Commonwealth v. McDonagh , 480 Mass. 131 ( 2018 )

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SJC-12363
COMMONWEALTH vs. WILLIAM McDONAGH.
Suffolk. January 5, 2018. - July 26, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Rape. Indecent Assault and Battery. Obscenity, Child
pornography. Evidence, Prior misconduct, Obscenity, State
of mind. Practice, Criminal, Argument by prosecutor, State
of mind, Objection.
Indictments found and returned in the Superior Court
Department on September 30, 2014.
The cases were tried before Christine M. Roach, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
John P. Zanini, Assistant District Attorney (Claudia Arno &
Sarah McEvoy, Assistant District Attorneys, also present) for
the Commonwealth.
LOWY, J. In 2014, William McDonagh was convicted on two
indictments charging aggravated statutory rape, in violation of
2
G. L. c. 265, § 23A, and three indictments charging indecent
assault and battery on a child under the age of fourteen, in
violation of G. L. c. 265, § 13B, arising out of instances of
sexual abuse the defendant committed against his minor son.
At issue in this appeal is whether the prosecutor, with
permission from the trial judge, made improper remarks in her
closing argument. The comment at issue concerned the purposes
for which the jury could consider other bad act evidence that
had been properly admitted through a stipulation of the parties
-- specifically, that the defendant had been arrested for, and
admitted to, possession of child pornography. Despite this
evidence having been admitted for certain limited purposes,
including to corroborate the son's testimony that the defendant
showed him child pornography while committing the acts of abuse
at issue, the judge allowed the Commonwealth to argue to the
jury that they could consider the evidence to demonstrate the
defendant's "state of mind," that he was sexually attracted to
children. The defendant argues that this evidence did not show
his state of mind and that, instead, the prosecutor's closing
argument invited the jury to infer that he was sexually
attracted to children and therefore more likely to have
committed the crimes charged. Given that the defendant's state
of mind was not at issue because he denied that the abuse
occurred, the judge erred in allowing the prosecutor to make
3
that argument in closing. See Commonwealth v. Crayton, 470
Mass. 228, 249 & n.27 (2014). However, in light of the
prosecutor's entire closing argument, the evidence presented at
trial, and the judge's limiting instructions, the defendant was
not prejudiced. Accordingly, we affirm the defendant's
convictions.
1. Background. In September, 2014, the defendant was
charged with the five offenses discussed above, as well as on
two indictments of dissemination of obscene matter, in violation
of G. L. c. 272, § 29. Six of the seven charges stemmed from
the defendant's abuse of his minor son, Colin.1 The defendant's
other minor son, Nathan, was the putative victim of one of the
dissemination charges.
The jury heard the following evidence at trial. The
defendant and his three children moved to Massachusetts in 2006.
When the defendant and his children arrived in Massachusetts,
they lived with the defendant's brother in the Hyde Park section
of Boston. In 2009, the defendant and his children moved to
Cambridge, then relocated to the Dorchester section of Boston,
and eventually settled in Hull.
Colin testified that the defendant began sexually abusing
him when the family moved to Cambridge in 2009. The charged
instances of sexual abuse occurred between 2009 and 2010, while
1 Pseudonyms are used for the defendant's children.
4
the defendant and his children were living in Dorchester. Colin
testified that on multiple occasions the defendant touched his
buttocks and penis with his hand and forced him to engage in
oral sex. The defendant, while sexually abusing Colin, showed
him photographs of naked children and adults on nude beaches, as
well as video recordings of adults and children engaging in
sexual activity. Samples of photographs of nude beaches that
were found on the defendant's computer were admitted in
evidence. Colin explained that these images and video
recordings depicted people "having sex," which he described as
"porn." The defendant threatened to knock Colin's teeth out if
he told anyone about the abuse.
Other evidence of the defendant's uncharged conduct toward
his children was also admitted at trial. This evidence
indicated that the defendant had sexually assaulted Colin in two
other counties; showed Colin and Nathan adult and child
pornography; and showed Colin, Nathan, and their sister
photographs of people on nude beaches, telling the children that
he would take them to a nude beach someday.
In October, 2010, the defendant was arrested for possession
of child pornography; he eventually pleaded guilty and was
incarcerated. As discussed in greater detail infra, this
evidence was introduced through a stipulation of the parties and
admitted in evidence by the judge for certain limited purposes.
