Commonwealth v. Coates , 89 Mass. App. Ct. 728 ( 2016 )

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14-P-1547 Appeals Court
COMMONWEALTH vs. RYAN COATES.
No. 14-P-1547.
Bristol. March 9, 2016. - July 15, 2016.
Present: Cypher, Cohen, & Neyman, JJ.
Indecent Assault and Battery. Obscenity, Dissemination of
matter harmful to minor. Practice, Criminal, Required
finding, Identification of defendant in courtroom.
Evidence, Identification, Expert opinion, Relevancy and
materiality. Witness, Expert. Identification. Internet.
Indictments found and returned in the Superior Court
Department on June 21, 2012 and August 9, 2012.
The cases were tried before D. Lloyd Macdonald, J.
Alexei Tymoczko for the defendant.
Shoshana Stern, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. A jury convicted the defendant, Ryan Coates, of
three counts of indecent assault and battery on a child under
the age of fourteen, see G. L. c. 265, § 13B, and one count of
disseminating matter harmful to a minor, see G. L. c. 272, § 28.
On appeal, the defendant argues that the judge erred in
2
excluding expert testimony that the defendant's personality was
inconsistent with the profile of a sex abuser, the
Commonwealth's graphic description of pornography was unduly
prejudicial and created a substantial risk of a miscarriage of
justice, and the Commonwealth presented insufficient evidence of
identity to support the conclusion beyond a reasonable doubt
that the defendant was the person who committed the indecent
assaults and batteries.1 Finding no merit in the defendant's
assertions, we affirm.
Background. We summarize the facts that the jury could
have found, reserving some details for later discussion of the
issues raised by the defendant.
The victim, A.E., was five years old at the time of trial.
When A.E. was two years old, the defendant, who was her mother's
boy friend, moved in with her and her mother. The defendant was
regarded as a father figure to A.E.; the three ate meals
together and went on family outings; and the defendant shared
parenting duties with A.E.'s mother, putting A.E. to bed at
night, picking her up from day care, assisting in her toilet
training, and babysitting her when her mother was not at home.
Sometime between December, 2009, and May, 2012, before A.E.
was toilet trained, the defendant began to sexually assault her.
1
The defendant asserts also that his trial counsel was
ineffective for failing to object to the only evidence of the
identity of the defendant as the perpetrator.
3
On occasions when A.E.'s mother was not at home, the defendant
touched A.E.'s anus with his penis and stood behind her, rocking
back and forth.2 These incidents took place multiple times and
at different locations in the house, "[s]ometimes upstairs" in
the mother's bedroom, "and sometimes in the living room." On
one occasion, A.E. sat on the couch in the living room with the
defendant and watched a video recording on the computer showing
a naked man "massaging" a naked woman with his penis. After
watching the recording, the defendant performed the same acts on
A.E. On another occasion, as A.E. lay on her mother's bed
watching television, the defendant tucked a pillow under her
chin and then stood behind her, "[g]oing back and forth," with
his hands placed "[o]n [her] bum." A.E. later told her mother
that "her bum was all sticky and she didn't like it and [the
defendant] had to wipe her." A.E. testified that the
defendant's "massaging" hurt her and made her sad, and that she
cried and told him to stop.
2
Evidence conflicted as to whether penetration occurred.
On the stand, A.E. testified that the defendant's penis was
inside her anus. However, in the forensic interview, the
recording of which was not made part of the appellate record,
A.E. said that the defendant's penis was on the outside. In
addition, the examining physician found no physical evidence of
trauma. This factual ambiguity may be reflected in the jury's
determination that the defendant was guilty of the lesser
included offense of indecent assault and battery on a child
under the age of fourteen.
4
When A.E. was four years old, she reported the abuse to her
mother, who testified at trial as the first complaint witness.
