Commonwealth v. Coates

89 Mass.App.Ct. 728

54 N.E.3d 578

COMMONWEALTH

v.Ryan COATES.

No. 14–P–1547.

Appeals Court of Massachusetts, Bristol.

Argued March 9, 2016.

Decided July 15, 2016.

Alexei Tymoczko, West Newton, for the defendant.

Shoshana Stern, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, COHEN, & NEYMAN, JJ.

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 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. 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.

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, 36 N.E.3d 604 (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, 393 N.E.2d 370 (1979). “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Murphy, 70 Mass.App.Ct. 774, 777, 877 N.E.2d 604 (2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (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, 31 N.E.3d 1167 (2015), quoting from Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 546, 883 N.E.2d 1243 (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, 657 N.E.2d 210 (1995). “[B]ald identity of name without confirmatory facts or circumstances is insufficient to prove identity of person.” Commonwealth v. Doe, 8 Mass.App.Ct. 297, 299, 393 N.E.2d 426 (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, 165 N.E.2d 94 (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, 393 N.E.2d 426, quoting from Commonwealth v. Cavanaugh, 7 Mass.App.Ct. 33, 36, 385 N.E.2d 1006 (1979).

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, 31 N.E.3d 1167 (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, 794 N.E.2d 613 (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) 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, 569 N.E.2d 397 (1991), and Commonwealth v. Trowbridge, 36 Mass.App.Ct. 734, 636 N.E.2d 291 (1994), S.C., 419 Mass. 750, 647 N.E.2d 413 (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, 965 N.E.2d 194 (2012), quoting from Commonwealth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27, 20 N.E.3d 930 (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, 917 N.E.2d 762 (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...