Commonwealth V Efrain Nieves
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-854
COMMONWEALTH
vs.
EFRAIN NIEVES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a District Court trial, a jury found the defendant,
Efrain Nieves, guilty of two counts of indecent assault and
battery on a person fourteen or over, G. L. c. 265, § 13H. The
victim was his stepdaughter, who was sixteen years old at the
time of the offenses. On appeal, the defendant argues that
(1) the judge erred in admitting other bad act evidence
consisting of the victim's testimony that Nieves gave her
marijuana, (2) portions of the prosecutor's closing argument
created a substantial risk of miscarriage of justice, and
(3) trial counsel was ineffective. Seeing no errors, we affirm
the judgments.
1. Prior bad acts. Before the jury were empaneled, and in
response to the defendant's motion in limine, the judge asked
the parties about the purpose of the prosecution's anticipated
evidence that the defendant gave marijuana to the victim. Both
parties agreed that the evidence was relevant to the nature of
the relationship between the defendant and the victim. The
judge specifically asked whether defense counsel objected to the
marijuana testimony, and whether its prejudicial effect
outweighed its probative value. Counsel answered both questions
in the negative. The judge admitted the testimony subject to a
limiting instruction, which she gave once during the victim's
direct testimony and again following closing arguments.
Reversing course on appeal, the defendant argues that the
testimony's unfair prejudicial effect outweighed its probative
value and that its admission created a substantial risk of
miscarriage of justice. A substantial risk of a miscarriage of
justice exists where there is "serious doubt whether the result
of the trial might have been different had the error not been
made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
Evidence of a defendant's prior bad acts is not admissible
to show "bad character or propensity to commit the crime
charged" but may be admitted where relevant for a nonpropensity
purpose, such as to show "a common scheme, pattern of operation,
absence of accident or mistake, identity, intent, or motive."
2
Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass.
G. Evid. § 404(b)(2) (2025). Where a defendant is charged with
sexual assault, "some evidence of uncharged conduct may be
admissible to give the jury a view of the entire relationship
between the defendant and the alleged victim, and the probative
existence of the same passion or emotion at the time in issue"
(quotation and citation omitted). Commonwealth v. Dwyer, 448
Mass. 122, 128-129 (2006). However, such evidence should not be
admitted if its probative value is outweighed by the risk of
unfair prejudice to the defendant. See Commonwealth v. Crayton,
470 Mass. 228, 249 (2014). See also Mass. G. Evid. § 404(b)(2).
As an initial matter, "[t]o be sufficiently probative the
evidence must be connected with the facts of the case or not be
too remote in time." Commonwealth v. Barrett, 418 Mass. 788,
794 (1994). The evidence here met this requirement, because it
showed that the defendant provided marijuana to the same victim,
in the same location (the victim's bedroom), and within the same
timeframe as the charged conduct.
Further, the evidence was relevant to shed light on the
relationship between the defendant and victim. See Commonwealth
v. Nascimento-Depina, 496 Mass. 1, 9 (2025). The victim
testified that the defendant would enter her room, give her
marijuana cartridges (which she smoked using a vape pen), and
talk with her. He brought her the cartridges "often," about
3
biweekly. He sometimes stayed in her room, and they smoked
marijuana together. This context sheds light on the
relationship between the defendant and the victim, especially
where both charged offenses occurred in her bedroom and one
occurred when she was "[v]ery high" from smoking marijuana he
had provided.
The judge's balancing of the probative value and
prejudicial effect of the marijuana testimony is implicit in the
fact that she pressed the Commonwealth on the morning of trial
to identify the purpose and scope of that testimony. See
Commonwealth v. Samia, 492 Mass. 135, 148 (2023). Moreover, she
asked defense counsel if he agreed that the prejudicial effect
did not outweigh the probative value, which he did. "This is
not a case where the judge failed to exercise any discretion by
making no effort at all to scrutinize the contested evidence"
(quotation and citation omitted). Commonwealth v. West, 487
Mass. 794, 807 (2021).
Any risk of unfair prejudice to the defendant was limited.
The uncharged conduct (providing the victim with marijuana) was
quite distinct from the charged conduct, indecent assault and
battery. Thus, the jury were unlikely to confuse them or make
the forbidden inference that, simply because the defendant had
on other occasions engaged in inappropriate conduct by providing
marijuana to his stepdaughter, the defendant must also have
4
engaged in the charged conduct of indecent assault and battery.
See Crayton, 470 Mass. at 251.
Further, the judge, sua sponte, followed the favored
practice of giving "contemporaneous limiting instructions,"
Commonwealth v. Facella, 478 Mass. 393, 402 (2017), and
repeating them in her final charge. See Commonwealth v. Walker,
442 Mass. 185, 202 (2004) (risk of prejudice from prior bad act
testimony "sufficiently ameliorated by the judge's limiting
instructions, given immediately after the testimony and repeated
during the final instructions"). We presume the jury followed
these instructions. Commonwealth v. Donahue, 430 Mass. 710, 718
(2000).
