argues that the evidence was insufficient to support the convictions, that the judge erred in his response to a jury question, and that he erred by failing to hold a hearing to determine the defendant's ability to pay restitution. As the Commonwealth agrees, before ordering restitution, the judge should have assessed the defendant's ability to pay in accordance with Commonwealth v. Henry, 475 Mass. 117 (2016). We therefore vacate the restitution order and remand for further proceedings on that issue only. We reject the defendant's remaining arguments and affirm the judgments.

Background. We summarize the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant and her then-wife, Nancy Whitley, planned to develop a retirement community and chose an old mill in Easthampton as the location. They formed a limited liability company called Possibilities and hired Attorney Benjamin Barnes to negotiate the purchase of the mill.

While negotiating the purchase, Barnes dealt primarily with the defendant "in terms of deposits and transfers of funds." Meanwhile, Nancy worked on the design and development of the condominiums. In December of 2006, Barnes and the mill owner reached a memorandum of understanding that Possibilities would purchase the mill for $1.1 million. After paying a nonrefundable deposit of $25,000, Possibilities entered into a purchase and sale agreement with the owner. The agreement required an additional nonrefundable deposit, but Possibilities was ultimately unable to pay the entire amount, even with several extensions of the closing date. As a result, the sale did not occur. The defendant signed the memorandum of understanding, the purchase and sale agreement, and the first closing date extension on behalf of Possibilities.

While Barnes was negotiating the purchase of the mill, the defendant and Nancy marketed the property and collected presale deposits from parties (buyers) interested in purchasing finished condominiums. The buyers each signed purchase and sale agreements that included the following clause:

"Deposits. All deposits made hereunder shall be held in an interest bearing escrow account by Benjamin A. Barnes, Esq., attorney for SELLER (the 'Escrow Agent') for the proper performance of this Agreement on the part of BUYER subject to the terms of this Agreement and shall be duly accounted for at the Time of Closing."

Barnes, however, had no knowledge of these agreements and did not have an escrow account to hold presale deposits. Instead, the defendant and Nancy placed the deposits they received into either the Possibilities general business account or a client escrow account they opened in November of 2006.

In August of 2006, buyer Marcia Morrison paid Possibilities a deposit of $27,188. The money was initially deposited into the Possibilities client escrow account in December of 2006, but, less than two weeks later, the defendant transferred $25,000 to the business account. Morrison paid an additional $3,161 deposit in January of 2007, after meeting with the defendant and Nancy and signing a purchase and sale agreement. Again, the money was initially deposited into the client escrow account, but, within a few weeks, the defendant withdrew or transferred more than $45,000 from the account to use to finance the project.

Another buyer, Ashish Rajadhyaksha, dealt mostly with the defendant through electronic mail messages (e-mail). In December of 2006, the defendant e-mailed Rajadhyaksha, stating that "[a]ll deposits and reservations are held in escrow and are not used to finance any of the project" and "[s]hould the project dissolve, all deposits would be returned with interest accrued." The following month, the defendant repeated those assurances, stating that the deposits "[are] refundable if [Possibilities] choose[s] not to purchase [the mill]." After Rajadhyaksha expressed concern about environmental issues relating to the project, the defendant wrote, "We have ... gone to great length to write protective language into the agreement that gives an out if there are problems that are so great we could never remediate them.... I certainly would not put your funds in jeopardy ...." Rajadhyaksha responded that he would wire a deposit but "want[ed] to make sure that it'll stay as a deposit and not [be] handed over until the environmental thing is cleared up." The defendant replied, "We have a bank check generated that Benjamin [Barnes] holds until all terms of the [purchase and sale] are fulfilled."

On January 23, 2007, Rajadhyaksha wired a $55,000 deposit to the Possibilities business account. The same day, the defendant transferred $30,000 to Barnes to use toward the mill purchase. On March 23, 2007, Rajadhyaksha wired an additional deposit of $19,000 to the Possibilities business account. The next day, the defendant wrote a $21,000 check from that account to Barnes.

