Commonwealth v. Coates

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14-P-1547 Appeals Court

COMMONWEALTH vs. RYAN COATES.

No. 14-P-1547.

Bristol. March 9, 2016. - July 15, 2016.

Present: Cypher, Cohen, & Neyman, JJ.

Indecent Assault and Battery. Obscenity, Dissemination of
matter harmful to minor. Practice, Criminal, Required
finding, Identification of defendant in courtroom.
Evidence, Identification, Expert opinion, Relevancy and
materiality. Witness, Expert. Identification. Internet.

Indictments found and returned in the Superior Court
Department on June 21, 2012 and August 9, 2012.

The cases were tried before D. Lloyd Macdonald, J.

Alexei Tymoczko for the defendant.
Shoshana Stern, Assistant District Attorney, for the
Commonwealth.

CYPHER, J. A jury convicted the defendant, Ryan Coates, of

three counts of indecent assault and battery on a child under

the age of fourteen, see G. L. c. 265, § 13B, and one count of

disseminating matter harmful to a minor, see G. L. c. 272, § 28.

On appeal, the defendant argues that the judge erred in
 2

excluding expert testimony that the defendant's personality was

inconsistent with the profile of a sex abuser, the

Commonwealth's graphic description of pornography was unduly

prejudicial and created a substantial risk of a miscarriage of

justice, and the Commonwealth presented insufficient evidence of

identity to support the conclusion beyond a reasonable doubt

that the defendant was the person who committed the indecent

assaults and batteries.1 Finding no merit in the defendant's

assertions, we affirm.

Background. We summarize the facts that the jury could

have found, reserving some details for later discussion of the

issues raised by the defendant.

The victim, A.E., was five years old at the time of trial.

When A.E. was two years old, the defendant, who was her mother's

boy friend, moved in with her and her mother. The defendant was

regarded as a father figure to A.E.; the three ate meals

together and went on family outings; and the defendant shared

parenting duties with A.E.'s mother, putting A.E. to bed at

night, picking her up from day care, assisting in her toilet

training, and babysitting her when her mother was not at home.

Sometime between December, 2009, and May, 2012, before A.E.

was toilet trained, the defendant began to sexually assault her.

1
The defendant asserts also that his trial counsel was
ineffective for failing to object to the only evidence of the
identity of the defendant as the perpetrator.
 3

On occasions when A.E.'s mother was not at home, the defendant

touched A.E.'s anus with his penis and stood behind her, rocking

back and forth.2 These incidents took place multiple times and

at different locations in the house, "[s]ometimes upstairs" in

the mother's bedroom, "and sometimes in the living room." On

one occasion, A.E. sat on the couch in the living room with the

defendant and watched a video recording on the computer showing

a naked man "massaging" a naked woman with his penis. After

watching the recording, the defendant performed the same acts on

A.E. On another occasion, as A.E. lay on her mother's bed

watching television, the defendant tucked a pillow under her

chin and then stood behind her, "[g]oing back and forth," with

his hands placed "[o]n [her] bum." A.E. later told her mother

that "her bum was all sticky and she didn't like it and [the

defendant] had to wipe her." A.E. testified that the

defendant's "massaging" hurt her and made her sad, and that she

cried and told him to stop.

2
Evidence conflicted as to whether penetration occurred.
On the stand, A.E. testified that the defendant's penis was
inside her anus. However, in the forensic interview, the
recording of which was not made part of the appellate record,
A.E. said that the defendant's penis was on the outside. In
addition, the examining physician found no physical evidence of
trauma. This factual ambiguity may be reflected in the jury's
determination that the defendant was guilty of the lesser
included offense of indecent assault and battery on a child
under the age of fourteen.
 4

When A.E. was four years old, she reported the abuse to her

mother, who testified at trial as the first complaint witness.