According to the mother's testimony, on May 9, 2012, after she
congratulated her daughter for using the toilet and wiping
herself, A.E. responded, "[The defendant] would be proud of me,"
and proceeded to tell her mother that "[the defendant] massaged
[her] bum with his pee-pee to get the poop out." To illustrate,
A.E. made a humping motion and said, "One time [her] bum hit his
stomach." After hearing A.E.'s account, her mother took her
over to a friend's house to spend the night away from the
defendant. The following day, A.E.'s mother told the defendant
to leave the family's home, and A.E. did not see the defendant
again until more than one year later, on the day of trial.
Sufficiency of identity evidence. The defendant argues
that there was insufficient evidence of his identity as the
assailant to support his conviction of the three counts of
indecent assault and battery. We review any error for a
substantial risk of miscarriage of justice. Commonwealth v.
Doty, 88 Mass. App. Ct. 195, 198 (2015).
On a claim of insufficient evidence, we review the evidence
in the light most favorable to the Commonwealth to determine
whether a rational juror could find all of the elements of the
charged offense beyond a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial
5
evidence is competent to establish guilt beyond a reasonable
doubt." Commonwealth v. Murphy, 70 Mass. App. Ct. 774, 777
(2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533
(1989). "An inference drawn from circumstantial evidence 'need
only be reasonable and possible; it need not be necessary or
inescapable.'" Ibid., quoting from Commonwealth v. Merola,
supra. "Circumstantial evidence may be coupled with 'inferences
drawn therefrom that appear reasonable and not overly remote' to
establish guilt." Commonwealth v. Tavares, 87 Mass. App. Ct.
471, 473 (2015), quoting from Commonwealth v. Dussault, 71 Mass.
App. Ct. 542, 546 (2008).
The defendant's sufficiency challenge is based on A.E.'s
failure to identify the defendant in the court room as the
person about whose indecent assault and battery she was
testifying.3 The Commonwealth was required to prove that the
defendant, Ryan Coates, was the same Ryan named by A.E. as her
assailant. See Commonwealth v. Koney, 421 Mass. 295, 301-302
(1995). "[B]ald identity of name without confirmatory facts or
3
There was evidence that A.E. was five years old at the
time of trial, that one year had passed since she last saw the
defendant, that the defendant wore a beard when he lived with
A.E. and her mother, and that he appeared at trial clean-shaven.
The jury were entitled to consider A.E.'s failure to identify
the defendant in their assessment of her credibility, and
reasonably could have inferred that her inability to provide an
in-court identification did not preclude the defendant's
identity as the assailant. See Commonwealth v. Johnson, 470
Mass. 389, 396 (2015).
6
circumstances is insufficient to prove identity of person."
Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979).
"Although very slight evidence might have been enough, at least
something more than identity of names was necessary." Lodge v.
Congress Taxi Assn., 340 Mass. 570, 575 (1960).
The evidence showed that "Ryan" lived with A.E. and her
mother, watched A.E. when her mother was out, helped A.E. with
her toilet training, and moved out after A.E. reported the abuse
to her mother. The defendant himself later testified and
acknowledged that he lived with A.E. and her mother during the
time period of the alleged abuse, babysat A.E. when her mother
was not home, participated in A.E.'s toilet training, and moved
out of the family's home after A.E.'s mother confronted him with
the allegations of abuse. Furthermore, the defendant's
description of putting A.E. to bed in her mother's bedroom,
where he gave her a pillow and allowed her to watch television,
corresponded to A.E.'s account of the circumstances surrounding
an instance of abuse. "It is not necessary that any one witness
should distinctly swear that the defendant was the man, if the
result of all the testimony, on comparison of all its details
and particulars, should identify him as the offender."
Commonwealth v. Doe, supra at 300, quoting from Commonwealth v.
Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979).
7
Presented with this circumstantial evidence, the jury could
draw the inferences necessary to determine the identity of the
defendant beyond a reasonable doubt.4 Commonwealth v. Tavares,
87 Mass. App. Ct. at 475 (circumstantial evidence sufficed to
prove identity).