5
In September, 2012, while the defendant was incarcerated and the
defendant's children were living with his brother, a forensic
interviewer for the Suffolk County district attorney's office
interviewed Colin. During that interview, Colin recounted how
the defendant abused him.2,3 This was the first time Colin
reported that the defendant had sexually abused him.4
The jury returned guilty verdicts on all charges except for
the second indictment charging dissemination of obscene matter,
which was based on the defendant showing nude beach photographs
to Nathan. The defendant appealed to the Appeals Court, which,
in an unpublished memorandum and order pursuant to its rule
1:28, affirmed the convictions of aggravated statutory rape and
indecent assault and battery on a child under fourteen. See
Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109 (2017).5 This
2 The interview was videotaped, and a redacted version of
the tape was shown to the jury at trial. The interviewer also
testified at trial as the first complaint witness.
3 There was some discrepancy as to where the abuse began,
but any such discrepancy is immaterial to the defendant's
appeal.
4 The Department of Children and Families (DCF) had
conducted an investigation following the defendant's arrest for
possession of child pornography in 2010. At that time, Colin
was interviewed by an investigator from DCF. Colin denied
having seen anything inappropriate on his father's computer or
having been touched inappropriately.
5 The Commonwealth conceded in the Appeals Court that the
evidence was insufficient to support the conviction of
dissemination of obscene matter to Colin, and the Appeals Court
6
court granted the defendant's application for further appellate
review.
2. Discussion. It is undisputed that the defendant's
arrest for, and admission to, possession of child pornography
were properly admitted in evidence. However, the defendant
contends that the judge erroneously allowed the Commonwealth to
comment in its closing argument that the jury could consider the
evidence for purposes of demonstrating the defendant's "state of
mind," that he was sexually attracted to children. The
defendant claims that this was an improper propensity argument
because it invited the jury to infer that he was sexually
attracted to children and, therefore, more likely to have
committed the charged crimes. The Commonwealth asserts that the
argument was proper and that, even if it was not, the defendant
failed to preserve the claim for appellate review. Accordingly,
we begin by addressing the threshold issue: whether the
defendant's objection to the Commonwealth's closing argument was
sufficiently precise to preserve the claimed error.
a. The objection. Whether and how certain other bad act
evidence would be admitted in evidence was a prominent and
recurring issue throughout the defendant's trial --
particularly, the defendant's 2010 arrest for, admission to, and
reversed the conviction and dismissed the indictment for that
count. Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109 (2017).
7
conviction of possession of child pornography. Prior to trial,
the Commonwealth moved in limine to admit this evidence. The
defendant had initially moved to exclude it, arguing that the
evidence "would be highly prejudicial" and "show only his
propensity to commit the crime[s] charged." Eventually, the
defendant conceded that the evidence was relevant to corroborate
Colin's testimony that the defendant had shown him child
pornography during the charged incidents of sexual assault.
This evidence was also admissible to show the defendant's
efforts to "groom" Colin.6 From the defendant's perspective,
6 The term "grooming" has been used to "refer[] to
deliberate actions taken by a defendant to expose a child to
sexual material; the ultimate goal of grooming is the formation
of an emotional connection with the child and a reduction of the
child's inhibitions in order to prepare the child for sexual
activity." Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673
n.10 (2016), quoting United States v. Chambers, 642 F.3d 588,
593 (7th Cir. 2011). Where relevant, evidence of grooming may
be introduced for the nonpropensity purposes of demonstrating
the defendant's intent, preparation, plan, or design. See State
v. Castine, 141 N.H. 300, 302-304 (1996) (evidence of grooming
properly admitted to show defendant's plan and preparation to
commit charged acts of sexual assault against child); State v.
Sena, 144 N.M. 821, 826 (2008) (grooming evidence properly
admitted to show defendant's intent and to refute claim that
defendant touched victim for medical purposes); State v.
Williams, 134 Ohio St. 3d 521, 526-527 (2012) (testimony
concerning grooming properly admitted to demonstrate "motive,
preparation, and plan of the accused to target teenage males who
had no father figure and to gain their trust and confidence for
the purpose of grooming them for sexual activity with the intent
to be sexually gratified"); State v. DeVincentis, 150 Wash. 2d
11, 17-19, 23-24 (2003) (evidence of grooming properly admitted
to show defendant's plan or design). See also United States v.
