Commonwealth v. Childs

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16-P-1414 Appeals Court

COMMONWEALTH vs. RICHARD CHILDS.

No. 16-P-1414.

Middlesex. December 8, 2017. - September 20, 2018.

Present: Sacks, Ditkoff, & Singh, JJ.

Indecent Assault and Battery. Evidence, Prior misconduct.
Practice, Criminal, Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on May 1, 2012.

The cases were tried before Robert N. Tochka, J.

James F. Petersen for the defendant.
Kate Cimini, Assistant District Attorney, for the
Commonwealth.

DITKOFF, J. The defendant, Richard Childs, appeals from

his Superior Court convictions on three indictments charging

indecent assault and battery, see G. L. c. 265, § 13H, and one

indictment charging indecent assault and battery on a child, see

G. L. c. 265, § 13B, arising out of his seven-year abusive

relationship with a friend's daughter. The charged acts, which
2

occurred in Middlesex County, happened at the beginning and the

end of that time period. We conclude that the judge properly

allowed the Commonwealth to present evidence that the abuse

continued during the period in which the family lived outside

Middlesex County to show the nature of the relationship and the

absence of mistake or accident. As we also conclude that the

prosecutor properly used the uncharged conduct for these

purposes during closing argument, we affirm.

1. Background. a. The Commonwealth's case. The victim

lived with her parents and her sister, who is two years younger

than the victim. The victim's father had a serious problem with

alcohol use, and the victim's mother had a severe mental illness

that resulted in her spending most of her time in her room. The

defendant was a close family friend and had been a part of the

victim's life since her infancy.

Prior to the victim's turning seven years old, the victim

and her family lived in Hudson in Middlesex County. When the

victim was five or six years old, she was in the attic with the

defendant, who was teaching her how to read. The defendant

began rubbing his penis with his own hand "on the outside of his

pants." The defendant then grabbed the victim's hand and rubbed

it against his penis, also on the outside of his pants. He

continued to read words to her as he did this.
3

Shortly before the victim's seventh birthday, she and her

family moved to Springfield in Hampden County. In Springfield,

the defendant would come to the victim's house "mostly every

Sunday" during football season to drink alcohol and to watch

football games with the victim's father. Whenever the victim's

father would leave the room, the defendant would continue his

sexual advances towards the victim. He would rub his penis over

his pants, lick his lips, and direct gestures indicating

intercourse with his fingers toward the victim. The victim

"really didn't have any reaction to it."

The victim recounted two specific incidents to the jury

from her time outside Middlesex County. When she was seven or

eight years old, the defendant brought the victim and her sister

"glow in the dark" stickers for their shared bedroom. After the

girls affixed the stickers, the defendant expressed his desire

to "see . . . how the room looked." This, of course, required

turning off the lights. Once the lights were out, the defendant

took his penis out of his pants and rubbed it against the

victim's face. The victim ran and hid behind a dresser.

When the victim was eight or nine years old, the victim's

father asked the victim to accompany the defendant on a drive to

Ludlow (also outside Middlesex County) to fill the defendant's

gasoline tank. While driving, the defendant rubbed his hands
4

over the victim's abdomen and on her lap, over her vagina. She

told him to stop, and then he rubbed her cheek.

The victim recounted two other specific acts of molestation

that the judge excluded and were not heard by the jury.1 One

occurred when the victim was ten or eleven years old. The

victim and her sister were in a pool and the defendant exposed

his penis to them. The other involved the defendant's putting

his penis in the victim's mouth and then licking her vagina.

The time frame and location for this latter incident was vague;

the Commonwealth stated that it occurred when the victim was six

years old (before she moved to Springfield), but also stated

that it occurred in 2006, when the victim would have been eight

or nine years old and living in Springfield.2

In 2011, shortly after the victim turned fourteen years

old, her family lost electricity to their house in Springfield

and decided to return to an empty apartment in Hudson that her

family still owned. The first evening, the victim returned from

a visit to her grandmother's apartment to find her father passed

1 The judge also excluded a third act, close in time to the
charged 2011 incident, when the prosecutor tried to elicit it in
cross-examination of the defendant. Apparently, it was not
included in the Commonwealth's motion in limine.