Exclusion of defendant's profile evidence. The defendant
claims that the judge abused his discretion by excluding from
evidence Dr. Fabian Saleh's expert opinion that the defendant
did not fit the profile of a pedophile. The defendant raised
his claim of error at a motion in limine hearing and again at
trial, preserving the issue for appeal under the prejudicial
error standard. Commonwealth v. Deloney, 59 Mass. App. Ct. 47,
54 (2003).
Prior to trial, Dr. Saleh met with the defendant for six
and one-half hours, interviewed him, reviewed his medical
records and police reports, and gave him questionnaires designed
to test his psychosexual predilections. After evaluating the
defendant, the doctor concluded that he did not fit the profile
of a pedophilic sex offender. Dr. Saleh also reviewed a
recording of the Sexual Abuse Intervention Network (SAIN)
4
In light of our determination that evidence independent of
the Sexual Abuse Intervention Network forensic interview, which
was not included in the appellate record, sufficed to support
the verdicts, we need not decide whether the unchallenged
introduction of the interview was error, nor whether the
defendant's trial counsel was ineffective for his failure to
challenge its admission.
8
forensic interview of A.E. At trial, the doctor testified that
the SAIN interview was compromised by suggestive conduct on the
part of the interviewer toward A.E.
Following a hearing on motions in limine, the judge ruled
that Dr. Saleh's testimony concerning the psychosexual profile
of the defendant was inadmissible.5 Citing Commonwealth v. Day,
409 Mass. 719 (1991), and Commonwealth v. Trowbridge, 36 Mass.
App. Ct. 734 (1994), S.C., 419 Mass. 750 (1995), the judge held
that "the use of criminal profiles as substantive evidence is
inherently prejudicial. It substitutes generality for
specificity and preconceptions for evidence."
"The admission of [expert testimony] is largely within the
discretion of the trial judge and he will be reversed only where
the admission constitutes an abuse of discretion or error of
law." Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539
(2012), quoting from Commonwealth v. Johnson, 410 Mass. 199, 202
(1991). "[A] judge's discretionary decision constitutes an
abuse of discretion where we conclude the judge made 'a clear
5
Despite the judge's decision to preclude the profile
testimony, Dr. Saleh testified on cross-examination that
"[p]edophilic sex offender doesn't just -- it doesn't happen in
one day, it doesn't occur overnight. You have to have behaviors
and antecedents suggesting pedophilic interest. There's nothing
whatsoever in this case." The judge overruled the
Commonwealth's objection to the statement and defense counsel
reiterated the doctor's conclusion ("I see no evidence of
pedophilia in this man") twice during closing argument.
Consequently, the defendant received more than he was entitled
to under our law of evidence.
9
error of judgment in weighing' the factors relevant to the
decision, . . . such that the decision falls outside the range
of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014).
Here, the judge exercised sound discretion and based his
decision to exclude the criminal profile testimony of Dr. Saleh
on a correct interpretation of our law of evidence. Cf.
Commonwealth v. Kulesa, 455 Mass. 447, 455 (2009) (decision
based on erroneous interpretation of law was not exercise of
discretion).
Although the defendant characterizes the admissibility of
the evidence proffered in this case as an issue of first
impression in Massachusetts, acknowledged but passed over by the
Supreme Judicial Court in Commonwealth v. Trowbridge, 419 Mass.
at 756-757, we find that our law of evidence is sufficiently
well developed that the trial judge could, and did, draw upon
clear authority to determine that profile evidence is
inadmissible. In Commonwealth v. Federico, 425 Mass. 844, 850
(1997), the Supreme Judicial Court provided guidance for the use
of expert testimony in the context of sex abuse cases and, in
language apposite to this case, the court held that "with
respect to the accused, the expert may not provide profiles or
testify as to the typical attributes or characteristics of the
perpetrators of child abuse."
10
The prohibition against profile testimony arises from the
court's recognition that such evidence is fundamentally
irrelevant. "A criminal trial is by its very nature an
individualized adjudication of a defendant's guilt or legal
innocence. Testimony regarding a criminal profile is nothing
more than an expert's opinion as to certain characteristics
which are common to some or most of the individuals who commit
particular crimes." Commonwealth v. Day, 409 Mass. at 723.
