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14-P-183 Appeals Court
COMMONWEALTH vs. JOSE VERA.
No. 14-P-183.
Worcester. March 2, 2015. - September 11, 2015.
Present: Katzmann, Milkey, & Agnes, JJ.
Evidence, Prior misconduct, Motive, Relevancy and materiality,
Information stored on computer. Internet. Rape. Indecent
Assault and Battery. Open and Gross Lewdness and
Lascivious Behavior. Obscenity, Dissemination of obscene
matter to minor. Practice, Criminal, Assistance of
counsel.
Indictments found and returned in the Superior Court
Department on August 19, 2011.
The cases were tried before David Ricciardone, J.
William A. Korman for the defendant.
Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.
KATZMANN, J. The defendant appeals from his convictions by
a Superior Court jury of six counts of rape and abuse of a child
under sixteen, G. L. c. 265, § 23; two counts of indecent
assault and battery on a child under fourteen, G. L. c. 265,
2
§ 13B; one count of open and gross lewdness, G. L. c. 272, § 16;
and two counts of dissemination of matter harmful to a minor,
G. L. c. 272, § 28. The principal issue in this appeal is
whether the prior bad act evidence of the defendant's Internet
searches for pornography involving young girls was properly
admitted, or whether it was admitted in error because it was
impermissible character or propensity evidence. We affirm.
Background. The central evidence in the case was presented
through the testimony of the victim, R.M., who was ten at the
time of trial. The victim's mother, S.G., also testified, as
well as a first complaint witness, F.C., who was the daughter of
one of S.G.'s close friends. During the period of abuse, the
victim, R.M., lived with her mother, younger brother, and
sister. The defendant was the mother's boy friend and the
father of R.M.'s sister. He did not live with the family, but
did stay overnight at their apartment "very often" and sometimes
supervised the children.
The abuse occurred over a period of several years. The
victim testified that one day when she was four years old, she
was lying on her mother's bed watching television when the
defendant approached her and placed his hands under her clothes
and inserted his fingers into her vagina. He continued the act
for several minutes and then stopped when the victim's mother
called for help with groceries.
3
When R.M. was five years old, the defendant took a bath
with her and pulled his penis out of his boxer shorts. The
defendant then began to masturbate in the tub and he forced R.M.
to rub his penis; the defendant ejaculated. The defendant told
the victim that "the white stuff" "was to make babies." S.G.
entered the bathroom and saw the defendant with an erect penis.
She asked him what he was doing and the defendant responded that
it was an accident. Another time when S.G. was away, the
defendant sat with R.M. on a living room couch and played an "On
Demand" pornographic adult movie on the television. In the
movie, the male and female participants, an attorney and client,
undressed and engaged in sexually explicit behavior. The
defendant began to "copy[] the movie" by touching R.M.'s breasts
and vagina with his tongue and fingers. When R.M. was seven or
eight years old, the defendant again entered the living room
while R.M. was watching television. The defendant sat on the
couch, pulled down his pants, and forced R.M.'s mouth onto his
penis. The assault lasted for ten minutes. The last sexual
assault happened in the defendant's apartment when R.M. was
eight years old. R.M. was watching a children's movie in the
defendant's bedroom when her brother discovered an adult digital
video disc (DVD) with a nude woman on the cover. The defendant
made R.M.'s brother replace the children's movie "Thomas the
Train" with the adult movie, and then he removed R.M.'s brother
4
from the room. The defendant then laid down on the floor with
R.M. and began to copy the sexually erotic scenes with R.M.,
which included indecently touching her and raping her.1
The victim's mother testified that there was a desktop
computer in the living room of her home and that only she and
the defendant had access to the Internet pass code. Michael
Kalmbach, a digital forensic specialist, testified that he
conducted a forensic examination of the computer, which
extracted a history of Internet searches involving young girls.