According to the mother's testimony, on May 9, 2012, after she

congratulated her daughter for using the toilet and wiping

herself, A.E. responded, "[The defendant] would be proud of me,"

and proceeded to tell her mother that "[the defendant] massaged

[her] bum with his pee-pee to get the poop out." To illustrate,

A.E. made a humping motion and said, "One time [her] bum hit his

stomach." After hearing A.E.'s account, her mother took her

over to a friend's house to spend the night away from the

defendant. The following day, A.E.'s mother told the defendant

to leave the family's home, and A.E. did not see the defendant

again until more than one year later, on the day of trial.

Sufficiency of identity evidence. The defendant argues

that there was insufficient evidence of his identity as the

assailant to support his conviction of the three counts of

indecent assault and battery. We review any error for a

substantial risk of miscarriage of justice. Commonwealth v.

Doty, 88 Mass. App. Ct. 195, 198 (2015).

On a claim of insufficient evidence, we review the evidence

in the light most favorable to the Commonwealth to determine

whether a rational juror could find all of the elements of the

charged offense beyond a reasonable doubt. Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial
 5

evidence is competent to establish guilt beyond a reasonable

doubt." Commonwealth v. Murphy, 70 Mass. App. Ct. 774, 777

(2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533

(1989). "An inference drawn from circumstantial evidence 'need

only be reasonable and possible; it need not be necessary or

inescapable.'" Ibid., quoting from Commonwealth v. Merola,

supra. "Circumstantial evidence may be coupled with 'inferences

drawn therefrom that appear reasonable and not overly remote' to

establish guilt." Commonwealth v. Tavares, 87 Mass. App. Ct.

471, 473 (2015), quoting from Commonwealth v. Dussault, 71 Mass.

App. Ct. 542, 546 (2008).

The defendant's sufficiency challenge is based on A.E.'s

failure to identify the defendant in the court room as the

person about whose indecent assault and battery she was

testifying.3 The Commonwealth was required to prove that the

defendant, Ryan Coates, was the same Ryan named by A.E. as her

assailant. See Commonwealth v. Koney, 421 Mass. 295, 301-302

(1995). "[B]ald identity of name without confirmatory facts or

3
There was evidence that A.E. was five years old at the
time of trial, that one year had passed since she last saw the
defendant, that the defendant wore a beard when he lived with
A.E. and her mother, and that he appeared at trial clean-shaven.
The jury were entitled to consider A.E.'s failure to identify
the defendant in their assessment of her credibility, and
reasonably could have inferred that her inability to provide an
in-court identification did not preclude the defendant's
identity as the assailant. See Commonwealth v. Johnson, 470
Mass. 389, 396 (2015).
 6

circumstances is insufficient to prove identity of person."

Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979).

"Although very slight evidence might have been enough, at least

something more than identity of names was necessary." Lodge v.

Congress Taxi Assn., 340 Mass. 570, 575 (1960).

The evidence showed that "Ryan" lived with A.E. and her

mother, watched A.E. when her mother was out, helped A.E. with

her toilet training, and moved out after A.E. reported the abuse

to her mother. The defendant himself later testified and

acknowledged that he lived with A.E. and her mother during the

time period of the alleged abuse, babysat A.E. when her mother

was not home, participated in A.E.'s toilet training, and moved

out of the family's home after A.E.'s mother confronted him with

the allegations of abuse. Furthermore, the defendant's

description of putting A.E. to bed in her mother's bedroom,

where he gave her a pillow and allowed her to watch television,

corresponded to A.E.'s account of the circumstances surrounding

an instance of abuse. "It is not necessary that any one witness

should distinctly swear that the defendant was the man, if the

result of all the testimony, on comparison of all its details

and particulars, should identify him as the offender."

Commonwealth v. Doe, supra at 300, quoting from Commonwealth v.

Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979).
 7

Presented with this circumstantial evidence, the jury could

draw the inferences necessary to determine the identity of the

defendant beyond a reasonable doubt.4 Commonwealth v. Tavares,

87 Mass. App. Ct. at 475 (circumstantial evidence sufficed to

prove identity).

