A three-judge panel of the Appeals Court on Sept. 15, 2025, heard oral argument in Commonwealth v. Ortega over whether admission of extensive uncharged "bad acts" testimony without a jury limiting instruction created a substantial risk of miscarriage of justice.

The defense, represented by Attorney Andrew Power, told the panel the trial judge failed to give a requested limiting instruction on other-bad-act testimony and that omission was prejudicial given the volume of testimony alleging repeated abuse. "The failure to give the bad act instruction really caused the substantial risk of miscarriage of justice in this case," Power said.

The heart of Power's appeal is a Randolph claim — the standard for review of waived trial errors — arguing four elements: error, prejudice, material influence on the verdict, and that counsel's failure to secure the instruction was not strategic. Power told the court the trial judge had said some of the testimony was admissible for limited purposes but that the promised limiting instruction was not given.

Power described the volume of uncharged allegations the victim (identified in the record as "RM") testified about: he alleged assaults "two to three times per week for four to six years" and initially named about a dozen other youths, with the Commonwealth narrowing that list to eight names. Defense counsel said trial counsel located three of seven individuals the Commonwealth identified, that defense post-conviction investigation located one more, and that some interviews the defense reviewed contradicted RM's allegations. "None were corroborated," Power said of the uncharged allegations he described as "toxic" absent an instruction limiting jury use.

Commonwealth Attorney Kenneth Steinfeld opposed reversal. He told the panel the jury was discerning and that one count (indecent assault and battery on a person aged 14 or over) resulted in a not-guilty verdict, which, he argued, showed the jury did not simply accept all of the victim's testimony wholesale. "Had they been overwhelmed by all of this bad act evidence, they would have found [the defendant] guilty on the indecent-over as well as the indecent-under," Steinfeld said. He argued defense counsel made a reasonable trial decision to present witnesses who would deny the alleged conduct.

The panel questioned whether the absence of a limiting instruction could have materially influenced the jury's credibility findings — for example, by allowing jurors to infer a propensity to commit the charged offenses from the volume of uncharged allegations — or whether defense counsel's strategy of presenting witnesses to impeach the victim rendered the instruction less consequential.

Power also raised post-conviction claims: he asked the court to consider whether a trial judge abused discretion in denying a motion for new trial (a decision Power described on the record as denying his client's motion) and whether newly located witness information and undisclosed interactions between the victim and prosecutors warranted further proceedings. The Commonwealth disputed those factual premises, describing some of the defense assertions as speculative and contending that defense counsel had discovery the defense could have used pretrial.

On a separate point, the Commonwealth represented to the panel that an open-and-gross-lewdness count is barred by the statute of limitations and that it will not seek to refile that charge. "It is barred by the statute of limitations and no process entered. We're not gonna stand up in the superior court and say we will go no further and then change our minds later," Steinfeld said.

The court did not issue a decision at the hearing. The panel recessed to reconstitute and did not announce a ruling on any of the appellate issues during the session.

Background: The appeal focuses on a multi-count conviction arising from allegations the victim described in detail at trial; the defense contends the introduction of extensive uncharged allegations without a limiting instruction incorrectly allowed the jury to consider the evidence for propensity. The appeal also raises questions about whether the defense's trial choices were strategic and whether post-conviction evidence warrants a new trial or further development on remand.

No final decision was stated on the record during the Sept. 15 argument; the court will issue a written opinion at a later date.