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Commonwealth v. Coates

Appeals Court of Massachusetts, Bristol

July 15, 2016

COMMONWEALTH
v.
RYAN COATES.

          Heard: March 9, 2016.

         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.

          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 (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 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 Commonwealthv.Koney, 421 Mass. 295, 301-302 (1995). "[B]ald identity of name without confirmatory facts or circumstances is insufficient to prove identity of person." Commonwealthv.Doe, 8 Mass.App.Ct. 297, 299 (1979) . "Although very slight evidence might have ...


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