2 The victim described to investigators another specific
incident that occurred when she was twelve years old, in which
the defendant rubbed his penis and then exposed it to her. The
judge did not exclude this incident, but no evidence of it was
presented to the jury.
5

out on a couch, with the defendant sitting next to him watching

television. After the victim and the defendant talked for a

while, she asked the defendant if she and her sister could go to

his apartment (which was nearby) and use his computer. He

agreed.

After approximately one hour, the defendant returned to his

apartment while the victim and her sister were still there. The

defendant put his hand down the back of the victim's shirt and

began rubbing her back. The defendant then moved his hand to

the front and touched her breasts underneath her bra. The

victim was "just sitting there." The defendant touched the

victim's "stomach" under her clothes. Again, the victim was

"just sitting there." The defendant placed a hand over her

pants, over her vagina area, and rubbed back and forth. Again,

the victim was "just sitting there." After "a minute," the

defendant stopped.

The victim's sister then went into the hallway to make a

telephone call. The defendant took the victim's finger and

sucked on it for approximately thirty seconds, going "back and

forth against [her] finger." The victim was "still sitting

there . . . in shock" and "just let it happen." When the

victim's sister returned and saw this, the defendant stopped.

After the victim's sister reentered the room, the defendant

rubbed his waist against the victim's shoulder. The victim
6

could feel his erection through his pants. Again, the victim

was "still sitting there."

On another evening in the next few days, the defendant

repeatedly put his hand on the victim's buttocks, over her

clothing. He said, "Excuse me," but the victim was convinced

that it was intentional.

A Hudson police detective interviewed the defendant shortly

after the incidents. According to the detective, the defendant

stated that, after tending to the victim's father, he had

returned to his apartment. He wanted to see what the girls were

doing on his computer, so he placed his hands on the chair or

possibly on the girls' shoulders and leaned forward to see. He

said that "it could have been a possibility" that he had

"brushed up against them and maybe touched their breast or

something as an accident."

b. The defendant's case. The defense was that "this girl

made up these allegations against the defendant because of the

lack of attention she was getting from her own family." The

defendant testified that the victim and her sister were lonely

and had little interaction with their parents. He took the

girls out to eat and bought them clothing. Once the family

moved to Springfield, he visited them every weekend in the

summer.
7

He acknowledged allowing the girls to access his apartment

and to use his computer when they were living in Hudson in 2011.

When he returned to his apartment, he "put [his] arms around

them, . . . gave them a kiss on the head, [and] asked them how

they were doing and how was their summer." He occasionally got

up to see what they were doing on the computer. He had to put

his hands on their shoulders to balance himself when he did

this. This happened again the next evening. He denied touching

the victim inappropriately in any way. He also denied the

charged conduct in the attic when the victim was five or six

years old.

Regarding the uncharged driving incident when the victim

was eight or nine years old, he remembered having to throw his

arm across the victim when braking because she was not wearing a

seat belt. He also remembered the uncharged glow in the dark

stickers incident. He testified that the door to the bedroom

was never closed and that he did not act inappropriately. He

also denied the victim's account of weekly sexual gestures and

harassment.

The defendant called three social workers as witnesses.

One testified that, when the victim was eight years old, she

recanted an accusation against the defendant when interviewed by

the social worker. When the victim was ten years old, she told

another social worker that "she hadn't been sexually abuse[d]."
8

When the victim was thirteen years old, she denied to a third

social worker that she had ever been touched sexually without

her consent. The defendant also elicited from a responding

officer a description of the victim's 2011 report to the police,

which was less detailed than her trial testimony.

2. Discussion. a. Evidence of uncharged conduct.

"Evidence of a defendant's prior or subsequent bad acts is

inadmissible for the purpose of demonstrating the defendant's

bad character or propensity to commit the crimes charged."

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).

Nonetheless, "[s]uch evidence may be admitted 'to show a common

scheme or course of conduct, a pattern of operation, absence of

accident or mistake, intent, or motive.'" Commonwealth v.

Beaulieu, 90 Mass. App. Ct. 773, 780 (2016), quoting

Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003). Even

when relevant, "the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant." Commonwealth v. Almeida, 479 Mass. 562, 568

(2018), quoting Crayton, supra. These matters are "entrusted to

the trial judge's broad discretion and are not disturbed absent

palpable error." Commonwealth v. Keown, 478 Mass. 232, 242
9

(2017), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192

(2010).3

Here, the evidence was relevant to show that "the

relationship" between the defendant and the victim was one of

continuous sexual abuse. Commonwealth v. Centeno, 87 Mass. App.