Rajadhyaksha did not sign a purchase and sale agreement until July of 2007, by which time the project had already failed. Nonetheless, the purchase and sale agreement contained a rider allowing Possibilities to use Rajadhyaksha's deposits toward the purchase of the mill. Several months later, following a lack of activity, Rajadhyaksha questioned the defendant about the status of the project. The defendant assured him that "[i]f the property issues are not resolved in 90 days we will refund all deposits made."

In late 2007 the defendant "left" Nancy, and Nancy "had a lot of trouble reaching her over the next few months." Nancy became suspicious, checked the Possibilities client escrow account, and found it nearly depleted with a balance of only $10.01. She then wrote letters to each of the buyers, stating that only $10.01 remained in the account and that she "ha[d] been attempting to piece together what happened to [their] money." She further stated similarly in each of the letters, "Heather [the defendant] handled all the ... transactions related to these escrow accounts. It was my clear understanding that all deposits were to be left in escrow until closing time or until the project ended, so I cannot explain why there would have been any activity on your account after the initial deposit."

Discussion. 1. Sufficiency of the evidence. We review the evidence in the light most favorable to the Commonwealth to determine whether any "rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Mendez, 476 Mass. 512, 523 (2017). Larceny by false pretenses "requires proof that (1) a false statement of fact was made; (2) the defendant knew or believed that the statement was false when [s]he made it; (3) the defendant intended that the person to whom [s]he made the false statement would rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property." Commonwealth v. McCauliff, 461 Mass. 635, 638-639 (2012), quoting from Commonwealth v. Mills, 436 Mass. 387, 396-397 (2002).

The defendant argues that there was insufficient evidence that she made a false statement to Morrison because Nancy was Morrison's main contact and it was Nancy who reviewed the purchase and sale agreement with Morrison and signed it. We disagree. A false statement may be written, see Commonwealth v. Reske, 43 Mass. App. Ct. 522, 525 (1997), and may be spoken by another person, even if that person is unaware of the falsity. See Commonwealth v. Lepper, 60 Mass. App. Ct. 36, 40 (2003). A defendant's knowledge of a false statement in a contract can "be inferred from several circumstances, weighed collectively," including the creation of the contract and the timing between the contract signing and the fraudulent use of funds. Commonwealth v. Kiernan, 348 Mass. 29, 46-47 (1964). These inferences "need only be reasonable and possible[, not] necessary or inescapable." Commonwealth v. Morgan, 449 Mass. 343, 349 (2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989).

Here, the "Deposits" clause in the purchase and sale agreement was false. The presale deposits were not given to Barnes, and he did not have an escrow account for Possibilities. There was evidence, moreover, from which the jury could find that the defendant knew of the false statement. When asked where she got the purchase and sale agreement, Nancy testified that "we worked on [it] ... [with] a real estate attorney, ... who was helping us with it." The terms "we" and "us" plainly referred to the defendant. The defendant was also present when Morrison reviewed and signed the agreement and, not long before, had represented to another prospective buyer, Rajadhyaksha, that all deposits would be held in escrow. A rational jury could infer from these circumstances that the defendant knowingly made a false statement to Morrison. See Kiernan, 348 Mass. at 46-47.

The defendant next contends that she did not utter a false statement to Rajadhyaksha because the rider in the purchase and sale agreement stated that his deposits could be used toward the purchase of the mill. But Rajadhyaksha paid the deposits months before executing the agreement, based on repeated assurances from the defendant that they would remain in escrow and be returned if the project fell through. Despite those assurances, the defendant immediately transferred the deposits to use toward purchasing the mill. The defendant also falsely told Rajadhyaksha, after executing the agreement, that she would refund all deposits "[i]f the property issues are not resolved in 90 days." Based on this evidence, the jury could have found that the defendant made numerous false statements in relation to Rajadhyaksha's deposits.

2. Answer to jury question. During deliberations the jury asked: "If Nancy made the statement that the money would be held in escrow or wrote the P and S, should [the defendant] have been considered to have made a false statement: One, if she was present when it was discussed; two, if she knew about it; three: Simply because she is a business partner and they both signed cooperating agreement and are listed in management." After a discussion with counsel, the judge responded by saying:

"I cannot answer the question yes or no. I will tell you that the facts are entirely for you to resolve and that ... the factual questions must be resolved based upon the evidence and the facts that you find from the evidence and any reasonable inferences that you draw from those facts.
"As I told you, any false statement, if any, may have been made orally or in writing or by acts or in whatever way ideas may be communicated.
"The three items ... in your note are factors that you may consider but in the end, it's up to you to say whether or not the Commonwealth has proven beyond a reasonable doubt that the defendant made a false statement in accordance with the definition that I just gave you."