"[T]he mere fact that a defendant fits the profile does not tend
to prove that [he committed the crime charged]." Commonwealth
v. Caraballo, 81 Mass. App. Ct. at 539, quoting from
Commonwealth v. Frias, 47 Mass. App. Ct. 293, 296 (1999).6
That the evidence in this case was proffered in the form of
a "negative" profile -- whereby the defendant sought to
demonstrate that he did not fit the profile of a sex abuser --
does not compel a different result. Although the profile was
offered to show that the defendant did not fit the type, the
6
Courts in other states have followed similar reasoning in
holding profile evidence inadmissible on the ground of
irrelevance, as reflected in the cases collected by the Supreme
Judicial Court in Commonwealth v. Day, supra (citing "State v.
Brown, 370 So. 2d 547, 554 [La. 1979] [drug courier profile
'does not tend to prove that this defendant is guilty of the
offense charged, nor does it explain any relevant fact with
regard to guilt or innocence']; Duley v. State, 56 Md. App. 275,
281 [1983] [child battering profile 'totally irrelevant because
it does not tend to prove that (the defendant) committed the
acts of abuse attributed to him']; State v. Maule, 35 Wash. App.
287, 293 [1983] ['"relevancy of (such) evidence is not
discernible']).
11
effect is ultimately identical. Implicit in the defendant's
assertion that he does not match a criminal profile is the
assumption that such a profile would be probative if introduced
to prove that someone who matched the profile would be more
likely to have committed the crimes. Our cases instruct
otherwise. See Commonwealth v. Day, supra (evidence concerning
a "child battering profile" does not meet relevancy test);
Commonwealth v. Poitras, 55 Mass. App. Ct. 691, 694 (2002)
("admission of [profile] testimony . . . has been condemned by
the appellate courts of this Commonwealth as error, especially
where the particular characteristics the expert testified to
could be taken by the jury to identify the defendant as fitting
the profile and therefore more likely than not to have committed
the crime"); Commonwealth v. Deloney, 59 Mass. App. Ct. at 57
("It is a fundamental principle of our system of criminal
justice that we do not convict people of crimes on the basis of
statistics or models"); Commonwealth v. Caraballo, supra
(criminal profile evidence "does not tend to prove that [the
defendant committed the crime charged]"); Commonwealth v. Aspen,
85 Mass. App. Ct. 278, 285 (2014) (appellate counsel ineffective
for failing to raise erroneous admission of profile testimony).
The defendant likens the criminal profile testimony to
character evidence, and argues that, as with a reputation for
good character, the proffered profile evidence should be
12
permitted to establish a pertinent character trait: that the
defendant is not a pedophile, and that he therefore is less
likely to have sexually abused A.E. According to time-honored
practice, a defendant is entitled to introduce evidence of his
own good character to establish that he is not the type of
person to commit the charged offense. The rule rests on the
premise that "[a] man of good character is unlikely to be guilty
of a crime involving moral turpitude." Commonwealth v. Nagle,
157 Mass. 554, 554 (1893). See generally Mass. G. Evid.
§ 404(a) note (2016). In urging the court to adopt his analogy,
the defendant elides an essential distinction between
permissible character evidence and impermissible profile
evidence. "Character is a generalized description of one's
disposition, or of one's disposition in respect to a general
trait, such as honesty, temperance, or peacefulness."
Commonwealth v. Bonds, 445 Mass. 821, 829 (2006), quoting from
Figueiredo v. Hamill, 385 Mass. 1003, 1004 (1982). By contrast,
criminal profile evidence is a composite of "certain
characteristics which are common to some or most of the
individuals who commit particular crimes." Commonwealth v.
Caraballo, supra, quoting from Commonwealth v. Frias, 47 Mass.
App. Ct. at 296. In other words, character evidence pertains to
traits that are personal to the defendant; profile evidence
consists of characteristics exhibited by other people who have
13
been convicted of a similar crime. In an individualized
adjudication, evidence of characteristics common to others is
not probative of the defendant's guilt or innocence.