Johnson, 132 F.3d 1279, 1282-1284 (9th Cir. 1997) (for charge of
transportation of minor with intent to engage in criminal sexual
8
evidence of the date of his arrest provided an important
timeline of events and explained the defendant's absence from
the home while he was incarcerated. The parties discussed
introducing the evidence through a stipulation to the jury but
did not reach an agreement prior to trial. The judge took the
issue under advisement.
The parties entered into a stipulation concerning the
defendant's arrest for and admission to possession of child
pornography on the final day of trial. The following
stipulation was submitted to the jury:
"On October 25, 2010, William McDonagh was arrested
for possession of child pornography in Hull,
Massachusetts. His home was searched that day and his
computers, digital camera, and other digital evidence
were seized. The defendant admitted to possessing
child pornography. He denied ever having any sexual
contact with his child or any child."
Soon after the stipulation was presented to the court, the
Commonwealth requested that the judge instruct the jury that
they could consider the defendant's arrest for possession of
child pornography to demonstrate his "state of mind," that he
was sexually attracted to children. Defense counsel objected,
arguing that such an instruction would invite the jury to
consider the other act evidence for impermissible propensity
purposes and that the defendant had a "criminal character for
activity, grooming evidence admissible to show defendant's
intent to engage in unlawful sexual activity with minor).
9
sexual thoughts." The defendant also noted that a state of mind
instruction would contradict the judge's other instructions to
the jury that they not consider the evidence to show the
defendant has a propensity to commit this type of crime.
Clearly recognizing the need for specific instructions
concerning the purposes for which the jury could consider the
other act evidence, the judge requested that the parties
identify the precise language for her instruction to the jury:
"What I need you to focus on is what these words should say
based on your view of what the permissible use of this evidence
is." The judge then ruled that she would not instruct the jury
on "state of mind" as it related to the defendant's arrest for
child pornography.
The Commonwealth then requested that it be permitted to
argue in closing that the jury could consider the defendant's
admission to possessing child pornography for purposes of
demonstrating his "state of mind," that he was sexually
attracted to children. Differentiating between the defendant's
arrest for possession of child pornography and his admission to
possessing child pornography, the judge concluded that the
Commonwealth's proposed argument was proper. Defense counsel
objected. She began to explain that the Commonwealth's argument
sought to "show[] that [the defendant] has a criminal character
10
or . . . show[] that he's sexually --." The judge interjected,
stating,
"She's not going to use the words criminal character.
She's going to say that his admission to possessing
child pornography is evidence that he was attracted to
children. I don't know how you can argue with that.
So I appreciate your advocacy, but I think that it is
what it is."
Defense counsel did not assert a further objection.
The Commonwealth's closing argument contained the following
statement: "The defendant possessed child pornography. He was
sexually attracted to children. [Colin] told you about the
abuse he suffered at the hands of his father. The defendant's
inclination, or interest sexually in children corroborates
[Colin's] testimony that his father sexually assaulted him."
The judge then instructed the jury that evidence of the
defendant's arrest for possession of child pornography could not
be considered as evidence that the defendant had a bad character
or a propensity to commit the crimes charged in this case. The
jury were instructed that they could only consider that the
defendant's 2010 arrest for child pornography was for "the
limited issue of the defendant's opportunity and the
relationship between the defendant and the alleged victims for
purposes of the crimes charged here. You may not consider this
evidence for any other purpose."
11
Because the judge specifically permitted the Commonwealth
to make the argument at issue in this appeal, we review the
judge's evidentiary ruling allowing that argument. The
Commonwealth contends that defense counsel failed to lodge an
adequate objection to the judge's ruling on the Commonwealth's
closing argument. Only a timely and precise objection to the
admission of evidence, or a judge's ruling, will preserve a
claimed error for appellate review. See Commonwealth v. Bonds,
445 Mass. 821, 828 (2006) ("We have consistently interpreted
Mass. R. Crim. P. 22, 378 Mass. 892 [1979], to preserve
appellate rights only when an objection is made in a form or
context that reveals the objection's basis"). See also Mass.