Because the defendant failed to raise any objection to the judge's answer, we review her challenge to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). "The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Wood, 469 Mass. 266, 293 (2014), quoting from Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012). A judge is "not authorized to speak" to a factual issue. Commonwealth v. Nelson, 468 Mass. 1, 16 (2014).

We conclude that the judge's answer was appropriate. He properly recognized that the question implicated a factual issue regarding the defendant's knowledge. The defendant does not point to any legal error in the instructions, nor does she articulate how the judge should have responded to the question. Accordingly, as there was no error, there is no substantial risk of a miscarriage of justice. See ibid.

3. Restitution. The defendant argues, and the Commonwealth agrees, that the judge should have assessed the defendant's ability to pay restitution, as required by Henry, 475 Mass. 117. We likewise agree and therefore vacate the restitution order and remand the case for further proceedings consistent with Henry.

We do not, however, agree with the defendant that the case should also be remanded for resentencing. At the sentencing hearing, the parties were in agreement that the defendant's sentence should include a probationary period of ten years. Henry does not affect that agreement, and so remand for resentencing is unnecessary. See id. at 125 ("the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period"). Cf. Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 185 n.11 (2016) ("Because the judge found that the parties had reached an agreement on the amount of restitution that should be paid to the victim, the decision in Commonwealth v. Henry... does not affect our analysis").

Conclusion. The judgments are affirmed. The order requiring the defendant to pay restitution is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

affirmed in part; vacated in part and remanded.

      The jury acquitted the defendant of a third such count.

      To avoid confusion, we will refer to Nancy Whitley by her first name.

      Barnes testified that it was improper to take presale deposits before the required permits and financing were in place, without preserving the deposits in escrow.

      Barnes testified that, as of that date, he was not aware of any ongoing discussions between Possibilities and the mill owner.

      To the extent the defendant argues that the Commonwealth failed to prove intent, that argument is likewise unavailing. Within weeks of Morrison's paying the deposits, the defendant transferred the money out of the Possibilities client escrow account and used it to finance the project. This was sufficient to prove that the defendant intended for Morrison to rely on the false statement. See Kiernan, 348 Mass. at 46-47.


text:
    In the MATTER OF G.M.
    17-P-855
    Appeals Court of Massachusetts.
    Entered: January 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The petitioner appeals from a decree of the Probate and Family Court denying his request for entry of special findings needed to apply for special immigrant juvenile (SIJ) status pursuant to 8 U.S.C. § 1101(a)(27)(J) (2012). We reverse and remand.

1. Background. The petitioner was born in June, 1998, in El Salvador and currently resides with his cousin in Chelsea. On December 4, 2015, a Probate and Family Court judge issued a guardianship decree appointing the petitioner's cousin as his guardian until he reached the age of eighteen. In the same decree, the judge declined to issue special findings the petitioner sought in order to apply for SIJ status because he failed to make a sufficient showing of eligibility.

In June, 2016, the petitioner filed a motion to amend judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), again seeking special findings and to have the guardianship decree extended to the age of twenty-one. The register of probate rejected the motion on the grounds that the guardianship decree expired when the juvenile attained the age of eighteen, but instructed him to file a complaint in equity seeking special findings in accordance with G. L. c. 215, § 6. The petitioner filed a "petition in equity and request for declaratory relief and special findings," supported by a written report from Anne Marie Wamba, a licensed marriage and family therapist, who evaluated the petitioner after the guardianship decree was issued. In essence, Wamba found that the petitioner exhibited symptoms of generalized anxiety disorder and posttraumatic stress disorder related to his experiences in El Salvador.