Exclusion of defendant's profile evidence. The defendant

claims that the judge abused his discretion by excluding from

evidence Dr. Fabian Saleh's expert opinion that the defendant

did not fit the profile of a pedophile. The defendant raised

his claim of error at a motion in limine hearing and again at

trial, preserving the issue for appeal under the prejudicial

error standard. Commonwealth v. Deloney, 59 Mass. App. Ct. 47,

54 (2003).

Prior to trial, Dr. Saleh met with the defendant for six

and one-half hours, interviewed him, reviewed his medical

records and police reports, and gave him questionnaires designed

to test his psychosexual predilections. After evaluating the

defendant, the doctor concluded that he did not fit the profile

of a pedophilic sex offender. Dr. Saleh also reviewed a

recording of the Sexual Abuse Intervention Network (SAIN)

4
In light of our determination that evidence independent of
the Sexual Abuse Intervention Network forensic interview, which
was not included in the appellate record, sufficed to support
the verdicts, we need not decide whether the unchallenged
introduction of the interview was error, nor whether the
defendant's trial counsel was ineffective for his failure to
challenge its admission.
 8

forensic interview of A.E. At trial, the doctor testified that

the SAIN interview was compromised by suggestive conduct on the

part of the interviewer toward A.E.

Following a hearing on motions in limine, the judge ruled

that Dr. Saleh's testimony concerning the psychosexual profile

of the defendant was inadmissible.5 Citing Commonwealth v. Day,

409 Mass. 719 (1991), and Commonwealth v. Trowbridge, 36 Mass.

App. Ct. 734 (1994), S.C., 419 Mass. 750 (1995), the judge held

that "the use of criminal profiles as substantive evidence is

inherently prejudicial. It substitutes generality for

specificity and preconceptions for evidence."

"The admission of [expert testimony] is largely within the

discretion of the trial judge and he will be reversed only where

the admission constitutes an abuse of discretion or error of

law." Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539

(2012), quoting from Commonwealth v. Johnson, 410 Mass. 199, 202

(1991). "[A] judge's discretionary decision constitutes an

abuse of discretion where we conclude the judge made 'a clear

5
Despite the judge's decision to preclude the profile
testimony, Dr. Saleh testified on cross-examination that
"[p]edophilic sex offender doesn't just -- it doesn't happen in
one day, it doesn't occur overnight. You have to have behaviors
and antecedents suggesting pedophilic interest. There's nothing
whatsoever in this case." The judge overruled the
Commonwealth's objection to the statement and defense counsel
reiterated the doctor's conclusion ("I see no evidence of
pedophilia in this man") twice during closing argument.
Consequently, the defendant received more than he was entitled
to under our law of evidence.
 9

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).

Here, the judge exercised sound discretion and based his

decision to exclude the criminal profile testimony of Dr. Saleh

on a correct interpretation of our law of evidence. Cf.

Commonwealth v. Kulesa, 455 Mass. 447, 455 (2009) (decision

based on erroneous interpretation of law was not exercise of

discretion).

Although the defendant characterizes the admissibility of

the evidence proffered in this case as an issue of first

impression in Massachusetts, acknowledged but passed over by the

Supreme Judicial Court in Commonwealth v. Trowbridge, 419 Mass.

at 756-757, we find that our law of evidence is sufficiently

well developed that the trial judge could, and did, draw upon

clear authority to determine that profile evidence is

inadmissible. In Commonwealth v. Federico, 425 Mass. 844, 850

(1997), the Supreme Judicial Court provided guidance for the use

of expert testimony in the context of sex abuse cases and, in

language apposite to this case, the court held that "with

respect to the accused, the expert may not provide profiles or

testify as to the typical attributes or characteristics of the

perpetrators of child abuse."
 10

The prohibition against profile testimony arises from the

court's recognition that such evidence is fundamentally

irrelevant. "A criminal trial is by its very nature an

individualized adjudication of a defendant's guilt or legal

innocence. Testimony regarding a criminal profile is nothing

more than an expert's opinion as to certain characteristics

which are common to some or most of the individuals who commit

particular crimes." Commonwealth v. Day, 409 Mass. at 723.