1
The incidents that were the bases for the indictments were
categorized by the Commonwealth in its closing argument as
follows:
"I would ask you to find the defendant guilty of all
the indictments before you: Six counts of rape of a child,
that first incident in the bedroom, where he got in bed
with her, he put his finger inside her vagina; the next
incident on the couch, where he put his finger inside her
vagina; the incident on the couch, where he put his penis
inside her mouth; the last incident, where he put his
finger inside her vagina, his tongue inside her vagina and
his penis inside her vagina; two counts of indecent assault
and battery for touching her breasts and her vagina on the
outside; dissemination of harmful matter to a minor, the
two videos, the female lawyer and her client that go
outside and take each other's clothes off and touch each
other; the other video that her brother finds, that the
defendant puts in the DVD player, where a male touches a
female by licking her breasts, touching her vagina,
inserting his finger in her vagina, inserting his tongue
and his penis inside her vagina; and open and gross
lewdness for the bathtub, for taking his penis out, putting
his hand on it and putting it in an up and down fashion in
front of [the victim]."
5
In his testimony, he identified specific sites that had been
searched on the computer.
Worcester police Detective Richard Boulette testified that
he interviewed the defendant in May, 2013, as part of an
investigation. After the defendant received Miranda warnings,
he agreed to waive his rights and provided an audio-video
recorded statement, which was played in redacted form for the
jury and entered in evidence. In the interview, the defendant
said that he watched the younger children often but that it was
rare that he ever babysat R.M. (notwithstanding the fact that he
had been in a four-year relationship with her mother and had
stayed overnight in the same house frequently). With respect to
the bathtub incident, the defendant claimed that his penis
accidentally fell out of his boxer shorts. He denied ever
harming the victim or engaging in any sexual contact, and first
said that he did not watch pornography, but then said that he
did watch it, but only at his friends' houses. Regarding the
pornographic DVD, he remembered that R.M.'s younger brother had
found a DVD, but said that he (the defendant) was only holding
it for a friend, and did not show it to R.M. At one point
during the interview, the defendant said, "Come on serious? A
300 pound guy slamming the girl on the floor or whatever the
allegation." In response, the detective noted that he had not
6
told the defendant that the movie showed the girl on the floor,
but that in fact was R.M.'s allegation.
Dr. Rebecca Moles, a child abuse pediatrician, testified
that she had examined the victim when she was eight years old.
She testified that the examination was normal for an eight year
old, but that "a normal examination does not rule out that
penetration occurred or that sexual abuse has occurred."
The defendant did not testify at trial. In closing
argument, defense counsel characterized the victim's allegations
against the defendant as pure fabrication created in a desperate
effort to get him out of the household in which she lived. He
said, "This was an act of a young girl, a sad, young girl, who
was sick and tired of Jose Vera fighting with her mother,
fighting with her family, and fighting with her and her
siblings." Seeking to further cast doubt on the victim's
charges, defense counsel argued that although the victim claimed
to be "brutal[l]y sexually assaulted from the time that she was
four years old to eight years old," she delayed in raising her
allegations until the end of the abuse. He also pointed to what
he believed were incredible aspects of the victim's allegations
including the bathtub incident, and, regarding the movie and
DVD, suggested that the victim knew her mother's password to
view "On Demand" movies. He suggested that although the victim
viewed the movie she described, as well as the DVD, she did not
7
view them with the defendant, and, further, that her report of
abuse attributed to the defendant the actions she had viewed in
the movie and DVD. Defense counsel also asked the jury to focus
on the defendant's repeated statements during the recorded video
interview denying that he had perpetrated any abuse. Defense
counsel further sought to create a reasonable doubt by pointing
to the testimony of the victim's pediatrician, who said that
there were no indications of sexual assault.
Discussion. 1. Internet searches. The defendant argues
that the Internet searches, which were admitted over his
objection, were irrelevant and constituted prior bad acts that
constituted impermissible character or propensity evidence. He
contends that the judge erred in allowing that evidence, and
that he is entitled to a new trial.
As has been noted, the victim's mother testified that there
was a desktop computer in the living room of her home and that
only she and the defendant had access to the Internet pass code.