G. Evid. § 103(a) (2018). A timely and precise objection not
only preserves the aggrieved party's appellate rights, but more
importantly, "afford[s] the trial judge an opportunity to act
promptly to remove from the jury's consideration evidence [or
the effect of an initially improper ruling] which has no place
in the trial." Abraham v. Woburn, 383 Mass. 724, 726 n.1
(1981). See Commonwealth v. DePina, 476 Mass. 614, 624 n.9
(2017) (importance of objection is to notify judge of impending
error).7 Accordingly, to ensure that the trial judge is aware of
7 At least as important as protecting the record, a timely
and precise objection provides the judge with an opportunity to
consider the argument presented in order to make a reasoned
decision. The same principle applies where the judge's ruling
12
the basis for an objection when it is not apparent from the
context, "counsel should state the specific [evidentiary] ground
of the objection" (citation omitted). Commonwealth v. Marshall,
434 Mass. 358, 365 (2001). See Commonwealth v. Fowler, 431
Mass. 30, 41 n.19 (2000) (issue not properly preserved because
defendant objected on grounds other than those argued on
appeal).
Where the adequacy of an objection is contested, the
"objection is to be considered 'in the context of the trial as a
whole.'" Commonwealth v. Jones, 464 Mass. 16, 19 n.4 (2012),
quoting Commonwealth v. Koney, 421 Mass. 295, 299 (1995). See
Commonwealth v. Biancardi, 421 Mass. 251, 254 (1995) (objection
preserved claim where, "[s]urely, the point was brought to the
judge's attention, and she rejected it"). Perfection is not the
standard by which we measure the adequacy of an objection. See
Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3 (1999).
An objection adequately preserves the claimed error so long as
"counsel 'makes known to the court the action which he desires
excludes evidence and the party offering the evidence informs
the court concerning the admissibility of the proposed evidence
by an offer of proof. See Mass. G. Evid. § 103(a)(2) (2018).
Judges should not hesitate to reconsider their preliminary
ruling in response to counsel's argument. Indeed, an informed
evidentiary argument from counsel may allow the judge to augment
the record, whether the judge changes his or her ruling or not.
See Mass. G. Evid. 103(c) (2018) ("court may make any statement
about the character or form of the evidence, the objection made,
and the ruling").
13
the court to take or his objection to the action of the court.'"
Fowler, 431 Mass. at 41 n.19, quoting Mass. R. Crim. P. 22.
Accordingly, vague general objections often fall short of
preserving an error that is later fully articulated on appeal.
See Commonwealth v. Cancel, 394 Mass. 567, 570-571 (1985). For
example, where counsel only stated that the admission of
proposed testimony was "terribly prejudicial" and not relevant
to the case, the defendant's subsequent claim on appeal that the
testimony was impermissible bad act evidence was not preserved
because "the defendant did not object with the precision
required to preserve the error on appeal, as she failed to
delineate any specific evidentiary basis for the objection."
Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827 (2018). See
Bonds, 445 Mass. at 828 ("Rather than an objection to the
testimony as impermissible evidence of character or propensity,
the defendant's standing objection was based on relevancy
alone").
The admission of other bad act evidence, particularly the
defendant's arrest for, and admission to, possession of child
pornography, was an issue that permeated the trial. Moreover,
it is clear from the record that the judge was acutely aware of
the delicate balance required when dealing with other bad act
evidence and the importance of limiting the jury's consideration
of that evidence. Both in requesting jury instructions and
14
seeking permission to make comments in its closing argument, the
Commonwealth endeavored to allow the jury to consider the
evidence contained in the stipulation for purposes of
demonstrating the defendant's "state of mind," that he was
sexually attracted to children. The defendant objected in both
instances, claiming that the Commonwealth was inviting the jury
to make an impermissible propensity inference that because the
defendant had been arrested for, and admitted to, possession of
child pornography, he was sexually attracted to children and
therefore more likely to have committed the crimes charged.
Similarly, the Commonwealth was seeking to demonstrate the
defendant's "criminal character," for purposes of proving that
the defendant acted in accordance with that bad character.
Although defense counsel articulated an evidentiary basis
for her objection that was neither perfect nor comprehensive,
perhaps because the judge interrupted counsel in the midst of
the objection, counsel's objection adequately preserved the
issue on appeal. In the context of the entire case, counsel
sufficiently articulated that the Commonwealth was seeking to
invite the jury to use other bad act evidence for purposes other
than that for which it had been properly admitted.