"[T]he mere fact that a defendant fits the profile does not tend

to prove that [he committed the crime charged]." Commonwealth

v. Caraballo, 81 Mass. App. Ct. at 539, quoting from

Commonwealth v. Frias, 47 Mass. App. Ct. 293, 296 (1999).6

That the evidence in this case was proffered in the form of

a "negative" profile -- whereby the defendant sought to

demonstrate that he did not fit the profile of a sex abuser --

does not compel a different result. Although the profile was

offered to show that the defendant did not fit the type, the

6
Courts in other states have followed similar reasoning in
holding profile evidence inadmissible on the ground of
irrelevance, as reflected in the cases collected by the Supreme
Judicial Court in Commonwealth v. Day, supra (citing "State v.
Brown, 370 So. 2d 547, 554 [La. 1979] [drug courier profile
'does not tend to prove that this defendant is guilty of the
offense charged, nor does it explain any relevant fact with
regard to guilt or innocence']; Duley v. State, 56 Md. App. 275,
281 [1983] [child battering profile 'totally irrelevant because
it does not tend to prove that (the defendant) committed the
acts of abuse attributed to him']; State v. Maule, 35 Wash. App.
287, 293 [1983] ['"relevancy of (such) evidence is not
discernible']).
 11

effect is ultimately identical. Implicit in the defendant's

assertion that he does not match a criminal profile is the

assumption that such a profile would be probative if introduced

to prove that someone who matched the profile would be more

likely to have committed the crimes. Our cases instruct

otherwise. See Commonwealth v. Day, supra (evidence concerning

a "child battering profile" does not meet relevancy test);

Commonwealth v. Poitras, 55 Mass. App. Ct. 691, 694 (2002)

("admission of [profile] testimony . . . has been condemned by

the appellate courts of this Commonwealth as error, especially

where the particular characteristics the expert testified to

could be taken by the jury to identify the defendant as fitting

the profile and therefore more likely than not to have committed

the crime"); Commonwealth v. Deloney, 59 Mass. App. Ct. at 57

("It is a fundamental principle of our system of criminal

justice that we do not convict people of crimes on the basis of

statistics or models"); Commonwealth v. Caraballo, supra

(criminal profile evidence "does not tend to prove that [the

defendant committed the crime charged]"); Commonwealth v. Aspen,

85 Mass. App. Ct. 278, 285 (2014) (appellate counsel ineffective

for failing to raise erroneous admission of profile testimony).

The defendant likens the criminal profile testimony to

character evidence, and argues that, as with a reputation for

good character, the proffered profile evidence should be
 12

permitted to establish a pertinent character trait: that the

defendant is not a pedophile, and that he therefore is less

likely to have sexually abused A.E. According to time-honored

practice, a defendant is entitled to introduce evidence of his

own good character to establish that he is not the type of

person to commit the charged offense. The rule rests on the

premise that "[a] man of good character is unlikely to be guilty

of a crime involving moral turpitude." Commonwealth v. Nagle,

157 Mass. 554, 554 (1893). See generally Mass. G. Evid.

§ 404(a) note (2016). In urging the court to adopt his analogy,

the defendant elides an essential distinction between

permissible character evidence and impermissible profile

evidence. "Character is a generalized description of one's

disposition, or of one's disposition in respect to a general

trait, such as honesty, temperance, or peacefulness."

Commonwealth v. Bonds, 445 Mass. 821, 829 (2006), quoting from

Figueiredo v. Hamill, 385 Mass. 1003, 1004 (1982). By contrast,

criminal profile evidence is a composite of "certain

characteristics which are common to some or most of the

individuals who commit particular crimes." Commonwealth v.

Caraballo, supra, quoting from Commonwealth v. Frias, 47 Mass.

App. Ct. at 296. In other words, character evidence pertains to

traits that are personal to the defendant; profile evidence

consists of characteristics exhibited by other people who have
 13

been convicted of a similar crime. In an individualized

adjudication, evidence of characteristics common to others is

not probative of the defendant's guilt or innocence.