Ct. 564, 567 (2015). See Commonwealth v. Dwyer, 448 Mass. 122,

128-129 (2006), quoting Commonwealth v. Barrett, 418 Mass. 788,

794 (1994) ("some evidence of uncharged conduct may be

admissible to give the jury a view of the entire relationship

between the defendant and the alleged victim, and the 'probative

existence of the same passion or emotion at the time in

issue'"). Had the jury been left with the false impression that

the defendant had molested the victim once when she was five or

six years old and then not again until she was a teenager, her

testimony would make little sense. The jury would hear that she

was chatting with someone who molested her seven years earlier

and asked to go to his apartment to use his computer. Then,

when the defendant began molesting her, she was "just sitting

there"; she "just let it happen"; she was "still sitting there."

This lack of reaction occurred while the defendant went from

3 We assume, without deciding, that the issue was preserved,
despite the defendant's lack of objection when the evidence was
introduced and the fact that the trial here predated
Commonwealth v. Grady, 474 Mass. 715 (2016). Because the trial
judge twice revised which acts he would admit and told the
defendant that his rights were saved at some points, but not at
other points, the issue is complicated.
10

reaching down her shirt, to touching her breasts under her bra,

to rubbing her vagina area over her pajama pants, to sucking her

finger, to rubbing his erection against her shoulder.

Once the jury had knowledge that the victim alleged this

was part of an ongoing, continuous abusive relationship, the

victim's actions and reactions make logical sense. Thus, "the

relationship between [the] defendant and [the victim]," Centeno,

87 Mass. App. Ct. at 567, quoting Commonwealth v. Santiago, 52

Mass. App. Ct. 667, 679 (2001), a proper use of uncharged

conduct, was important evidence here. See Commonwealth v.

Newcomb, 80 Mass. App. Ct. 519, 526 (2011) (uncharged rape of

victim when she was fifteen years old properly admitted in

prosecution for rapes of victim three and six years later to

show "full picture of the entire relationship with the victim");

Beaulieu, 90 Mass. App. Ct. at 780 (in prosecution for domestic

battery, judge properly allowed victim to testify that her

mother had been hitting her at least two times each month for

previous three or four years to provide "the history of the

relationship [between the defendant and the victim] to give

context to the jury").

The nature of the relationship was particularly relevant

here, as the only reason why there is any uncharged conduct is

the fortuity that the middle acts of molestation happened in a

different county from the beginning and ending acts. Cf.
11

Commonwealth v. McDonagh, 480 Mass. 131, 143 (2018) (proper

introduction of "defendant's out-of-county sexual assaults

against [victim] to show his pattern of conduct towards

[victim]" mitigated closing argument error). If all of the

incidents of abuse had occurred in the same county, they all

could have been charged by the Middlesex County district

attorney, and there would be no issue about the admissibility of

these acts.4

The evidence was relevant for another purpose as well.

Based on the defendant's statement to the police, it was evident

that there would be a question of accident or mistake, as the

defendant told the police it "could have been a possibility"

that he "brushed up against them and maybe touched their breast

or something as an accident." And, indeed, the defendant did

ask for, and receive, an accident instruction. The continuous

abuse, of course, was powerful evidence rebutting the claim of

accident, another proper use for uncharged conduct. Dwyer, 448

Mass. at 128. See Commonwealth v. Roby, 462 Mass. 398, 414

4 In the context of property crimes, the Legislature has
created a mechanism for a related course of criminal conduct
occurring in different counties to be tried in one court. G. L.
c. 266, § 60B. This case suggests consideration might be given
to whether a similar mechanism should exist for crimes against
the person. Under current law, the district attorney in one
county must request of the district attorney in the other county
to indict a defendant there and then obtain a court order
consolidating the various indictments, see, e.g., Dwyer, 448
Mass. at 126 n.5, neither of which would be necessary in the
case of a property crime.
12

(2012) (evidence of number of times defendant sexually touched

each victim properly admitted to undermine defendant's

explanation for presence of victim on his lap not wearing a

shirt); Commonwealth v. Vera, 88 Mass. App. Ct. 313, 319 (2015)

(in prosecution for open and gross lewdness, "[e]vidence of

Internet searches for young girl pornography is relevant . . .

because it is highly probative of the defendant's intent and the

lack of innocent mistake in exposing his genitals to a young

girl").