Specifically, the defendant stated as grounds for his objection
that the Commonwealth sought to invite an impermissible
propensity inference based on the defendant's "criminal
15
character." See Commonwealth v. Facella, 478 Mass. 393, 403
(2017), quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006)
("evidence of prior bad acts 'is not admissible to show a
defendant's bad character or propensity to commit the charged
crime" [emphasis supplied]).8 To the extent that counsel could
have provided a more thorough and precise explanation for her
objection, we cannot hold that against her, as the judge
interrupted counsel's explanation and essentially exclaimed that
the Commonwealth's position was inarguably permissible -- "I
don't know how you can argue with that." Accordingly, we review
the defendant's claim under the prejudicial error standard.9
8 Defense counsel should have requested the opportunity to
augment the grounds for her objection. It may be that the
judge, in making her ruling, had in mind that she was not
allowing evidence in to show the defendant's "criminal
character," and that she, therefore, did not recognize that
defense counsel's objection was focused on precluding the
prosecutor from arguing that the jury could consider the other
act evidence for impermissible propensity purposes. Perhaps,
the judge would have rethought her ruling had defense counsel
argued that the Commonwealth was seeking to make an improper
propensity argument; an error that was exacerbated by the fact
that even if the defendant's "state of mind" was relevant for a
nonpropensity purpose, any probative value would be outweighed
by the danger that the jury would use the evidence as
impermissible character evidence. While we recognize that the
judge did state, "I don't know how you can argue with that," in
response to defense counsel's argument, the judge did not
foreclose further discussion of the issue.
9 We recognize that, generally, counsel's "[f]ailure to
object to the closing and to ask for a curative instruction
waives the right to claim error on appeal." Commonwealth v.
Marquetty, 416 Mass. 445, 450 (1993). The defendant correctly
observes, however, that the judge had sanctioned the
16
b. Claimed error. As discussed supra, the defendant
contends that the judge erred in permitting the prosecutor to
assert in her closing argument that the defendant's admission to
possessing child pornography demonstrated the defendant's "state
of mind," that he was sexually attracted to children. Because
this invited an impermissible propensity inference, and the
defendant's state of mind was not at issue in this case, we
agree.10
"We review questions of admissibility, probative value, and
unfair prejudice for abuse of discretion . . . and do not
disturb a trial judge's decision absent a clear error of
judgment in weighing the relevant factors." Commonwealth v.
Brown, 477 Mass. 805, 820 (2017). "The standard for evaluating
the admissibility of 'other bad acts' evidence is well
prosecutor's argument, and so the prosecutor was entitled to
make it. See Commonwealth v. Lamrini, 392 Mass. 427, 432-433
(1984). The defendant properly challenges the judge's ruling,
rather than the closing argument itself. A party need not
continue to voice an objection once it is clear that doing so
would be futile. Commonwealth v. Connolly, 49 Mass. App. Ct.
424, 426 n.2 (2000) ("after defendant has presented argument and
the judge has rejected it, he need not subsequently make
patently futile objections to preserve the point for review").
10We observe that, on appeal, the defendant claims that his
admission to possessing child pornography was not probative as
to his state of mind because possession of child pornography
does not necessarily evince sexual attraction to children. We
do not address this argument, because, as explained infra, the
defendant's admission to possessing child pornography was not
admissible as to his state of mind because his state of mind was
not at issue.
17
established." Crayton, 470 Mass. at 249. The Commonwealth may
not introduce evidence of the defendant's other bad acts in
order to demonstrate bad character, or a propensity to commit
the crimes charged. Commonwealth v. Anestal, 463 Mass. 655, 665
(2012). However, this evidence may be admissible to prove a
material issue separate and distinct from the defendant's
character or propensity to commit the crime charged. See
Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423
Mass. 356, cert. denied, 519 U.S. 1045 (1996). In the
appropriate circumstances, other bad act evidence can be used
for a variety of purposes including, but not limited to,
establishing a defendant's "motive, opportunity, intent,
preparation, plan, knowledge, identity, . . . pattern of
operation," absence of mistake, or lack of accident. Crayton,
supra, quoting Commonwealth v. Walker, 460 Mass. 590, 613
(2011). See Mass. G. Evid. § 404(b)(2) (2018). Even where the
other act evidence is relevant for a nonpropensity purpose, the
evidence may not be admitted if its probative value is
outweighed by the risk of unfair prejudice to the defendant.