In the judge's December 27, 2016, decree and findings on the petitioner's petition in equity, the judge issued findings in consideration of the first and third prongs of the SIJ statute, finding that (1) the petitioner is dependent on the Probate and Family Court, and (2) it was in his best interests to remain in the United States with his cousin, rather than be returned to El Salvador. However, relative to the second prong, the judge rejected the petitioner's contention that Wamba's report constituted newly discovered evidence. The judge stated:

"The Court previously declined to enter a special finding of abandonment or neglect by [the petitioner's] parents after considering in its totality all of the relevant proffered evidence and the reasonable inferences to be drawn therefrom .... The relevant facts and circumstances presented ... in this equity action are substantially the same as those presented at the guardianship hearing. This issue is res judicata."

2. Discussion. "[T]he Probate and Family Court has jurisdiction, under its broad equity power, over youth between the ages of eighteen and twenty-one for the specific purpose of making the special findings necessary to apply for SIJ status." Recinos v. Escobar, 473 Mass. 734, 739 (2016). "Acting within the limits of this fact-finding role, the judge must make the special findings even if he or she suspects that the immigrant child seeks SIJ status for a reason other than relief from neglect, abuse, or abandonment." Guardianship of Penate, 477 Mass. 268, 275 (2017).

Under these circumstances, the issuance of Wamba's report is enough to warrant the judge's reconsideration of the petitioner's request for special findings within the court's equity jurisdiction. We reverse the December 27, 2016, decree and remand this matter to the Probate and Family Court for the judge to conduct an evidentiary hearing. Following the hearing, the judge shall issue new findings on the three prongs of the SIJ statute, as well as credibility determinations as to the witnesses who testified. See ibid.

So ordered.

Reversed.

      To be eligible for SIJ status, a juvenile immigrant must establish that (1) he has been declared dependent on the Probate and Family Court; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) return to the juvenile immigrant's country of origin would not be in his best interests. See 8 U.S.C. § 1101(a)(27)(J) (2012). In appropriate cases where the juvenile immigrant makes a proper showing, a Probate and Family Court judge may enter special findings for the juvenile immigrant to become eligible for SIJ status. These special findings are a first step toward, not a final determination of, SIJ status. Recinos v. Escobar, 473 Mass. 734, 738 (2016).

      After considering all of the relevant evidence proffered by the petitioner, and the reasonable inferences to be drawn therefrom, the judge found that the petitioner's mother had not abandoned or neglected the petitioner. The judge also found that although the petitioner's father may have been "heavy handed" in his discipline of the petitioner, the petitioner may not have been acting with the "level of responsibility and respect" expected by his father. Finally, the judge also found that both parents consented to the petitioner remaining in the United States under the guardianship because it was in the best interests of their son.

      In response to the petitioner's petition, the judge requested a memorandum of law as to why the petition in equity should not be dismissed on res judicata grounds, which the petitioner filed.

      Given our resolution of this matter, we need not resolve the question whether it was error for the judge to apply res judicata in the circumstances presented by this case.


text:
    COMMONWEALTH v. Antonio GARCIA.
    16-P-1548
    Appeals Court of Massachusetts.
    Entered: January 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his convictions, after a jury trial, of one count of rape of a child with force, G. L. c. 265, § 22A ; five counts of aggravated rape of a child, G. L. c. 265, § 23A ; and three counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. We affirm.

1. Indecent assault and battery (buttocks). The defendant contends that, due both to insufficiency of the evidence and to prejudicial error in the jury instructions, his conviction of indecent assault and battery based on touching the victim's buttocks was duplicative of two of his aggravated rape convictions (digital-anal and penile-anal). We disagree.

As to sufficiency, the victim (who was eleven years old at the time of trial) testified that the defendant "would put his finger on my-on my bum." The prosecutor asked, "What would he do with his hands when he touched your bum? Can you describe that for us?" The victim responded by making a rubbing motion with her hands. The prosecutor then asked, "Was there anything else [emphasis supplied] that he did with your bum?" The victim responded by describing the defendant putting both his finger and his "front private" inside her "bum." "Viewing the evidence in the light most favorable to the Commonwealth," this was sufficient "[t]o support a conviction of indecent assault and battery ... [based on] separate and distinct acts from the acts constituting the crime of rape," or in this case, aggravated anal rapes. Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 325 (1999).

