Heard: March 9, 2016.
found and returned in the Superior Court Department on June
21, 2012 and August 9, 2012.
cases were tried before D. Lloyd Macdonald, J.
Tymoczko for the defendant.
Shoshana Stern, Assistant District Attorney, for the
Present: Cypher, Cohen, & Neyman, JJ.
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. Finding no merit in the defendant's
assertions, we affirm.
summarize the facts that the jury could have found, reserving
some details for later discussion of the issues raised by 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.
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. 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
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.
of identity evidence.
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).
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).
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. 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."
Mass.App.Ct. 297, 299 (1979) . "Although very slight
evidence might have ...