We are unpersuaded by the defendant's argument that the
limiting instructions, rather than mitigating unfair prejudice,
reinforced the Commonwealth's theory that the defendant was
"grooming" the victim. The instructions were in line with the
model jury instruction. See Superior Court Criminal Practice
Jury Instructions § 7.6.2 (2018). They made no specific mention
of grooming, but merely, and accurately, informed the jury that
they were to consider the marijuana testimony only for the
limited purpose of illustrating "the nature of the relationship"
between the parties.
2. Closing argument. The defendant argues that the
prosecutor's closing argument contained two errors. As the
5
defendant did not timely object, we review his claims to
determine whether any errors created a substantial risk of a
miscarriage of justice. See Commonwealth v. Kozec, 399 Mass.
514, 518 n.8 (1987). "[T]he cumulative effect of all the errors
must be considered in the context of the arguments and the case
as a whole" (quotation and citation omitted). Commonwealth v.
Niemic, 472 Mass. 665, 673 (2015), S.C., 483 Mass. 571 (2019).
First, the prosecutor argued that the reason the defendant
had testified inconsistently on how many times he gave the
victim marijuana was that "he knows that that behavior is
strongly incriminating evidence. That was where he was most
evasive because he knows that that behavior shows that he's most
guilty." The defendant contends that this argument is
impermissible under Kozec, 399 Mass. at 523-524. But in Kozec,
supra, the prosecutor unjustifiably asked the jury to draw an
inference of guilt from the defendant's demeanor while merely
sitting in the courtroom, watching a different witness testify.
Here, the prosecutor asked the jury to notice inconsistencies in
the defendant's testimony and infer from them that he was
guilty. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10
(2019) (prosecutor permitted to argue on basis of evidence).
"The weight and credibility of the evidence is the province of
the jury," so determining whether the defendant appeared
credible was squarely within the jury's role, Commonwealth v.
6
Dubois, 451 Mass. 20, 28 (2008), and thus a permissible subject
of argument. We see no error.
Second, the prosecutor argued that the defendant's
escalating behavior with the victim was a part of his plan to
sexually assault her. He stated, the "evidence shows that the
[d]efendant [was] giving [marijuana] to [the victim] to make her
dependent on him for it, to make her less likely to resist or be
able to say no, to addle her judgment."
"And this evidence shows that this was his plan all
along. . . . It starts with the kiss and then the
marijuana dab pen. That then escalates to the touching
around the waistband, when he's still giving her marijuana
at that time in the relationship. And then, finally, it
progresses to him coming in, in the middle of the night,
after she's been smoking marijuana, and penetrating her
vagina. The [d]efendant is pushing at each step of the way
to see what he can get away with, and the marijuana is a
crucial part of that way."
The defendant contends that no such evidence was presented to
the jury. Yet, the victim testified that the defendant provided
her with marijuana. She testified that he asked to kiss her
when they were alone in the car together. She also recounted
that the defendant inappropriately touched her at least twice,
including around her waistband. During the second incident, the
victim was "[v]ery high" on marijuana that she received from the
defendant, which she had smoked the night before. A prosecutor
is permitted to argue for a conviction based on "inferences that
7
may reasonably be drawn from the evidence," and the prosecutor
did so here. Kozec, 399 Mass. at 516. We see no error.
Even if any statement was impermissible, there was no
substantial risk of a miscarriage of justice. The judge gave
general limiting instructions that closing argument is not
evidence, lawyers are not witnesses, and it is the role of the
jury to determine the credibility of the witnesses and the facts
of the case. These instructions served to mitigate potential
prejudice to the defendant. See Commonwealth v. Kapaia, 490
Mass. 787, 803-804 (2022). Accordingly, and after considering
the prosecutor's comments in the context of the entire argument
and the case as a whole, see Niemic, 472 Mass. at 673, we
conclude that any error did not create a substantial risk of a
miscarriage of justice.
3. Ineffective assistance of counsel. The defendant
argues that trial counsel was ineffective in failing to object
to the marijuana testimony and the Commonwealth's closing
argument. To prevail on a claim of ineffective assistance of
counsel, a defendant must establish that counsel's performance
fell "measurably below that which might be expected from an
ordinary fallible lawyer" and "likely deprived the defendant of
an otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The
defendant must show that "better work might have accomplished
8
something material for the defense." Commonwealth v.
Satterfield, 373 Mass. 109, 115 (1977).
A direct appeal on the trial record, such as the defendant
pursues here, is the weakest form of such a challenge, as it
lacks an explanation of counsel's strategy. Commonwealth v.
Peloquin, 437 Mass. 204, 211 n.5 (2002). See Commonwealth v.
Zinser, 446 Mass. 807, 808 n.1 (2006) (preferred route for
ineffective assistance claim is by motion in trial court).
Further, objections to the marijuana testimony and closing
argument would have been futile, as there was no error in
admitting the testimony and permitting the argument, so
counsel's failure to object was not deficient, let alone
manifestly unreasonable. Cf. Commonwealth v. Lally, 473 Mass.
693, 703 n.10 (2016) (counsel not ineffective in failing to file
motion that would have accomplished nothing material for
defense). In short, counsel's performance did not "deprive[]
9
the defendant of an otherwise available, substantial ground of
defence." Saferian, 366 Mass. at 96.
Judgments affirmed.
By the Court (Sacks,
Englander & Walsh, JJ.1),
Clerk
Entered: July 24, 2025.
1 The panelists are listed in order of seniority.
10