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Commonwealth v. Roe

Appeals Court of Massachusetts, Plymouth

December 28, 2016

COMMONWEALTH
v.
JOSHUA W. ROE.

          Heard: October 13, 2016.

         Indictment found and returned in the Superior Court Department on July 20, 2012.

         The case was tried before Charles J. Hely, J.

          Thomas Dougherty for the defendant.

          Keith Garland, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Cohen, & Green, JJ.

          CYPHER, J.

         The defendant, Joshua W. Roe, appeals from his conviction by a Superior Court jury on January 8, 2015, of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. The defendant raises four arguments in this appeal: (1) that the inadvertent disclosure of the defendant's alleged prior sexual assault unduly prejudiced the defendant; (2) that the judge abused his discretion by allowing the victim's father to testify about the defendant's possible sexual interests; (3) that the judge erred in denying the defendant's motion to dismiss the grand jury's indictment; and (4) that the judge erred by denying the defendant's motion in limine regarding the delayed disclosure of unexpected testimony by the victim. Due to multiple errors, as discussed infra, including the admission in evidence of an inadmissible prior bad act, the conviction must be reversed.

         1. 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 defendant was an assistant Boy Scout leader for a troop in Wareham. The victim, a thirteen year old boy, was a member of the defendant's troop. The defendant would sometimes bring the victim to and from scout meetings to help the victim's family, whom he grew to know through a working relationship with the victim's father. In November, 2011, while driving the victim home, the defendant stated that he could stop the vehicle and have his way with the victim. The victim asked whether the defendant was homosexual, and the defendant replied that he was bisexual. In December of that year, the defendant stated to the victim, "you know I could turn you on." Later, in March, 2012, the defendant, his mother, and the victim were returning from a scout meeting. While the defendant's mother was inside a package store, the defendant and the victim were jokingly tussling back and forth. The defendant reached into the back seat, where the victim was sitting, and touched the victim's genitals. The victim testified that the defendant touched him for "long enough to seem like it wasn't an accident" and that it made him feel "really uncomfortable."

         In April, 2012, the victim's father and the defendant had a telephone conversation.[1] When the father asked the defendant whether he liked boys, he told the father that he did not "really know" whether he had sexual thoughts about "little boys" and that he had not touched the victim, but had spoken to him several times in an inappropriate fashion. Following the conversation with the defendant, the father asked his son if anything inappropriate had happened with the defendant. The victim told his father about the touching that occurred the previous month.

          2. Discussion.

         We first discuss the issues that warrant reversal followed by the remaining issue that may appear at retrial.[2]

         a. Preclu ...


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