Similar to his argument concerning character evidence, the

defendant contends that the proffered criminal profile evidence

is analogous to the psychiatric evidence that is routinely

admitted in other proceedings, and should likewise be deemed

admissible here. We find that the procedural contexts to which

the defendant refers are distinguishable from the present case.

Psychiatric evidence adduced to assess whether a defendant

is competent to stand trial or is criminally responsible for an

alleged crime serves distinct functions. "An examination to

determine competency has a 'limited, neutral purpose.' . . .

[It] does not bear on the defendant's guilt, but on his or her

current ability to understand the proceedings and participate in

the defense." Vuthy Seng v. Commonwealth, 445 Mass. 536, 545

(2005). A defendant seeking to assert lack of criminal

responsibility may offer "a psychiatric inquiry into the

existence or nonexistence of a mental disease or a defect, which

may preclude a defendant from being criminally responsible for

his actions. The primary diagnostic source in such a situation

often is that which the examiner may glean from the nature and

content of the defendant's statements." Blaisdell v.

Commonwealth, 372 Mass. 753, 759-760 (1977). See G. L. c. 123,
 14

§ 15(a). The results of these psychiatric examinations address

only the defendant's own mental condition, which profile

evidence is useless in assessing.

Psychiatric profile evidence is admissible in the context

of sexual dangerousness hearings, sex offender registration

hearings, and involuntary commitment hearings, as a means of

predicting a defendant's conduct. "[W]hether a person suffers

from a mental abnormality or personality defect, as well as the

predictive behavioral question of the likelihood that a person

suffering from such a condition will commit a sexual offense,

are matters beyond the range of ordinary experience and require

expert testimony" (emphasis supplied). Commonwealth v. Boyer,

61 Mass. App. Ct. 582, 587-588 (2004) (sexual dangerousness

hearing), quoting from Commonwealth v. Bruno, 432 Mass. 489, 511

(2000). The determination whether a defendant poses a

substantial risk of physical harm to other persons is implicitly

a statement of probability. Commonwealth v. Nassar, 380 Mass.

908, 916 (1980) (involuntary commitment hearing). "Factors

relevant to the risk of reoffense shall include, but not be

limited to . . . (f) whether psychological or psychiatric

profiles indicate a risk of recidivism." G. L. c. 6, § 178K(1),

as appearing in St. 1999, c. 74, § 2 (sex offender registry

board guidelines). Employed for the purpose of prognostication,

a psychiatric profile may aid in assessing the likelihood that a
 15

person will someday pose a danger to himself or to others. As

we stated supra, however, a profile cannot be used to prove that

a defendant performed or did not perform some alleged wrong in

the past.

Even if we were to deem the criminal profile evidence

relevant, the defendant has not met the foundational

requirements necessary for a determination that the expert

opinion is scientifically valid.7 See Commonwealth v. Barbosa,

457 Mass. 773, 783 (2010) (setting forth foundational

requirements for expert testimony). As we noted in Commonwealth

v. Trowbridge, 36 Mass. App. Ct. at 741 (reversed on other

grounds), numerous authorities preclude such expert testimony

because the theory underlying the opinion has not been shown to

be reliable. Commonwealth v. Lanigan, 419 Mass. 15, 25-26

(1994). "There is no psychological test that validly detects

persons who have or will sexually abuse children. . . . Thus,

it is appropriate to conclude that there is no profile of a

'typical' child molester." Myers on Evidence of Interpersonal

Violence § 6.28, at 587 (5th ed. 2011), and cases cited. There

was neither error of law nor abuse of discretion in the judge's

7
Because the judge determined that criminal profile
evidence was categorically inadmissible, no Daubert hearing was
held to assess the reliability of the theory underlying the
proffered expert testimony. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993).
 16

decision to exclude expert testimony that the defendant did not

match the profile of a pedophile.

Admission of pornographic titles and Internet search terms.