In light of the relevance of the nature of the defendant's

continuous relationship with the victim, it was well within the

judge's discretion to admit two specific examples of the

defendant's abuse during the victim's time outside Middlesex

County. In this regard, the judge carefully exercised his

discretion, excluding the two most damaging incidents of

uncharged conduct. Specifically, the judge excluded the

incident that involved the victim's sister as a victim also (the

pool incident when the victim was ten or eleven years old), and

the incident that involved oral rape. See Vera, 88 Mass. App.

Ct. at 322 (judge "selective" in which prior bad acts to admit).

Moreover, as the case developed, the prejudicial tendency

of the uncharged conduct was diminished. Because the defendant

used the victim's statements, while living in Springfield, to

the three social workers denying she had been sexually abused to
13

attack her credibility, the defendant's evidence (if credited)

naturally rebutted the uncharged conduct evidence as well.5

Furthermore, the defendant had no difficulty remembering the two

uncharged incidents and recounting his version of events.

Finally, the uncharged conduct was supported only by the

victim's testimony, so the admission required no change in the

defense theory that she was fabricating the abuse.

The judge here avoided replicating the error in Dwyer, 448

Mass. at 129-130. There, the Commonwealth presented two charged

incidents and seven uncharged incidents. Id. at 127-128.

(Unlike here, in Dwyer, all of the uncharged incidents preceded

the charged conduct. Id.) The direct examination on the

uncharged conduct there was forty per cent longer than on the

charged conduct, and most of the cross-examination and "much" of

the defendant's testimony was directed to the uncharged conduct.

Id. at 128.

Here, by contrast, the bulk of the victim's testimony and

all four Commonwealth exhibits concerned the charged conduct. A

much smaller portion of the victim's testimony concerned the

uncharged conduct. All of the victim's sister's testimony

concerned the charged conduct, as she failed to answer questions

about the uncharged conduct. None of the detective's testimony

5 Defense counsel stated that her desire to use the victim's
statements to the social workers was independent of the
admission of the uncharged conduct.
14

concerned the uncharged conduct. Similarly, the defendant's

testimony (on direct and cross-examination) was centered on the

charged conduct, with a much lesser amount concerning the

uncharged conduct.

This case favorably compares to cases in which uncharged

conduct was permissibly admitted. In Commonwealth v. Facella,

478 Mass. 393, 403-404 (2017), the Commonwealth introduced prior

attacks on two unrelated persons to rebut a defense that the

charged attack was caused by medication. Like here, there were

two specific incidents and a five-year course of general

conduct. See id. at 403. But, unlike here, the victims in the

uncharged conduct were different from the victim of the charged

conduct. Id. Nonetheless, the Supreme Judicial Court found the

admission of the evidence within the trial judge's discretion.

Id. at 407-408.

In Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 53

(2015), the defendant was charged with the rape of his son's

eight year old half-sister. The Commonwealth introduced

evidence that the defendant molested his own daughter for four

to six years about ten years before the charged conduct to show

a pattern of operation. Id. at 53-54, 55. The evidence there

had a greater potential for prejudice than here, as the

uncharged conduct was presented by the testimony of the

defendant's own daughter, who was not the victim in the charged
15

conduct. Id. at 55. Nevertheless, we held that admission of

the evidence was within the trial judge's discretion. Id. at

54.

In Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 812

(1998), the defendant was charged with raping the victim in his

cottage in Scituate. Most of the defendant's abuse of the

victim, however, occurred in a ski chalet in Vermont, and the

victim testified about numerous sexual assaults there. Id. In

addition, the Commonwealth presented evidence that the defendant

abused four other persons in the ski chalet over the next ten

years. Id. at 812-813. We held that admission of all of this

evidence was within the judge's discretion to show a course of

conduct. Id. at 819-820. Moreover, "[a]lthough the last

witness claimed to have been abused . . . nine years after the

last charged act, this testimony was not too remote, given the

continuing nature of the pattern, and the striking similarity of

each incident to the charged acts." Id. at 820. This case

falls well within the parameters of Hanlon.