As to the jury instructions, the defendant's argument begins with the settled principles that indecent assault and battery on a child under fourteen is a lesser included offense of aggravated rape of a child under sixteen, see Commonwealth v. Suero, 465 Mass. 215, 219 (2013), and that "[c]onvictions of both greater and lesser included acts are permitted only where they 'rest on separate and distinct acts.' " Ibid., quoting from Commonwealth v. Grouse, 461 Mass 787, 798 (2012). In this case, the defendant argues, and the Commonwealth does not dispute, that the judge was required to instruct the jury that, to convict the defendant of both offenses, they must find that he "committed separate and distinct criminal acts." Commonwealth v. Traylor, 472 Mass. 260, 274 (2015), quoting from Commonwealth v. Kelly, 470 Mass. 682, 700 (2015). If the judge did not do so, "the test ... is not whether there was sufficient evidence to support multiple convictions, but whether there is any significant possibility that the multiple convictions were based on the same act." Id. at 276-277.

Here, the judge instructed the jury that "he's been charged with ten separate and distinct offenses[,]" and "[y]ou must consider each of these offenses, each charge and the evidence pertaining to each offense separately." The judge gave similar instructions regarding separate consideration of the five aggravated rape charges and of the three indecent assault and battery charges. The judge also explained to the jury that they would be provided with a verdict slip for each charge, with each slip describing specific conduct. Insofar as pertinent here, the judge explained that one aggravated rape slip would specify "finger into anus," another would specify "penis into anus," and one of the indecent assault and battery slips would specify "hands on buttocks." Such slips were provided, and the jury marked the line for "guilty" on each of them. Also, the victim's testimony, which the jury plainly credited, clearly described the defendant's rubbing of her buttocks as separate from the digital-anal and penile-anal rapes. In these circumstances, we see no "significant possibility" that the indecent assault and battery conviction for touching the buttocks was based on the same conduct as-i.e., duplicative of-either of the anal rape convictions. See Traylor, 472 Mass. at 275, quoting from Kelly, 470 Mass. at 700.

2. Aggravated rape (digital-genital). The defendant argues that the Commonwealth failed to present sufficient evidence to support the conviction of aggravated rape alleging digital penetration of the victim's genital opening. We disagree.

"[E]vidence of penetration [is] necessary to prove the acts of rape charged ... in order to differentiate those acts from other prohibited sexual touchings ...." Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 787 (1989). "Penetration can be inferred from circumstantial evidence." Commonwealth v. Fowler, 431 Mass. 30, 33 (2000). "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." Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). "We do not require victims to describe with scientific accuracy parts of their anatomy or for children to possess vocabulary and habits of precision that many adults do not command." Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 914 (1997) (seven year old victim's testimony that defendant "licked her pee-pee" permitted jury "to infer the degree of penetration necessary to constitute rape, namely, touching of the vulva or labia").

Viewed in the light most favorable to the Commonwealth, the victim's testimony that the defendant touched the "outside" of her "front private part," that he would "rub it," and that it was "painful," was sufficient for the jury to find that the defendant touched "the victim's vagina, vulva, or labia." Centeno, 87 Mass. App. Ct. at 567. See Commonwealth v. Aviles, 58 Mass. App. Ct. 459, 468 (2003) (based on victim's testimony that defendant had touched her vaginal area with his finger, "[i]n the light most favorable to the Commonwealth, and in the context of the entire direct examination, the jurors could have found, beyond a reasonable doubt, that the defendant touched [the victim's] vagina, vulva, or labia"). Here, based on the victim's testimony, the "jury were entitled to infer the degree of penetration necessary to constitute rape." Moniz, 43 Mass. App. Ct. at 914. See Fowler, 431 Mass. 30, 33-34.