Similar to his argument concerning character evidence, the
defendant contends that the proffered criminal profile evidence
is analogous to the psychiatric evidence that is routinely
admitted in other proceedings, and should likewise be deemed
admissible here. We find that the procedural contexts to which
the defendant refers are distinguishable from the present case.
Psychiatric evidence adduced to assess whether a defendant
is competent to stand trial or is criminally responsible for an
alleged crime serves distinct functions. "An examination to
determine competency has a 'limited, neutral purpose.' . . .
[It] does not bear on the defendant's guilt, but on his or her
current ability to understand the proceedings and participate in
the defense." Vuthy Seng v. Commonwealth, 445 Mass. 536, 545
(2005). A defendant seeking to assert lack of criminal
responsibility may offer "a psychiatric inquiry into the
existence or nonexistence of a mental disease or a defect, which
may preclude a defendant from being criminally responsible for
his actions. The primary diagnostic source in such a situation
often is that which the examiner may glean from the nature and
content of the defendant's statements." Blaisdell v.
Commonwealth, 372 Mass. 753, 759-760 (1977). See G. L. c. 123,
14
§ 15(a). The results of these psychiatric examinations address
only the defendant's own mental condition, which profile
evidence is useless in assessing.
Psychiatric profile evidence is admissible in the context
of sexual dangerousness hearings, sex offender registration
hearings, and involuntary commitment hearings, as a means of
predicting a defendant's conduct. "[W]hether a person suffers
from a mental abnormality or personality defect, as well as the
predictive behavioral question of the likelihood that a person
suffering from such a condition will commit a sexual offense,
are matters beyond the range of ordinary experience and require
expert testimony" (emphasis supplied). Commonwealth v. Boyer,
61 Mass. App. Ct. 582, 587-588 (2004) (sexual dangerousness
hearing), quoting from Commonwealth v. Bruno, 432 Mass. 489, 511
(2000). The determination whether a defendant poses a
substantial risk of physical harm to other persons is implicitly
a statement of probability. Commonwealth v. Nassar, 380 Mass.
908, 916 (1980) (involuntary commitment hearing). "Factors
relevant to the risk of reoffense shall include, but not be
limited to . . . (f) whether psychological or psychiatric
profiles indicate a risk of recidivism." G. L. c. 6, § 178K(1),
as appearing in St. 1999, c. 74, § 2 (sex offender registry
board guidelines). Employed for the purpose of prognostication,
a psychiatric profile may aid in assessing the likelihood that a
15
person will someday pose a danger to himself or to others. As
we stated supra, however, a profile cannot be used to prove that
a defendant performed or did not perform some alleged wrong in
the past.
Even if we were to deem the criminal profile evidence
relevant, the defendant has not met the foundational
requirements necessary for a determination that the expert
opinion is scientifically valid.7 See Commonwealth v. Barbosa,
457 Mass. 773, 783 (2010) (setting forth foundational
requirements for expert testimony). As we noted in Commonwealth
v. Trowbridge, 36 Mass. App. Ct. at 741 (reversed on other
grounds), numerous authorities preclude such expert testimony
because the theory underlying the opinion has not been shown to
be reliable. Commonwealth v. Lanigan, 419 Mass. 15, 25-26
(1994). "There is no psychological test that validly detects
persons who have or will sexually abuse children. . . . Thus,
it is appropriate to conclude that there is no profile of a
'typical' child molester." Myers on Evidence of Interpersonal
Violence § 6.28, at 587 (5th ed. 2011), and cases cited. There
was neither error of law nor abuse of discretion in the judge's
7
Because the judge determined that criminal profile
evidence was categorically inadmissible, no Daubert hearing was
held to assess the reliability of the theory underlying the
proffered expert testimony. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993).
16
decision to exclude expert testimony that the defendant did not
match the profile of a pedophile.
Admission of pornographic titles and Internet search terms.
