Commonwealth v. Vera

88 Mass.App.Ct. 313

36 N.E.3d 1272

COMMONWEALTH

v.Jose VERA.

No. 14–P–183.

Appeals Court of Massachusetts, Worcester.

Argued March 2, 2015.

Decided Sept. 11, 2015.

William A. Korman, Boston, for the defendant.

Susan M. Oftring, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, MILKEY, & AGNES, JJ.

Opinion

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, § 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.

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 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. 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 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 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 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.

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 defendant's motive. The judge found that the words used by the...