Heard: October 13, 2016.
found and returned in the Superior Court Department on July
case was tried before Charles J. Hely, J.
Dougherty for the defendant.
Garland, Assistant District Attorney, for the Commonwealth.
Present: Cypher, Cohen, & Green, JJ.
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.
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
April, 2012, the victim's father and the defendant had a
telephone conversation. 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.
first discuss the issues that warrant reversal followed by
the remaining issue that may appear at retrial.