The defendant next argues that the judge abused his discretion

by allowing the Commonwealth to introduce testimony regarding

the titles of pornographic files and the words used in Internet

searches found on a laptop computer used by the defendant. The

defendant contends that the admission of an excessive amount of

inflammatory evidence was error because any relevance it may

have had was outweighed by its undue prejudice. Because the

defendant did not object to the challenged testimony at trial,

we review to determine whether any error created a substantial

risk of a miscarriage of justice. Commonwealth v. Halsey, 41

Mass. App. Ct. 200, 203 (1996).

A laptop computer, owned by A.E.'s mother, was stationed in

the family's living room where the defendant regularly used it.

The defendant was proficient in computer operations, and helped

A.E.'s mother, who described herself as "[c]omputer illiterate,"

to upload photographs onto the device. The defendant also

installed a computer cleaning and optimization program,

CCleaner, which, according to his testimony, he used to wipe the

hard drive at the end of each session.

The defendant and A.E.'s mother both testified that the

defendant watched pornography on the computer often. On two
 17

occasions, A.E.'s mother viewed pornography with the defendant;

however, she never accessed pornography herself and expressed

discomfort with the defendant's pornography viewing habit. On

May 6, 2012, suspicious that the defendant had been watching

pornography on the computer while she and A.E. were asleep

upstairs, A.E.'s mother confronted the defendant, who admitted

that he had been viewing pornography. On May 8, 2012, the

defendant activated the CCleaner program at 1:00 P.M., and then

again at 5:00 P.M., deleting more than 2,000 files from the

computer.

After A.E. reported that the defendant had sexually abused

her and had exposed her to pornography, her mother voluntarily

handed over the computer to a police detective, who delivered it

for examination to the digital forensic laboratory (laboratory)

at the Office of the Attorney General. At trial, David

Papargiris, a digital forensic specialist and former director of

the laboratory, testified that he had conducted a forensic

examination of the computer and had recovered approximately

1,400 image files and nineteen video files that he characterized

as pornographic in nature.8 The jury heard that some of those

8
Referring to examples drawn from a report entered in
evidence, Papargiris testified that he found files titled:
"Step-dad fucks stepdaughter part 1," "Step-dad fucks
stepdaughter part 2," "Russian anorexic teen girl fucked by
father-in-law," "Father fucks tiny teen stepdaughter," "Little
cutie Kasey gets her first anal," "Father fucks tiny
 18

video files depicted adults engaging in anal sex or contained

references to anal sex in their titles. In addition, Papargiris

testified that he had identified the specific Internet search

terms: "Tiny daughter anal," and "Tiny daughter and mindless

behavior." According to Papargiris, whoever performed the

Internet searches had affirmatively typed in those terms.

"All evidence, including that of a violent or sexual

nature, must meet the threshold test of relevancy."

Commonwealth v. Carey, 463 Mass. 378, 387 (2012). To be

relevant, evidence "must have a 'rational tendency to prove an

issue in the case,'" or "render[] the desired inference more

probable than it would have been without it." Commonwealth v.

Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000), quoting from

Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).

The search terms entered into the computer and the names of

the files that had been selected for viewing were clearly

relevant and probative to establish the defendant's interest in

stepdaughter," "Stepfather fucks his young blonde teen," "Min
dad fucked young teen daughter on table," "Father and daughter
taboo sex," "Daughter Ashlyn . . . Rae seduces mature mom and
old daddy into family taboo sex," "Hot tiny Spanish spinner babe
Lily gets an anal creampie," "German amateur Nikita total anal,"
"Innocent teen girl takes a huge dick up her tiny asshole,"
"Brunette teens get an anal pounding for the first time," "A
cute girl gets anal fucked for the first time," "First anal for
Anime girl," "Young girl blonde first anal," "Tiny daughter
anal," "Skinny young teen does anal," and "Hot young emo teen
gets ass stretched her first anal fuck."
 19

committing the crimes charged.9 See Commonwealth v. Wallace, 70

Mass. App. Ct. 757, 764 (2007) ("Evidence of a defendant's

predisposition to commit the crime charged has long been held to

be relevant"). Contrast Commonwealth v. Christie, 89 Mass. App.