The investigating detectives removed the computer from the home
and brought it to the New England State Police Information
Network (NESPIN). Michael Kalmbach, a digital forensic
specialist for NESPIN, conducted a forensic examination of the
computer. He used several software programs to extract a
history of Internet searches that had been performed on the
computer, and discovered a number of searches involving young
8
girls. In his testimony, he identified specific searches,
including: "young raw porn," "teen TV porn," "young playground
porn," "hot teen porn," and "first time home teen porn."2
Kalmbach opined that someone had used the computer by typing and
searching those terms.3 The defendant objected to admission of
evidence of these searches, arguing that they were prior bad
acts and should be excluded because they were extremely
prejudicial and constituted impermissible character or
propensity evidence.
2
Other searches that Kalmbach testified to finding
included: "young pub porn," "young home raw porn," "young girs
[sic] life fucking porn," "young frist [sic] time homemade
porn," "young bup porn," "teen sleeping ponr [sic]," "sleeping
young porn," "real TV porn," "hot cute teen porn," "homemade
teen hidden sex tape porn," "hidden cameras porn," "first time
teen fuck porn," "bing cook teen teen porn," "angle teen porn,"
"young girls live fucking porn," "young first time homemade
porn," "young playground," and "teen real TV porn."
3
The identity of the person who conducted the Internet
searches was disputed at trial. The victim's mother, S.G.,
voluntarily provided the computer for investigation. Kalmbach
testified that there was no way to identify who the actual user
was at the time of the Internet searches. S.G. testified that
she had not conducted the searches, and, during his police
interview, the defendant denied conducting the searches. The
jury were entitled to credit the mother's testimony that only
she and the defendant had access to the pass code, and that she
had not conducted the Internet searches. Based on the evidence
at trial, the jury reasonably could have inferred that the
defendant was the one who conducted the searches. On appeal,
the defendant makes no argument that the computer searches were
conducted by the victim's mother. Compare Commonwealth v.
Carey, 463 Mass. 378, 388 (2012). The Internet searches
ultimately were admitted as prior bad act evidence to show
intent, lack of mistake, and motive.
9
As advanced in its motion in limine and later at trial, the
Commonwealth noted that the defendant was charged with various
sex crimes against the minor victim, including multiple
incidents where the defendant "sexually assaulted [the victim]
by touching her breasts, touching her vagina on the inside and
outside, and inserted his penis inside her vagina, . . . [and]
showed her adult pornography."4 The Commonwealth argued that the
defendant told police that the victim misconstrued his actions,
that his penis was only exposed accidentally, and that he had
never watched pornography in the home where the victim lived.
Based upon the nature of the indictments and the defendant's
denials to police, the Commonwealth argued that the defendant's
Internet Web site searches for pornography involving young girls
were relevant and probative, not to prove bad character, but
rather to establish motive, state of mind, intent, and lack of
mistake or accident.
While acknowledging that he was "clearly mindful" of the
prejudicial impact to the defendant, the judge concluded that
evidence of "a person who specifically seeks out father/daughter
pornography websites" was relevant and probative of the
4
The motion in limine's statement of facts also averred
that the victim "describe[d] incidents where the Defendant would
show her pornographic websites." However, in arguing the
motion, the Commonwealth acknowledged that none of the charges
against the defendant were based on this allegation.
10
defendant's motive. The judge found that the words used by the
defendant to search the Web sites "tend to show a lack of
mistake and a particular intent on the part of [the defendant]."
The searches that were actually admitted at trial involved
"young girl pornography." The judge ruled that "[o]n the
totality of the circumstances, it does tend to fit the bill of
our case law with regard to lack of mistake, intent, motive and
modus operandi, and further goes to his credibility in terms of
the statement that he made, where under all the circumstances he
denies use of pornography, let alone child pornography."