Furthermore, it is significant that "[t]he judge also

provided a limiting instruction to the jury regarding the prior

bad act evidence when it was offered and again in his final

charge, thus minimizing any prejudicial effect." Almeida, 479

Mass. at 569. Accord Commonwealth v. Clayton (No. 1), 63 Mass.

App. Ct. 608, 613 (2005). The judge forcefully limited the
16

jury's use of the uncharged conduct to discerning "the

relationship between the parties, the respective positions of

the parties, any state of mind of the defendant or pattern of

conduct or common scheme or course of conduct, absence of

mistake or accident." The judge provided this limiting

instruction before the victim's testimony about the uncharged

conduct, again after that testimony, and yet a third time in the

final charge. In sum, the judge acted within his discretion in

his handling of the evidence of uncharged conduct.

b. Closing argument. So long as the prosecutor's closing

argument is grounded in the evidence, the prosecutor may "argue

'the evidence and the fair inferences which can be drawn from

the evidence.'" Commonwealth v. Rivera, 91 Mass. App. Ct. 796,

801 (2017), quoting Commonwealth v. Braley, 449 Mass. 316, 329

(2007). "Because the defendant did not object to the

prosecutor's closing statement at trial, we review [any error]

for a substantial risk of a miscarriage of justice."

Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018).

In closing argument, the prosecutor argued that the

defendant consistently molested the victim from the time she was

six years old. The prosecutor argued that all the incidents,

charged and uncharged, were part of a pattern of the defendant's

taking advantage of opportunities to molest the victim. In

short, the prosecutor used the uncharged conduct to argue that
17

it showed the relationship between the defendant and the victim

was one of consistent sexual abuse. This was one of the

purposes for which the uncharged conduct was admitted.

Accordingly, the prosecutor acted properly in using the evidence

for the purpose for which it was admitted. See Commonwealth v.

Philbrook, 475 Mass. 20, 28-29 (2016) (prosecutor's argument

that defendant killed victim because he was angry was proper use

of prior bad acts admitted to show hostility between defendant

and victim); Commonwealth v. Baker, 67 Mass. App. Ct. 760, 769

(2006) (argument that prior bad acts showed that defendant

committed charged crime was proper).

There is no doubt that, had the uncharged conduct been

improperly admitted, the prosecutor's heavy use of it would

establish the prejudicial nature of the error. Because,

however, the trial judge acted within his discretion in

admitting the evidence of the uncharged conduct, there was no

error.

Judgments affirmed.
SINGH, J. (dissenting). I write separately because I

believe that the court's decision fails to adhere to the

guidance of the Supreme Judicial Court in Commonwealth v.

Facella, 478 Mass. 393, 405-406 (2017), and Commonwealth v.

Dwyer, 448 Mass. 122, 128-129 (2006), respecting the admission

of uncharged prior bad acts in criminal sexual assault cases.

The uncharged criminal conduct introduced in this case

overwhelmed the charged conduct and, together with closing

argument, which blended the two, likely deprived the defendant

of a fair trial. In arriving at a contrary conclusion, I

believe the court significantly underestimates the damage done

by evidence of uncharged bad acts, particularly those that

constitute the same crimes for which the defendant is on trial.

While our case law has developed in such a way as to allow

bad acts to be admitted for various purposes, including to show

"inclination" to commit the crime charged, it still aims to

prohibit propensity evidence. Commonwealth v. Hanlon, 44 Mass.

App. Ct. 810, 818 n.5 (1998) (noting incongruence of law in this

area). If the exceptions are not to swallow the rule, they must

be applied in a circumspect manner and with due regard for the

risk of prejudice to the defendant.

The starting point must be that any bad act evidence that

is collateral to the issue to be tried risks being highly

prejudicial. See Commonwealth v. Barrett, 418 Mass. 788, 795
2

(1994) ("It is implicit in the general rule regarding the

inadmissibility of prior bad acts evidence that the admission of

such evidence carries with it a high risk of prejudice to the

defendant"); Commonwealth v. Crayton, 470 Mass. 228, 249 n.27

(2014) (because "other bad acts" evidence is "inherently

prejudicial," more "exacting standard" of admissibility is

necessary). To this must be added the consideration that bad

act evidence "is admitted not for the direct purpose of proving

an element of the crime charged but merely as circumstantial

evidence tending to establish, by inference, one factor relevant

to the determination of guilt." Barrett, 418 Mass. at 795.

