COMMONWEALTH v. FERREIRA (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Aaron Ferreira, was convicted of assault and battery on a family or household member.² On appeal, he contends that the judge erred in admitting evidence of prior bad acts involving him and the victim. We affirm.

Background. The facts are essentially undisputed for purposes of this appeal. Around 2 a.m. on January 27, 2018, the defendant and his then girlfriend, the victim, were in line at a “drive-through” at a McDonald's restaurant. Both had consumed alcohol throughout the evening. The defendant accused the victim of flirting with one of the McDonald's employees. The defendant “was yelling and he was calling [her] names,” and then struck her in the face and “down by [her] ribs.” He hit her approximately five times. The victim tried to open the car door but it was too close to the wall of the building. The defendant eventually got out of the car. The victim, who was driving, could not move the car as it was in the drive-through line between other vehicles. The victim “was crying” and “screaming” for the other vehicles to move.

In response to a 911 call from a McDonald's employee, police officers arrived at the scene. The officers noticed that the victim's face was “a little swollen” around her left eye area. They described the victim as “visibly upset, crying.” The victim went to the hospital via ambulance. The defendant made multiple telephone calls to the victim while she was in the emergency room. The victim testified that the defendant threatened her during these calls. She further testified that police officers were “near [her]” at the time that she received the telephone calls. The Commonwealth introduced the victim's medical records, photographs depicting her injuries, and a video from the McDonald's security camera that showed portions of the event but did not show the defendant striking the victim.

Prior to trial, the Commonwealth filed a motion in limine to admit evidence of certain prior bad acts the defendant had allegedly committed against the victim, and the defendant filed a motion in limine to exclude such evidence. The judge allowed the Commonwealth's motion and stated that she would provide a limiting instruction at trial.

Discussion. The defendant properly preserved the issue for appeal, and we review for abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The defendant argues that the judge abused her discretion by admitting evidence of two prior bad acts. The victim testified that her relationship with the defendant became turbulent over time and involved “a lot of jealousy.” The defendant had accused the victim of “[t]alking with other guys,” and became angry. The jealousy escalated and there were instances where the defendant “put his hands on [her].” The victim specified that in September of 2017, during an argument, the defendant whipped her in the stomach with a cord. On another occasion during an argument between the victim and the defendant, while the victim was driving, the defendant struck her in the face and broke her glasses. The defendant contends that the above-referenced evidence constituted inadmissible propensity evidence. We disagree.

The prior bad act evidence here was not too remote in time and was properly admitted to show a pattern or course of conduct, to provide context, and to demonstrate the hostile and controlling nature of the relationship between the parties. The evidence was also relevant to show, inter alia, that upon receiving the threats from the defendant, the victim was scared, upset, and seriously alarmed. See G. L. c. 268, § 13B (defining “harass” as “engag[ing] in an act directed at a specific person or group of persons that seriously alarms or annoys such person”). See also Commonwealth v. Butler, 445 Mass. 568, 575 (2005) (prior bad acts “probative to demonstrate the hostile nature of the relationship between the defendant and [victim]. This purpose repeatedly has been held to be proper and relevant”). In view of this precedent, the judge acted well within her discretion and did not err.

In addition, the judge carefully balanced the probative value of the evidence against the risk of prejudice and made a specific finding that the probative value of the evidence outweighed any risk of prejudice. Furthermore, the judge provided a comprehensive and clear limiting instruction to the jury at the time the evidence was admitted and again during her final instructions, which mitigated the risk of prejudice from the admission of the challenged evidence. Finally, we note that the jury acquitted the defendant on the witness intimidation count, see Commonwealth v. Delaney, 425 Mass. 587, 595 (1997), cert. denied, 522 U.S. 1058 (1998) (clear from not guilty verdicts on some charges that jury carefully considered evidence with respect to each crime charged), and, as previously discussed, the assault and battery charge was supported by strong corroborative evidence including physical evidence of the victim's injuries. Accordingly, we discern no error or abuse of discretion in this case.

Judgment affirmed.

FOOTNOTES

2.   The defendant was indicted on one count of assault and battery on a family or household member, subsequent offense, and one count of intimidation of a witness. The jury acquitted him of intimidation of a witness, and, following a bench trial on the subsequent offense portion of the assault and battery indictment, the judge allowed the defendant's motion for a required finding of not guilty.