The defendant next argues that the judge abused his discretion
by allowing the Commonwealth to introduce testimony regarding
the titles of pornographic files and the words used in Internet
searches found on a laptop computer used by the defendant. The
defendant contends that the admission of an excessive amount of
inflammatory evidence was error because any relevance it may
have had was outweighed by its undue prejudice. Because the
defendant did not object to the challenged testimony at trial,
we review to determine whether any error created a substantial
risk of a miscarriage of justice. Commonwealth v. Halsey, 41
Mass. App. Ct. 200, 203 (1996).
A laptop computer, owned by A.E.'s mother, was stationed in
the family's living room where the defendant regularly used it.
The defendant was proficient in computer operations, and helped
A.E.'s mother, who described herself as "[c]omputer illiterate,"
to upload photographs onto the device. The defendant also
installed a computer cleaning and optimization program,
CCleaner, which, according to his testimony, he used to wipe the
hard drive at the end of each session.
The defendant and A.E.'s mother both testified that the
defendant watched pornography on the computer often. On two
17
occasions, A.E.'s mother viewed pornography with the defendant;
however, she never accessed pornography herself and expressed
discomfort with the defendant's pornography viewing habit. On
May 6, 2012, suspicious that the defendant had been watching
pornography on the computer while she and A.E. were asleep
upstairs, A.E.'s mother confronted the defendant, who admitted
that he had been viewing pornography. On May 8, 2012, the
defendant activated the CCleaner program at 1:00 P.M., and then
again at 5:00 P.M., deleting more than 2,000 files from the
computer.
After A.E. reported that the defendant had sexually abused
her and had exposed her to pornography, her mother voluntarily
handed over the computer to a police detective, who delivered it
for examination to the digital forensic laboratory (laboratory)
at the Office of the Attorney General. At trial, David
Papargiris, a digital forensic specialist and former director of
the laboratory, testified that he had conducted a forensic
examination of the computer and had recovered approximately
1,400 image files and nineteen video files that he characterized
as pornographic in nature.8 The jury heard that some of those
8
Referring to examples drawn from a report entered in
evidence, Papargiris testified that he found files titled:
"Step-dad fucks stepdaughter part 1," "Step-dad fucks
stepdaughter part 2," "Russian anorexic teen girl fucked by
father-in-law," "Father fucks tiny teen stepdaughter," "Little
cutie Kasey gets her first anal," "Father fucks tiny
18
video files depicted adults engaging in anal sex or contained
references to anal sex in their titles. In addition, Papargiris
testified that he had identified the specific Internet search
terms: "Tiny daughter anal," and "Tiny daughter and mindless
behavior." According to Papargiris, whoever performed the
Internet searches had affirmatively typed in those terms.
"All evidence, including that of a violent or sexual
nature, must meet the threshold test of relevancy."
Commonwealth v. Carey, 463 Mass. 378, 387 (2012). To be
relevant, evidence "must have a 'rational tendency to prove an
issue in the case,'" or "render[] the desired inference more
probable than it would have been without it." Commonwealth v.
Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000), quoting from
Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).
The search terms entered into the computer and the names of
the files that had been selected for viewing were clearly
relevant and probative to establish the defendant's interest in
stepdaughter," "Stepfather fucks his young blonde teen," "Min
dad fucked young teen daughter on table," "Father and daughter
taboo sex," "Daughter Ashlyn . . . Rae seduces mature mom and
old daddy into family taboo sex," "Hot tiny Spanish spinner babe
Lily gets an anal creampie," "German amateur Nikita total anal,"
"Innocent teen girl takes a huge dick up her tiny asshole,"
"Brunette teens get an anal pounding for the first time," "A
cute girl gets anal fucked for the first time," "First anal for
Anime girl," "Young girl blonde first anal," "Tiny daughter
anal," "Skinny young teen does anal," and "Hot young emo teen
gets ass stretched her first anal fuck."