The judge provided limiting instructions during the trial
in connection with the testimony about the Internet searches for
pornography involving young girls. He issued one limiting
instruction prior to Kalmbach's testimony and another in the
final charge. In the final charge, which was similar to the
first limiting instruction, the judge provided the following
instructions to the jury:
"You may not take [the Internet searches] as a
substitute for proof that the defendant committed the
crimes charged, nor may you consider [them] as proof that
the defendant has a criminal personality or bad character.
But you may consider [them] solely on the limited issue of
motive, state of mind, intent, plan, or absence of mistake
or accident on the part of the defendant. You may not
consider this evidence for any other purpose.
Specifically, you may not use it to conclude that if the
defendant committed [sic] these Internet searches that he
must also have committed these charges [sic]."
11
"It is well settled that the prosecution may not introduce
evidence that a defendant has previously misbehaved, indictably
or not, for the purpose of showing his bad character or
propensity to commit the crime charged." Commonwealth v.
Copney, 468 Mass. 405, 412 (2014) (citation omitted).
Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011).
However, "[s]uch conduct . . . may be admissible for other
purposes, such as to show a 'common scheme, pattern of
operation, absence of accident or mistake, identity, intent, or
motive.'" Ibid., quoting from Commonwealth v. Helfant, 398
Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2), at 44
(2015). Where evidence is relevant for one of those purposes --
under the "more exacting standard" applied to "other bad acts"
evidence because such evidence is "inherently prejudicial,"
Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014) -- it
should be excluded if its "probative value is outweighed by the
risk of unfair prejudice to the defendant, even if not
substantially outweighed by that risk." Ibid.
With respect to the charge of open and gross lewdness,
stemming from the bathtub incident, the defendant claimed his
exposure was accidental. He repeatedly told the police that his
genitalia were accidentally exposed while he was in the bathtub
with the victim. Evidence of Internet searches for young girl
pornography is relevant here because it is highly probative of
12
the defendant's intent and the lack of innocent mistake in
exposing his genitals to a young girl. See Commonwealth v.
Wallace, 70 Mass. App. Ct. 757, 765 (2007) (where the defendant
claimed that the touching of a young girl's breast was
accidental, items found in the defendant's automobile, including
small-sized girls' or womens' underwear, photographs of clothed
young girls playing at outdoor locations, photographs of nude
adults engaged in sexual activity, and two pornographic
magazines entitled "Pure Eighteen," which contained pictures of
teenage girls, were properly admitted because they were
"substantive evidence of the defendant's voyeuristic interest in
sexual matters and young females"). The evidence in Wallace was
"admissible to show [the defendant's] sexual intent, predatory
motive, and intentional rather than accidental touching of the
victim," id. at 758, and was properly admitted for those reasons
here as well.
With respect to the other charges -- rape and abuse of a
child, indecent assault and battery on a minor, dissemination of
matter harmful to a minor -- the defendant denied all
allegations in his interview with the police. The defendant
repeatedly stated that he did not engage in sexual behavior with
the victim and that he had no desire to harm her. The computer
search history, however, was admitted in evidence to prove that
the defendant entered the word "porn" together with "young,"
13
"playground," "teen," "girls," and other similar themes, and
established that the defendant actively and purposely sought
sexually explicit material relating to young girls.
The contested evidence here is relevant. "The case law is
particularly clear that evidence of uncharged sexual misconduct,
when not too remote in time, 'is competent to prove an
inclination to commit the [acts] charged . . . and is relevant
to show the probable existence of the same passion or emotion at
the time in issue.'" Commonwealth v. Hanlon, 44 Mass. App. Ct.
810, 817-818 (1998), quoting from Commonwealth v. King, 387
Mass. 464, 470 (1982). "That the [contested evidence] may . . .
have an inflammatory effect on the jury does not render [it]
inadmissible as long as [it] possess[es] evidentiary value on a
material matter." Commonwealth v. Carey, 463 Mass. 378, 389
(2012), quoting from Commonwealth v. Olsen, 452 Mass. 284, 294
(2008). "Evidence is relevant if it has a 'rational tendency to
prove an issue in the case,' . . . or render a 'desired
inference more probable than it would be without the
[evidence].'" Commonwealth v. Keo, 467 Mass. 25, 32 (2014),
quoting from Commonwealth v. Sicari, 434 Mass. 732, 750 (2001),
cert. denied, 534 U.S. 1142 (2002). The evidence does not need
to be conclusive of motive in order to be admissible.
