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Appeals Court of Massachusetts.



Decided: November 02, 2021

By the Court (Meade, Shin & Walsh, JJ.1)


A jury convicted the defendant of vandalism of property under G. L. c. 266, § 126A. The defendant appeals, claiming that the judge erred in allowing evidence of a prior bad act. We affirm.

Background. The defendant and the victim were in a dating relationship for approximately six months. The defendant was charged with vandalism from an incident on January 7, 2017, where, in an angry response to the victim once again breaking off their relationship, the defendant drove to her home uninvited and kicked the door of her home and the side panel of her car causing substantial damage. The victim, who was inside her home at the time, called 911 to report this incident, and told the 911 operator that the defendant had previously smashed her mailbox.

Prior to trial, the Commonwealth filed a motion in limine to introduce evidence of two prior bad acts where the defendant damaged the victim's property after she terminated her relationship with him. The defense attorney filed a motion in limine to exclude all such evidence. On the day of the trial, the trial judge listened to the arguments and then conducted a thorough voir dire of the victim. The judge ruled that the Commonwealth could introduce prior bad act evidence regarding an incident in late December 2016, where the defendant drove to the victim's home and smashed her mailbox with a baseball bat after they broke up. The judge allowed this evidence, over the defendant's objection, because of “the temporal proximity to the events that are alleged in this case” and because there was a sufficiently similar modus operandi: upon the victim breaking up with the defendant, he would become angry and respond by driving over and vandalizing her property. The judge denied the other evidence of prior bad acts, finding that they were too remote or “piling” on.

At trial, the victim was allowed to testify that sometime around Christmas 2016, she broke off her relationship with the defendant, and the same day he drove over to her house and smashed her mailbox with a baseball bat.

The victim also testified that the defendant came to her home on January 7, 2017, around 1:00 a.m., and was trying to get in the door of her home, kicking the door, throwing her windchimes at a window, and then going over to her car, kicking the side panel.2 The Commonwealth played a portion of the 911 call, in which the victim explained to the 911 operator that the defendant had smashed her mailbox on a different occasion. The judge then instructed the jury as follows:

“[A]llow me ․ to give you a limiting instruction with respect to the defendant's alleged conduct in December of 2016. The defendant was never charged with [the damage to the victim's mailbox]. It is merely an allegation, and it is before you not to show the propensity of whether or not the defendant committed the crime that he's charged with today. The Commonwealth has put it in and I have allowed it in for a pattern of conduct, for modus operandi only, and so you are to understand that that was an allegation only, that the defendant denies that that has happened, and that he was never charged with that.”

Discussion. Evidence of prior bad acts is not admissible to show that a defendant has a bad character or a criminal propensity, but may be relevant and admissible for some other purpose. See Commonwealth v. Almeida, 479 Mass 562, 568 (2018); Mass. G. Evid. § 404 (b) (1) (2021). Such purposes include establishing “motive, opportunity, or intent.” Commonwealth v. West, 487 Mass. 794, 805 (2021). Once relevance is established, the test for admissibility is whether the weight or importance of the evidence outweighs any possible prejudice. See id. For the evidence to be considered sufficiently probative, there must be a logical relationship between the prior bad act and the crime charged. See id.

“We will affirm a judge's decision to allow the admission of prior bad act evidence unless the judge ‘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’ ” (citation omitted). West, 487 Mass. at 805-806. Here, the evidence was admissible for proper purposes: to show a pattern of conduct when the victim broke off the relationship with the defendant and to establish the hostility the defendant bore toward the victim.3 See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 (1998) (evidence of pattern of conduct can be admitted for several purposes, including “where it corroborates the victim's testimony”). The evidence was also probative on the issue of identity. We cannot say that the prior act was so remote in time or so unconnected to the facts of the case that the judge committed an abuse of discretion in admitting it. See Commonwealth v. Marrero, 427 Mass. 65, 71 (1998). Finally, the judge mitigated the prejudicial effect of the prior bad act by giving the jury a proper limiting instruction, explaining that the defendant was never charged with any crime relating to the past incident and that the incident was not to be considered for the propensity of whether the defendant committed the charged crime but to establish a pattern of conduct and his modus operandi.

Judgment affirmed.


2.   The Commonwealth introduced evidence that the victim had blocked the defendant from one of her two cell phones that evening and that at about 12:45 a.m., after the victim had returned home from work, the defendant texted her that he was about to arrive at her home. The victim texted back telling the defendant that he should not come over and was unwelcome. At trial, the defendant denied that he went to victim's home that evening after she returned home from work.

3.   Contrary to the defendant's assertion, the judge admitted the evidence as relevant to establishing a pattern of conduct, as reflected in the limiting instruction.

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