Crayton, supra at 249 & n.27. See Commonwealth v. Jaundoo, 64
Mass. App. Ct. 56, 60 (2005) ("A defendant's possession of
pornography is admissible in sexual assault cases if relevant to
an issue in the case and if its prejudicial effect does not
outweigh its probative value").
18
Our resolution of the claimed error is controlled by
Crayton, 470 Mass. at 248-252. In that case, the defendant was
charged with possession of child pornography based on Internet
searches he allegedly conducted on a computer at a public
library. Id. at 229-232. At trial, the Commonwealth sought to
show the defendant's state of mind and intent by introducing
evidence of sexual drawings of young girls that were found in
his jail cell. Id. at 248. The issue at trial, however, was
the identity of the person who had conducted the illicit
Internet searches, not that person's intent or state of mind.
Id. at 250. We concluded that the other act evidence was
inadmissible, because "the risk was enormous that the jury would
use the drawings for the forbidden purpose of identifying the
defendant as the person who viewed the child pornography on
[the] computer . . . based on his bad character and propensity
to possess child pornography." Id. at 251.
Similarly, the defendant's guilt here did not turn on his
state of mind during the commission of the charged acts; rather,
it depended on whether the defendant actually committed the acts
at all. See United States v. Colon, 880 F.2d 650, 659 (2d Cir.
1989) (evidence of prior bad acts not admissible to show intent,
where intent was not in dispute because defendant denied
committing charged actions). Contrast Facella, 478 Mass. at 404
("Because the rebuttal evidence [of prior bad acts] tended to
19
disprove the defendant's theory . . . , it was relevant and
admissible for that purpose").11 Accordingly, the risk that the
jury would conclude that the defendant committed the charged
crimes based on his criminal character and propensity, as
demonstrated by his arrest for and admission to possession of
child pornography, was significant. This is particularly true
given that, in closing, the prosecutor commented on the
defendant's "inclination, or interest sexually in children,"
which was only relevant if he acted in accordance with that
inclination or bad character in abusing his son.12 Indeed, the
prosecutor stated in closing that the defendant's alleged sexual
attraction to children "corroborates [Colin's] testimony that
his father sexually assaulted him." This argument clearly
11The Commonwealth's reliance on United States v. Brand,
467 F.3d 179 (2d Cir. 2006), cert. denied, 550 U.S. 926 (2007)
and United States v. Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994),
cert. denied, 514 U.S. 1052 (1995), is misplaced. In those
cases, the defendants claimed the affirmative defense of
entrapment, which the government can defeat by showing a
defendant's predisposition to commit the alleged offense. See
Brand, supra at 189, 196; Byrd, supra at 1336-1337 & n.9.
12Additionally, "[t]his is not a case in which the disputed
evidence had [a] direct connection with the crime charged."
Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 26 (1990).
Contrast Commonwealth v. Coates, 89 Mass. App. Ct. 728, 739-740
(2016) (evidence that defendant had viewed pornography was
admissible where "[m]any of the titles of the pornographic files
and the description of the video content evince[d] a connection
to [victim's] allegations of anal intercourse" and "explicitly
parallel[ed]" victim's description of abuse).
20
invited the jury to make an impermissible propensity inference,
and as such, should not have been permitted.
c. Prejudicial error analysis. "We review
nonconstitutional errors, preserved through objection at trial,
to determine whether they created prejudicial error."
Commonwealth v. Nardi, 452 Mass. 379, 396 (2008), citing
Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525
U.S. 1007 (1998). In analyzing a defendant's claim of improper
argument, albeit an argument specifically permitted by the
judge, we analyze the remarks "in the context of the entire
argument, and in light of the judge's instructions to the jury
and the evidence at trial." Commonwealth v. Gaynor, 443 Mass.
245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 231 (1992).
Although the judge erred in allowing the prosecutor to make
this particular argument, the bulk of the prosecutor's closing
argument focused on the Commonwealth's substantive evidence
against the defendant. Her improper propensity argument "was
isolated, and 'it was not a principal focus of what otherwise
was a proper closing argument.'" Commonwealth v. Kolenovic, 478
Mass. 189, 201-202 (2017), quoting Gaynor, 443 Mass. at 274.
See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234 (2016).