Commonwealth v. St. Germain, 381 Mass. 256, 271 (1980). If
14
evidence "merely suggests rather than 'clearly shows' a motive,"
it may still be admissible. Ibid.
The defendant argued that the prejudicial effect of the
evidence far outweighed its probative value. We disagree,
acknowledging, as the judge did below, that the evidence was
prejudicial, but admissible because it was highly probative of
the defendant's intent and motive. Here, the search for
pornography involving young girls is "competent to prove an
inclination to commit the [acts] charged . . . and is relevant
to show the probable existence of the same passion or emotion at
the time in issue." Commonwealth v. Hanlon, 44 Mass. App. Ct.
at 817 (citation omitted). It was also admissible as
"substantive evidence of the defendant's voyeuristic interest in
sexual matters and young females." Commonwealth v. Wallace, 70
Mass. App. Ct. at 765. See id. at 758 (evidence was "admissible
to show his sexual intent [and] predatory motive"); Commonwealth
v. Bradshaw, 86 Mass. App. Ct. 74, 78-80 (2014) (judge, after
carefully engaging in the required balancing of prejudice and
probative value did not abuse his discretion in admitting in
evidence the defendant's statement that he had been having
desires for boys ranging from age nine years to fourteen years -
- which included the age of the alleged victim -- because the
statement was probative of a motive to engage in the alleged act
15
and of the defendant's state of mind at the time of the
incident).5
"We entrust questions of relevancy and prejudicial effect
to the sound discretion of the trial judge." Commonwealth v.
Carey, 463 Mass. at 388. We uphold the judge's decision unless
we conclude that he "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."
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation
and citation omitted).
We conclude that the judge did not abuse his discretion in
allowing the evidence; he carefully engaged in the balancing of
probative value versus prejudicial effect. See Commonwealth v.
Bradshaw, 86 Mass. App. Ct. at 79. The judge was selective in
what he allowed, excluding several Internet searches because
5
We are unpersuaded by the defendant's contention that the
prior bad act evidence was rendered irrelevant because, when the
prosecutor questioned the victim about the "youngporn.com" Web
site ("Did the defendant ever show you anything on the
computer?"), the victim answered, "He didn't, like, directly
show me." The prosecutor attempted to make an offer of proof
that the expected testimony was only one of multiple searches,
but he then voluntarily agreed to "move on" from the testimony.
Quite apart from the Web sites the victim may or may not have
seen, the searches by the defendant were relevant and probative
to establish the defendant's lack of mistake, intent, motive,
and state of mind when he committed the sexual crimes. See
Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 327 (1996)
("Still further and most important, [prior bad acts occurring
during the same week as the alleged crime] could be taken as
illustrative of the defendant's mental state at the time").
16
they were too inflammatory, where they included the term "rape,"
compare id. at 80, and excluding another search for relevancy
reasons. He also ordered the prosecutor to reduce the number of
searches entered in evidence -- further indication that he was
being "commendably sensitive to the potential for undue
prejudice." Commonwealth v. Helfant, 398 Mass. at 225.
Moreover, the limiting instructions throughout the trial
instructing the jurors to use the evidence only for the proper
purposes of showing the defendant's motive, state of mind,
intent, plan, or absence of mistake or accident were sufficient
to prevent undue prejudice. See Commonwealth v. Anderson, 445
Mass. 195, 214 (2005). "We presume that the jury followed the
judge's instruction." Commonwealth v. Pillai, 445 Mass. 175,
190 (2005).