19
committing the crimes charged.9 See Commonwealth v. Wallace, 70
Mass. App. Ct. 757, 764 (2007) ("Evidence of a defendant's
predisposition to commit the crime charged has long been held to
be relevant"). Contrast Commonwealth v. Christie, 89 Mass. App.
Ct. 665, 671-673 (2016) (evidence that defendant, an adult male
homosexual, had interest in viewing depictions of adult males
engaged in generic acts of same-sex intercourse, standing alone,
irrelevant to whether defendant has interest in sexual conduct
with underage boys). To counter the defense theory that someone
other than the defendant had sexually abused A.E., the
Commonwealth properly adduced evidence demonstrating his
interest in sex between a stepfather and his stepdaughter,
thereby tending to prove that the defendant, who could be seen
as A.E.'s stepfather, was the perpetrator of the alleged abuse.
The evidence also served to corroborate A.E.'s testimony. Many
of the titles of the pornographic files and the description of
the video content evince a connection to A.E.'s allegations of
anal intercourse, and the title, "Min dad fucked young teen
daughter on table," explicitly parallels A.E.'s account of the
defendant "massaging" her "bum" while she lay on a living room
table. Furthermore, with regard to the charge of disseminating
pornography to a minor, the challenged evidence substantiated
9
This is so even if the material did not actually depict
children.
20
A.E.'s account of watching a video recording of a man
"massaging" a woman with his penis.
"Nonetheless, to be admissible, the probative value of the
evidence must not be substantially outweighed by its prejudicial
effect." Commonwealth v. Bell, 473 Mass. 131, 144 (2015). See
Mass. G. Evid § 403 (2016). The defendant argues on appeal that
the probative value of the pornographic titles and Internet
searches was outweighed by the risk of undue prejudice and,
specifically, he contends that the evidence was excessive in
quantity and inflammatory in nature. Although the twenty titles
selected by the Commonwealth from the inventory of pornographic
computer files arguably amounted to a substantial quantity of
highly charged evidence, in the circumstances of this case, the
admission did not constitute an abuse of discretion giving rise
to a substantial risk of miscarriage of justice.
The very quantity of files in the computer inventory had
evidentiary value, because it manifested the defendant's
sustained and purposeful interest in the themes of sex, and
particularly anal sex, with young girls, and sex between
stepfathers and stepdaughters, and contradicted the defense
theory that the defendant had no pedophilic interest. See
Commonwealth v. Carey, 463 Mass. at 392 n.18 (quantity of
potentially inflammatory evidence demonstrated depth of
defendant's interest in, and inquiry into, asphyxiation). The
21
substantial quantity of pornography in the inventory also made
it more probable that the files were amassed by someone with
continuous access to the computer, as opposed to one of the
occasional visitors to the home, as the defendant proposed.
Furthermore, the inflammatory potential of the pornographic
material was diminished by the fact that only an inventory of
the titles, and not the images, was submitted to the jury.
Contrast Commonwealth v. Petrillo, 50 Mass. App. Ct. at 106-110
(harmless error to show sixteen minutes of hard-core
pornographic videotape to jury); Commonwealth v. Juandoo, 64
Mass. App. Ct. 56, 61 (2005) (reversible error to admit "a
substantial quantity of pornography," including pornographic
videotapes, seventy-seven pornographic images, and three
pornographic magazines, all of which were provided to jury
during deliberations).
The judge had no duty sua sponte to conduct an analysis to
determine whether the risk of inflaming the jury outweighed the
probative value of the evidence, nor to issue a limiting
instruction. Thus, where admission of the evidence did not
"fall[] outside the range of reasonable alternatives," there was
no abuse of discretion. L.L. v. Commonwealth, 470 Mass. at 185
n.27. Moreover, were we to discern error in the quantity of
references to pornographic titles not specifically pertinent to
the crimes alleged, where the defense raised no objection to the
22
testimony, we discern no risk of a miscarriage of justice. See
Commonwealth v. Halsey, 41 Mass. App. Ct. at 204 (cumulative
evidence presented "little risk of a miscarriage of justice").
Judgments affirmed.