Against this backdrop, the probative value of the bad act

evidence must be evaluated. See Commonwealth v. Anestal, 463

Mass. 655, 665 (2012) (even if other bad act evidence is

probative of relevant issue in case, it may not be admitted

unless probative value outweighs risk of unfair prejudice).

In order to determine whether the proper balance was

struck, it is important to clarify the purpose for which the

Commonwealth offered the evidence and the basis upon which the

trial judge admitted it. See Facella, 478 Mass. at 404. Here,

the prosecutor explained that the purpose was the usual one:

"to present an accurate picture of the relationship between the

parties and the defendant's motive and intent for the charged
3

conduct."1 The judge allowed the Commonwealth's motion, without

articulating his reasoning, so it is natural to infer that he

concurred with the Commonwealth's rationale and its theory.2

There is no question that, when a defendant is tried on

sexual assault charges, "some evidence of uncharged conduct may

be admissible to give the jury a view of the entire relationship

between the defendant and the alleged victim, and 'the probative

existence of the same passion or emotion at the time in issue.'"

Dwyer, 448 Mass. at 128-129, quoting Barrett, 418 Mass. at 794.

Compare Facella, 478 Mass. at 405. Some evidence, however, does

not mean any or all evidence. See Dwyer, 448 Mass. at 129

1 The prosecutor also explained "the reason that [the
uncharged acts are] part of the case is quite simply because
they happened out of county." The Commonwealth was not without
the ability to prosecute the defendant for crimes against the
same victim occurring in two different counties. See Dwyer, 448
Mass. at 126 n.5 (sexual assaults involving same defendant and
victim in two different counties indicted separately and joined
for trial). The fact that the other bad acts occurred out of
county should not be a ground supporting admission.

2 Although the Commonwealth sought to admit the bad acts in
order to put the crimes into the context of the relationship,
the prosecutor also sometimes referred to the bad acts as
"course of conduct" evidence. There was nothing to suggest,
however, a unique pattern underlying the specific incidents that
would constitute a course of conduct. See, e.g., Commonwealth
v. Walker, 442 Mass. 185, 201-203 (2004) (defendant engaged in
series of criminal episodes; in each, he brought woman back to
his home, drugged her with drink containing sleeping medication,
and then sexually assaulted her); Hanlon, 44 Mass. App. Ct. at
818-821 (in trial of priest charged with sexually assaulting
altar boy, other former altar boy witnesses permitted to testify
to uncharged assaults against them, where each had similar
relationship to defendant, assaults occurred in same location,
and manner in which defendant approached each was similar).
4

(allowing victim "to testify in detail about each of seven

uncharged incidents was excessive").

Nor does our common-law rule contemplate that uncharged bad

act evidence be fully recited by the victim at trial, if for no

other reason than a detailed narrative is likely to confuse the

facts and the issues to be decided by the jury, and to create a

risk of undue prejudice to the accused. See Commonwealth v.

Stone, 321 Mass. 471, 473 (1947) (bad act evidence creates risk

that jury may see defendant as someone capable of and likely to

commit crime charged and dispense with proof that he actually

did commit crime charged). See also Commonwealth v. Trapp, 396

Mass. 202, 206 (1985).

Here, the prosecutor indicated that the bad act evidence

would be presented "in fairly summary fashion so that they don't

overwhelm the trial." Yet, the Commonwealth's motion in limine

sought to present evidence of several specific instances of

uncharged bad acts taking place in the seven years between the

charged acts. The judge allowed the motion in its entirety.