3. Improper closing argument. The defendant argues that the Commonwealth's closing argument was improper in three respects. Because the defendant did not object at trial, we review for whether the argument created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 20 (1999). We see no error, let alone one creating such a risk.

a. Improper vouching. We reject the defendant's claim that the prosecutor improperly vouched for the victim's credibility. "Improper vouching occurs if 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.' " Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting from Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). Here, the statements the defendant cites did not constitute such vouching. Instead, the prosecutor's statements properly "argue[d] from the evidence why a witness should be believed." Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28 (2016), quoting from Commonwealth v. Raymond, 424 Mass. 382, 301 (1997). The statements were "within the prosecutor's right of retaliatory reply" because she made them in response to the defendant's argument that the victim should not be believed. Kee, 449 Mass. at 560, quoting from Commonwealth v. LeFave, 407 Mass. 927, 939 (1990).

b. No reason to lie. We also reject the defendant's contention that certain of the prosecutor's statements amounted to a suggestion that the victim "had no reason to lie" and thus were improper under Commonwealth v. Beaudry, 445 Mass. 577 (2005). Beaudry does not, as the defendant claims, hold it improper to argue that an alleged victim has no reason to lie. Instead, Beaudry says it is improper to argue that a witness should be believed simply because she came to court to testify. Id. at 587-588. Here the Commonwealth made no such argument.

What the defendant actually challenges here are not statements that the victim had no reason to lie, but two rhetorical questions by the prosecutor in response to the defendant's attacks on the victim's credibility. The first such question was: "Does [the victim] strike you as somebody that is particularly sophisticated to concoct an elaborate lie that lasts not just for a little while but years, years of that?" The second was: "[It's been] suggested by the defendant that this was concocted, this was made up. Why? Why? Would she make this up? Why would she fabricate this? Because mom wanted him out of the house?" As stated in Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28 (2016), there is no rule barring a prosecutor from "asking the rhetorical question, 'What possible motive does [the witness] have to come in here and lie to you?' 'A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs ....' " Ibid., quoting from Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). The defendant does not argue that those standards were violated here.

c. Burden-shifting. Finally, we disagree with the defendant that the prosecutor used rhetorical questions to shift the burden of proof onto the defendant. Although such a tactic would be improper, see Commonwealth v. Habarek, 402 Mass. 105, 111 (1988), not all rhetorical questions shift the burden of proof. See Mass. G. Evid. § 1113(b)(3)(E), and note at 438 (2017). The two questions the defendant challenges here, quoted above, merely responded to attacks on the victim's credibility, without "improperly shift[ing] the burden of proof [or] comment[ing] on the defendant's silence." Commonwealth v. Nelson, 468 Mass. 1, 12 (2014).

Judgments affirmed.

      At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty on one of two counts of breaking and entering in the nighttime with intent to commit a felony, G. L. c. 266, § 16. The jury returned a not guilty verdict on the remaining count.

      Although these claims of error were unpreserved, "we will reverse a duplicative conviction" and "proceed to the merits" of the defendant's claims. Commonwealth v. Traylor, 472 Mass. 260, 267 (2015).

      Although Traylor involved multiple, potentially duplicative charges of the same offense, see ibid., rather than an offense and a lesser included offense, we accept for present purposes the parties' shared view that Traylor's principles govern.

      The judge instructed that "for each of these separate charges of aggravated rape of a child, you have to look at each of them separately, each of the five counts separately." With respect to the three counts of indecent assault and battery, the judge instructed, "you have to focus on whether or not the prosecutor has proven the conduct as well as all the elements for indecent assault and battery," including "in one instance that the [defendant] put his hand or hands on her buttocks. In the second instance, that he put his finger or fingers on her genital opening. The third is that he put [the victim's] hand on his penis."

      The defendant challenges the prosecutor's (1) references to the victim's "family secret" as a reason why the victim may not have divulged the sexual abuse over the years; and (2) argument that "you might want to cut [the victim] a little slack, maybe a little. She's trying to remember things that happened years ago, some pretty bad things. Some pretty bad things."

      Beaudry does quote in dictum the statement in Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10 (2000), that "[t]elling the jury that the victims have no reason to lie is over the line of permissible advocacy ...." Beaudry, 445 Mass. at 587. More recently, however, the court has found nothing improper in a prosecutor's argument that witnesses had no motive to lie, where the defendant's closing had attacked those witnesses' credibility. See Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). See also Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 & n.5 (2008) ; Mass. G. Evid. § 1113(b)(3)(C), and note at 436 (2017).