Furthermore, the Internet search evidence especially
contradicts the defendant's denial of the allegations in the
indictments, as well as his assertions that he never watched
pornography, that the victim was fabricating the crimes, and
that "he never had one iota of intent to harm" her. The judge
allowed the testimony to come in for the additional purpose of
refuting the defendant's denials. This purpose was proper as
well. See, e.g., Commonwealth v. Maimoni, 41 Mass. App. Ct.
321, 327 (1996) (evidence of prior bad acts "admissible on the
Commonwealth's behalf for the elementary purpose of countering
17
the defendant's protestations following [the victim's]
disappearance that he would not sail accompanied only by a woman
not his wife").
Finally, even if it was error to allow the Internet search
evidence, when viewed in context of the entire case, it is
unlikely to have unduly prejudiced the defendant. Other
evidence the jury heard included significantly more inflammatory
and graphic testimony from the victim and her mother about
sexual assaults and rape, beginning when the victim was only
four years old and ending when she was eight years old. The
jury heard testimony about forcing the victim to watch and
replicate pornography, and bathing with the young victim with
his penis exposed, while forcing her to rub his penis, resulting
in ejaculation. The jury also saw a one and one-half hour
interview with the defendant from which the jury could infer
guilty knowledge.6 We can say with fair assurance that revealing
6
For example, the taped interview included the following:
When questioning the defendant about the pornographic DVD and
his conduct associated with its viewing, the detective asked,
"Why would she make this up? . . . She claimed how in the movie,
the guy had licked the lady and licked the vagina and . . . ."
The defendant, interrupting him, stated, "You're gonna try to
say that I did that to her." The detective responded
affirmatively, "That's what she says. She says you did
everything in that movie to her, you enacted that." In
addition, as noted earlier, at one point in the interview the
defendant asked incredulously about a 300 pound man slamming a
girl on the floor, and the detective answered that that, too,
was the allegation.
18
the various searches the defendant conducted on the Internet did
not "substantially sway[]" the jury. Commonwealth v. Flebotte,
417 Mass. 348, 353 (1994).
2. Ineffective assistance of counsel claim. We briefly
address and reject the defendant's ineffective assistance of
counsel claim. The defendant asserts this claim in his direct
appeal rather than through the preferred method of a motion for
new trial accompanied by affidavits. See Commonwealth v. Diaz,
448 Mass. 286, 289 (2007). He argues that his attorney rendered
ineffective assistance of counsel when he questioned Kalmbach,
the NESPIN expert, as to the date of the Internet searches
because the questioning opened the door to the revelation of
other Internet searches.7 "Because the defendant raises [this]
claim[] for the first time on direct appeal, [its] factual basis
must appear 'indisputably on the trial record' for us to resolve
[it]." Commonwealth v. Dargon, 457 Mass. 387, 403 (2010),
7
The Commonwealth had agreed to limit its questioning
regarding specific Internet searches to one date, February 26,
2011, and was careful to avoid asking questions on direct
examination regarding the specific date because there had been
searches on a broad range of dates. On cross-examination,
defense counsel elicited that the searches to which Kalmbach
testified all occurred on February 26. Because the judge
determined that defense counsel's "specific question regarding
dates [was asked] . . . to make it sound like this was a very,
very isolated, maybe singular incident, at a time when maybe the
defendant wasn't even in the home," he ruled that the
Commonwealth on redirect could elicit that the Web site searches
were not limited to the ones testified to in court, but "there
were others . . . [i]n the dozens."
19
quoting from Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Here, the record includes substantial discussion about the line
of questioning now in issue and suggests that engaging in this
questioning was a tactical decision made by defense counsel.
Cocounsel explained that a reason for these questions was to
show that the defendant could not have conducted the Internet
searches Kalmbach testified to because the defendant was not in
the home on that date. She declared, "[I]t was certainly the
correct decision for us, and not intentionally to be
misleading," but rather to alert the jury to the fact that the
defendant did not live there. On our review of the record, we
conclude that counsel's choice was not manifestly unreasonable,
and that the defendant was not deprived of a substantial ground
of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96
(1974).
Judgments affirmed.