Later, during the course of trial, the judge limited the

evidence somewhat, but still allowed the victim to testify to

details of uncharged sexual assaults, some of which were more

inflammatory than the charged assaults. Given the purpose of

the bad acts evidence -- to present a fair picture of the

relationship between the parties -- it was unnecessary to go
5

into the details of the specific incidents.3 See Anestal, 463

Mass. at 666 (fact of department of social services complaint

against defendant was probative, details were not). Rather,

where there was no other purpose for bringing up specific

incidents, the nature of the relationship should have been

explained in a summary manner. See Dwyer, 448 Mass. at 130

(court cautioned trial judge on remand "to limit any prior bad

act testimony to establishing in summary fashion that the

[victim] claims that the abuse continued over a number of

years"). Contrast Facella, 478 Mass. at 404-405 (specific

incidents of defendant's violent attacks prior to interferon

treatment admitted where relevant to specific purpose of

rebutting defendant's claim that interferon diminished his

capacity to commit murder).

The detailed nature of the uncharged incidents naturally

led to cross-examination on those allegations and, when the

defendant testified, to direct examination attempting to rebut

those allegations and further cross-examination. Thus, the

3 Although the Commonwealth need not demonstrate that bad
act evidence is necessary to its case, see Commonwealth v.
Copney, 468 Mass. 405, 413 (2014), the fact that it is
unnecessary certainly enters into the calculus whether the
evidence is more probative than prejudicial. See Mass. G. Evid.
§ 404(b)(2) (2018) (admissibility of bad acts evidence dependent
on probative value outweighing risk of unfair prejudice to
defendant). In my view, it is unnecessary to admit evidence of
specific incidents of bad acts simply to give context regarding
the relationship between the parties, where that purpose may be
served by a summary explanation.
6

jury's focus "was repeatedly drawn to the uncharged conduct."

Dwyer, 448 Mass. at 129. Contrast Commonwealth v. King, 387

Mass. 464, 469 (1982) (after other bad acts evidence introduced,

there was no further testimony concerning that evidence, and it

was not alluded to in closing argument or judge's charge). See

Mass. G. Evid. § 404(b) note, at 56 (2018) ("The prohibition

against propensity evidence in specific act form stems from the

belief that not only does such evidence have low probative value

and carry the distinct risk of undue prejudice, it will also

inevitably lead to proliferation of issues and distract the

attention of the fact finder from the main event").

Moreover, the uncharged acts constituted the same crimes

for which the defendant was being tried. The risk that the jury

would infer guilt of the specific charged crimes in 2006 and

2011 from evidence that the defendant repeatedly committed the

same crimes during the seven-year interim was too great to

overlook. See Commonwealth v. Leftwich, 430 Mass. 865, 869

(2000) (substantial similarity of prior conviction to charge

being tried weighs in favor of exclusion); Commonwealth v.

Little, 453 Mass. 766, 773-774 (2009) (admission of defendant's

prior conviction of crime substantially similar to one for which
7

he was being tried created risk that jury would convict based on

propensity).4

This risk became more evident when, in closing argument,

the prosecutor reviewed the uncharged conduct in conjunction

with the charged conduct. The argument began: "In 2006 and

2011, and a bunch of times in between, this defendant took his

opportunities when and where he found them." The theme

continued: the opportunity the defendant saw in 2011 was "an

opportunity not unlike the ones he'd been taking for years,

since [the victim] was six." The prosecutor went on to detail

the victim's account of each of the acts, charged as well as

uncharged, and to attack the defendant's account of the same.

Although the statements were undoubtedly grounded in the

evidence at trial, they nevertheless communicated to the jury

that the defendant had committed the crimes charged on numerous

occasions over a seven-year period of time.

Limiting instructions notwithstanding,5 I believe the

prejudice flowing from the detailed accounts of uncharged bad

4 While cases regarding prejudice resulting from the
admission of prior criminal convictions may be distinguished,
firsthand testimony from the victim of a crime relating the
experience of being victimized is arguably more prejudicial than
the admission of a record of a conviction, which may not be
further explained. See Commonwealth v. McGeoghean, 412 Mass.
839, 843 (1992).

5 Although I am cognizant of the presumption that jurors
follow limiting instructions, "where the evidence subject to
8

acts, consisting of the same offenses for which the defendant

stood charged, in conjunction with closing argument that

emphasized the same, likely deprived the defendant of a fair

trial. I therefore respectfully dissent.

limitations has an extremely high potential for unfair
prejudice, we have a duty to be skeptical as to the
effectiveness of limiting instructions" (citation omitted).
Commonwealth v. Elliot, 393 Mass. 824, 834 (1985).