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Appeals Court of Massachusetts.



Decided: February 12, 2021

By the Court (Henry, Sacks & Englander, JJ.1)


Following a jury trial, the defendant was convicted of two counts of indecent assault and battery on a person under the age of fourteen pursuant to G. L. c. 265, § 13B. We affirm.

Discussion. The charges stem from a single alleged incident between the defendant and the complainant, his niece. The complainant testified that in 2009, when she was eleven, the defendant touched her breasts, stomach, and the outside of her vagina while she was sleeping at his house, in the same room as her cousin, the defendant's daughter. She testified that she felt her uncle's hands on her, and that she was “really scared” and never opened her eyes. She testified that she “felt his presence on me, and I felt his breath on me, and I just knew it was [a] man's hands. I knew it was him.” The complainant disclosed the alleged abuse in 2018 and the defendant was convicted in 2019.

1. Prior bad act. The defendant argues on appeal that the trial judge erred in allowing the Commonwealth's motion in limine to introduce evidence of a prior bad act by the defendant; specifically, allowing the complainant to testify to an uncharged incident, eleven months before the charged incident, where the defendant allegedly untied the victim's bikini top and touched the complainant's bare breasts and shoulder. This alleged incident occurred when the defendant and the victim were in the car waiting for the victim's grandfather, who entered the car while the victim was still replacing her bikini top.

As the defendant objected to the admission of this prior bad act testimony, we review for error, and, if there was error, whether the error was prejudicial. See Commonwealth v. Crayton, 470 Mass. 228, 252 (2014). The trial judge admitted this evidence “for pattern, relationship, and identification.” See Mass. G. Evid. § 404(b) (2019) (“Evidence of a crime, wrong, or other act ․ may be admissible for another purpose, such as proving motive, opportunity, intent, ․ plan, knowledge, [or] identity”). See also Commonwealth v. Leonard, 428 Mass. 782, 786 (1999). Such evidence, if it is “proximate in both time and place,” may be admitted unless its “probative value is outweighed by the risk of unfair prejudice.” Commonwealth v. Tavares, 482 Mass. 694, 712 (2019). See Crayton, supra at 249; Mass. G. Evid. § 404(b)(2). The relevance of prior bad act testimony is “entrusted to the trial judge's broad discretion and [is] not disturbed absent palpable error.” Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242 (2017). See Commonwealth v. Pierre, 486 Mass. 418, 424-425 (2020). Reversible error in admitting prior bad act evidence may be found where that evidence overwhelms the evidence of the charged incident, see Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006), while “any risk of unfair prejudice [can be] reduced by the Commonwealth's limited use of the evidence.” Pierre, supra at 426.

Here, we conclude that there was no error in admitting the challenged evidence. Although the defendant claims that there was no similarity between the two incidents, both involve an allegation that the defendant inappropriately touched the complainant while family members were in close proximity and there was danger of discovery. The trial judge, by deciding to admit this evidence, implicitly found this to be a sufficient “ ‘special mark or distinctiveness in the way the acts were committed’ that tends to prove the defendant committed the crime charged.” Tavares, 482 Mass. at 712, quoting Commonwealth v. Brusgulis, 406 Mass. 501, 505 (1990).

There was also no “danger of overwhelming a case with such bad act evidence,” Dwyer, 448 Mass. at 129, quoting Commonwealth v. Roche, 44 Mass. App. Ct. 372, 380 (1998), as the Commonwealth spent significantly less time discussing the prior bad act than the charged incident. Furthermore, the judge's careful contemporaneous limiting instruction mitigated any risk of the prior bad evidence overwhelming the charged conduct:

“[Y]ou may not take this as a substitute for proof that the defendant committed the crimes for which he is on trial here today. Nor may you consider it as proof the defendant has a criminal personality or bad character. But you may consider it solely on the limited issue of pattern of conduct, identification, and the intent. You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that the defendant committed the other acts for which he stands charged.”

The judge's forceful limiting instruction, by emphasizing the limited purpose for which the prior bad act evidence could be used, minimized any prejudicial effect of such evidence. See Commonwealth v. Almeida, 479 Mass. 562, 569 (2018); Commonwealth v. Forte, 469 Mass. 469, 480-481 (2014). “We presume that a jury understand and follow limiting instructions ․ and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless.” Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

The judge did not abuse her broad discretion in admitting the evidence for this limited purpose. See Almeida, 479 Mass. at 569.

2. In-court identification. The defendant next argues that the trial judge erred by allowing the in-court identification of the defendant by the complainant in violation of Crayton, 470 Mass. at 249. The defendant contends that without the benefit of sight, smell, or hearing, the identification was equivocal and should not have been permitted in court for the first time. Because the defendant objected, we review for prejudicial error. See Commonwealth v. Dew, 478 Mass. 304, 305 (2017). The question is whether the judge abused her discretion in allowing the identification, meaning that the judge must have “made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Commonwealth v. Collins, 92 Mass. App. Ct. 395, 397 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

On this record, we cannot conclude that the trial judge abused her discretion. The complainant's testimony established her familiarity with the defendant, her uncle, whom she had known her entire life. See Crayton, 470 Mass. at 243 (“where the witness is not identifying the defendant based solely on his or her memory of witnessing the defendant at the time of the crime, there is little risk of misidentification arising from the in-court showup despite its suggestiveness”). She further testified that she “knew it was him.” She felt his presence and his breath. The defendant also concedes that the victim testified that he was the only man in the house at the time of the incident. The complainant testified that she “knew it was [a] man's hands” and the hands were “very big ․ and covered [the complainant's] entire stomach.” In addition, she testified that she had felt her uncle's hands on her breasts less than one year before. There was no error. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (it is “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”).

3. Excluded conversation. The defendant also argues that he should have been allowed to testify that approximately one week before the complainant's disclosure, the complainant's father told the defendant that he (the complainant's father) had told the complainant that the defendant refused to disburse trust fund money, causing the complainant's father to be unable to assist his children financially. The complainant's father did not testify at trial.

The scope of witness testimony is “within the sound discretion of the trial judge.” Commonwealth v. Jackson, 384 Mass. 572, 584 (1981). The testimony about what the father allegedly said to the defendant was hearsay and was properly excluded. See Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987) (“evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule”); Mass. G. Evid. § 805 (2019). Furthermore, on the record before us we cannot hold that the judge abused her discretion when evidence of the financial dispute had already been “sufficiently aired” at trial. Commonwealth v. LaVelle, 414 Mass. 146, 154 (1993), quoting Commonwealth v. Hicks, 377 Mass. 1, 8 (1979).

Judgments affirmed.

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