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Commonwealth v. Christie

Appeals Court of Massachusetts, Essex

July 5, 2016

COMMONWEALTH
v.
GLENN CHRISTIE.

          Heard: January 11, 2016.

         Indictments found and returned in the Superior Court Department on June 15, 2007.

         The cases were tried before David A. Lowy, J., and a motion for new trial, filed on July 2, 2013, was heard by him.

          Alexei Tymoczko for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          Present: Grainger, Rubin, & Milkey, JJ.

          RUBIN, J.

         The defendant appeals from his convictions on four counts of statutory rape, G. L. c. 265, § 23, one count of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and one count of dissemination to a minor of matter harmful to minors, G. L. c. 272, § 28. The Commonwealth concedes that there was no evidence to support one of the statutory rape convictions, which therefore must be reversed and the indictment dismissed. In addition, because evidence of possession of videotape depictions of adult men engaged in same-sex sex was improperly admitted to demonstrate the defendant's sexual interest in the alleged victim, a twelve year old boy, the convictions on the other counts, except the dissemination count, also must be reversed.[1]

         Background.

         The alleged victim, whom we shall call Daniel, testified that in the summer of 2005, when he was twelve years old and he and his mother were living with the defendant, the defendant twice performed oral sex on him. He testified further that he briefly complied with the defendant's request that he penetrate the defendant anally. He also testified that the defendant went into a "porn store" while Daniel waited in the car, and purchased a "sex toy, " described at trial as a "fake penis, " and two digital video discs (DVDs). On returning home, the defendant played one of the DVDs, showing "[a] male and a female having sexual intercourse" on a DVD player in the living room. The defendant also inserted the sex toy into Daniel's anus, stopping when Daniel said he was "uncomfortable." Daniel also testified that he later saw "two men having sexual intercourse" on the other DVD.

         Two of the convictions of statutory rape were based on the incidents in which the defendant allegedly performed oral sex on Daniel, and one was based on the alleged incident involving the sex toy. As the Commonwealth concedes, there is no evidence to support the fourth rape conviction. The defendant was also convicted of one count of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, based on the alleged incident in which Daniel had anal sex with the defendant. Finally, the defendant was convicted of one count of dissemination to a minor of matter harmful to minors, G. L. c. 272, § 28. There were two possible bases for the dissemination charge, the alleged playing of each DVD described supra.

         In 2005, Daniel disclosed to his mother and the police a single alleged act of the defendant performing oral sex on him, and on that basis the defendant was charged with one count of statutory rape. On the eve of trial, in 2007, Daniel disclosed to the district attorney and the police all the other alleged sex acts. Police obtained a search warrant for the defendant's residence, a new one to which he had moved in the interim. The defendant was subsequently indicted on the charges of which he was convicted.

         The defendant is openly gay. Among the items seized pursuant to the warrant were eight video home system (VHS) videotapes from the defendant's bedroom, four containing heterosexual pornography and four containing same-sex male pornography, and five VHS videotapes from a storage area in the basement, three of which were not pornographic, one of which contained heterosexual pornography and one of which contained same-sex male pornography.

         The judge concluded correctly that evidence of a man's homosexuality is irrelevant to whether he has a sexual interest in children. See Commonwealth v. Baran, 74 Mass.App.Ct. 256, 284 (2009). But in part in reliance on our decision in Commonwealth v. Wallace, 70 Mass.App.Ct. 757 (2007), he concluded that the same-sex pornography was relevant to the defendant's sexual interest in Daniel and to the manner and means by which the charged rapes and sexual assault were allegedly committed, that the risk of unfair prejudice from this evidence did not substantially outweigh its probative value, [2] and that with a proper limiting instruction the videotapes could be admitted in evidence. The judge excluded the heterosexual pornography.

         The judge recognized that even with a limiting instruction there was a residual risk of prejudice and, in order to reduce that prejudice, he suggested that testimony describing the acts depicted in the videotapes rather than the videotapes themselves be entered in evidence, on condition that the defendant waive any argument under the best evidence rule. The parties agreed to this procedure, with the defendant preserving his objection to the admission of the evidence.

         These videotapes were not the subject of the dissemination charge; the parties agree that none of these videotapes was shown to Daniel, as they are not in the same DVD format as the video allegedly seen by him. The parties also agree that the videotapes contain only images of adults who do not appear to be underage and that their possession is lawful.

         At trial, one of the officers who executed the warrant testified that the first videotape depicted "[a]dult males engaged in oral and anal intercourse, " the second depicted "[a]dult males engaged in forms of masturbation, " the third depicted "adult males engaged in oral, anal sex and masturbation."[3] The fourth videotape depicted "adult males engaging in masturbation, oral sex and anal sex, " and a fifth videotape, found in the cellar, depicted "adult males engaging in oral and anal sexual intercourse, " as well as "adult males using a sex toy that was shaped like a penis."

The judge instructed the jury as follows:
"You may consider this evidence solely as it relates to the Defendant's sexual interest and state of mind in 2005 as it relates to [Daniel] and as it relates to the manner and means by which the Defendant allegedly accomplished the alleged sexual assault. Therefore, in order to consider such evidence you would need to find that the Defendant possessed these tapes in 2005.
"This evidence is not admitted on indictment 006 charging dissemination of harmful ...

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