The Commonwealth presented a strong case against the
defendant, which was anchored in Colin's testimony concerning
21
the instances of sexual abuse; the jury heard Colin testify that
the defendant had committed the charged acts. His testimony was
corroborated by the first complaint witness, as well as a
videotape recording of his initial disclosure to the first
complaint witness. Colin's claim, that the defendant had shown
him photographs of a nude beach and told him that they would go
there one day, was also supported by his siblings' testimony
that the defendant had shown them the same images and made
similar comments, as well as nude beach photographs submitted to
the jury that were found on the defendant's computer.
Importantly, the defendant's 2010 arrest for, and admission to,
possession of child pornography corroborated Colin's claim that
the defendant showed him sexual images of children on the
defendant's computer.
The Commonwealth also introduced evidence of the
defendant's out-of-county sexual assaults against Colin to show
his pattern of conduct towards Colin. See Commonwealth v. King,
387 Mass. 464, 470 (1982) ("when a defendant is charged with any
form of illicit sexual intercourse, evidence of the commission
of similar crimes by the same parties though committed in
another place, if not too remote in time, is competent to prove
an inclination to commit the [acts] charged" [citation
omitted]). When this evidence was admitted, the judge provided
a contemporaneous limiting instruction to the jury that they
22
could consider these uncharged assaults on Colin for several
specific purposes, including as evidence of the defendant's
opportunity, intent, and state of mind and the relationship
between the defendant and Colin.13 See Commonwealth v. Daley,
439 Mass. 558, 568 (2003) (prosecutor's characterization of
defendant as thief was "innocuous" in light of more
incriminating evidence that jury had heard about him). In light
of Colin's direct testimony, corroborated by the pornography
found on the defendant's computer, the prosecutor's improper
remarks concerning the defendant's admission to possessing child
pornography could not have swayed the jury, particularly since
that very evidence was properly admitted for a limited purpose.
We are further convinced that the prosecutor's improper
comment did not prejudice the defendant because the judge
emphatically instructed the jury that they could not consider
the other act evidence for propensity purposes or to otherwise
demonstrate that the defendant had a bad character. The judge's
instructions, considered in their entirety, were sufficient to
ensure that the prosecutor's impermissible argument did not
influence the jury's deliberations. Commonwealth v. White, 475
Mass. 724, 733 (2016). Although a limited portion of the
judge's instruction concerning other bad act evidence may have
13The defendant did not object to this instruction and does
not argue on appeal that it was improper.
23
been somewhat unclear, the judge admonished the jury not to
consider evidence related to the defendant's 2010 arrest as
evidence that he possessed a propensity to commit the crimes
charged.14 She also made sure that the jury understood the
meaning of this instruction, explaining that evidence related to
the defendant's 2010 arrest could not serve as direct proof of
his guilt, and that the jury could not infer that if he was
arrested for possessing child pornography, he must also have
committed the crimes charged.15
14We note that there was some conflict between the purposes
for which the defendant's arrest for, and admission to,
possessing child pornography were admitted, the prosecutor's
closing argument, and the judge's instruction during the jury
charge. Although the defendant's arrest for and admission to
possessing child pornography were admitted by stipulation to
corroborate Colin's testimony that his father had shown him
pornography in the course of the sexual assaults, the judge
instructed the jury that they could consider that evidence
"solely as it may bear on the limited issue of the defendant's
opportunity and the relationship between the defendant and the
alleged victims for purposes of the crimes charged here. You
may not consider this evidence for any other purpose." To the
extent that this instruction was unclear because it conflicted
with the purposes for which the evidence was admitted and the
Commonwealth's closing argument, the judge emphatically
instructed the jury that they could not consider such evidence
as demonstrating that the defendant had a propensity to commit
the offenses charged.
15Additionally, the jury's questions regarding the
definition of obscenity, and their verdict of not guilty on one
indictment charging dissemination of obscene material, evince
the jury's disciplined deliberations. See Commonwealth v.
Daley, 439 Mass. 558, 568 (2003) ("These questions suggest that
the jury engaged in a careful and thorough examination of the
evidence . . .").
24
3. Conclusion. The convictions on the two indictments
charging aggravated statutory rape and the three indictments
charging indecent assault and battery on a child under the age
of fourteen are affirmed. In light of the Commonwealth's
concession that the evidence is legally insufficient to support
a conviction of dissemination of obscene material, the
conviction on that indictment is reversed.
So ordered.