Heard: January 11, 2016.
found and returned in the Superior Court Department on June
cases were tried before David A. Lowy, J., and a
motion for new trial, filed on July 2, 2013, was heard by
Tymoczko for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Present: Grainger, Rubin, & Milkey, JJ.
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.
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.
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.
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.
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.
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,  and that with a proper limiting
instruction the videotapes could be admitted in evidence. The
judge excluded the heterosexual pornography.
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.
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.
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." 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 ...