Ct. 665, 671-673 (2016) (evidence that defendant, an adult male

homosexual, had interest in viewing depictions of adult males

engaged in generic acts of same-sex intercourse, standing alone,

irrelevant to whether defendant has interest in sexual conduct

with underage boys). To counter the defense theory that someone

other than the defendant had sexually abused A.E., the

Commonwealth properly adduced evidence demonstrating his

interest in sex between a stepfather and his stepdaughter,

thereby tending to prove that the defendant, who could be seen

as A.E.'s stepfather, was the perpetrator of the alleged abuse.

The evidence also served to corroborate A.E.'s testimony. Many

of the titles of the pornographic files and the description of

the video content evince a connection to A.E.'s allegations of

anal intercourse, and the title, "Min dad fucked young teen

daughter on table," explicitly parallels A.E.'s account of the

defendant "massaging" her "bum" while she lay on a living room

table. Furthermore, with regard to the charge of disseminating

pornography to a minor, the challenged evidence substantiated

9
This is so even if the material did not actually depict
children.
 20

A.E.'s account of watching a video recording of a man

"massaging" a woman with his penis.

"Nonetheless, to be admissible, the probative value of the

evidence must not be substantially outweighed by its prejudicial

effect." Commonwealth v. Bell, 473 Mass. 131, 144 (2015). See

Mass. G. Evid § 403 (2016). The defendant argues on appeal that

the probative value of the pornographic titles and Internet

searches was outweighed by the risk of undue prejudice and,

specifically, he contends that the evidence was excessive in

quantity and inflammatory in nature. Although the twenty titles

selected by the Commonwealth from the inventory of pornographic

computer files arguably amounted to a substantial quantity of

highly charged evidence, in the circumstances of this case, the

admission did not constitute an abuse of discretion giving rise

to a substantial risk of miscarriage of justice.

The very quantity of files in the computer inventory had

evidentiary value, because it manifested the defendant's

sustained and purposeful interest in the themes of sex, and

particularly anal sex, with young girls, and sex between

stepfathers and stepdaughters, and contradicted the defense

theory that the defendant had no pedophilic interest. See

Commonwealth v. Carey, 463 Mass. at 392 n.18 (quantity of

potentially inflammatory evidence demonstrated depth of

defendant's interest in, and inquiry into, asphyxiation). The
 21

substantial quantity of pornography in the inventory also made

it more probable that the files were amassed by someone with

continuous access to the computer, as opposed to one of the

occasional visitors to the home, as the defendant proposed.

Furthermore, the inflammatory potential of the pornographic

material was diminished by the fact that only an inventory of

the titles, and not the images, was submitted to the jury.

Contrast Commonwealth v. Petrillo, 50 Mass. App. Ct. at 106-110

(harmless error to show sixteen minutes of hard-core

pornographic videotape to jury); Commonwealth v. Juandoo, 64

Mass. App. Ct. 56, 61 (2005) (reversible error to admit "a

substantial quantity of pornography," including pornographic

videotapes, seventy-seven pornographic images, and three

pornographic magazines, all of which were provided to jury

during deliberations).

The judge had no duty sua sponte to conduct an analysis to

determine whether the risk of inflaming the jury outweighed the

probative value of the evidence, nor to issue a limiting

instruction. Thus, where admission of the evidence did not

"fall[] outside the range of reasonable alternatives," there was

no abuse of discretion. L.L. v. Commonwealth, 470 Mass. at 185

n.27. Moreover, were we to discern error in the quantity of

references to pornographic titles not specifically pertinent to

the crimes alleged, where the defense raised no objection to the
 22

testimony, we discern no risk of a miscarriage of justice. See

Commonwealth v. Halsey, 41 Mass. App. Ct. at 204 (cumulative

evidence presented "little risk of a miscarriage of justice").

Judgments affirmed.