Heard: January 5, 2018.
Indictments found and returned in the Superior Court
Department on September 30, 2014. The cases were tried before
Christine M. Roach, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for the
P. Zanini, Assistant District Attorney (Claudia Arno &
Sarah McEvoy, Assistant District Attorneys, also present) for
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
2014, William McDonagh was convicted on two indictments
charging aggravated statutory rape, in violation of G. L. c.
265, § 23A, and three indictments charging indecent
assault and battery on a child under the age of fourteen, in
violation of G. L. c. 265, § 13B, arising out of
instances of sexual abuse the defendant committed against his
issue in this appeal is whether the prosecutor, with
permission from the trial judge, made improper remarks in her
closing argument. The comment at issue concerned the purposes
for which the jury could consider other bad act evidence that
had been properly admitted through a stipulation of the
parties -- specifically, that the defendant had been arrested
for, and admitted to, possession of child pornography.
Despite this evidence having been admitted for certain
limited purposes, including to corroborate the son's
testimony that the defendant showed him child pornography
while committing the acts of abuse at issue, the judge
allowed the Commonwealth to argue to the jury that they could
consider the evidence to demonstrate the defendant's
"state of mind," that he was sexually attracted to
children. The defendant argues that this evidence did not
show his state of mind and that, instead, the
prosecutor's closing argument invited the jury to infer
that he was sexually attracted to children and therefore more
likely to have committed the crimes charged. Given that the
defendant's state of mind was not at issue because he
denied that the abuse occurred, the judge erred in allowing
the prosecutor to make that argument in closing. See
Commonwealth v. Crayton, 470 Mass.
228, 249 & n.27 (2014). However, in light of the
prosecutor's entire closing argument, the evidence
presented at trial, and the judge's limiting
instructions, the defendant was not prejudiced. Accordingly,
we affirm the defendant's convictions.
In September, 2014, the defendant was charged with the five
offenses discussed above, as well as on two indictments of
dissemination of obscene matter, in violation of G. L. c.
272, § 29. Six of the seven charges stemmed from the
defendant's abuse of his minor son, Colin. The
defendant's other minor son, Nathan, was the putative
victim of one of the dissemination charges.
jury heard the following evidence at trial. The defendant and
his three children moved to Massachusetts in 2006. When the
defendant and his children arrived in Massachusetts, they
lived with the defendant's brother in the Hyde Park
section of Boston. In 2009, the defendant and his children
moved to Cambridge, then relocated to the Dorchester section
of Boston, and eventually settled in Hull.
testified that the defendant began sexually abusing him when
the family moved to Cambridge in 2009. The charged instances
of sexual abuse occurred between 2009 and 2010, while the
defendant and his children were living in Dorchester. Colin
testified that on multiple occasions the defendant touched
his buttocks and penis with his hand and forced him to engage
in oral sex. The defendant, while sexually abusing Colin,
showed him photographs of naked children and adults on nude
beaches, as well as video recordings of adults and children
engaging in sexual activity. Samples of photographs of nude
beaches that were found on the defendant's computer were
admitted in evidence. Colin explained that these images and
video recordings depicted people "having sex,"
which he described as "porn." The defendant
threatened to knock Colin's teeth out if he told anyone
about the abuse.
evidence of the defendant's uncharged conduct toward his
children was also admitted at trial. This evidence indicated
that the defendant had sexually assaulted Colin in two other
counties; showed Colin and Nathan adult and child
pornography; and showed Colin, Nathan, and their sister
photographs of people on nude beaches, telling the children
that he would take them to a nude beach someday.
October, 2010, the defendant was arrested for possession of
child pornography; he eventually pleaded guilty and was
incarcerated. As discussed in greater detail infra,
this evidence was introduced through a stipulation of the
parties and admitted in evidence by the judge for certain
limited purposes. In September, 2012, while the defendant was
incarcerated and the defendant's children were living
with his brother, a forensic interviewer for the Suffolk
County district attorney's office interviewed Colin.
During that interview, Colin recounted how the defendant
abused him.' This was the first time Colin reported
that the defendant had sexually abused him.
jury returned guilty verdicts on all charges except for the
second indictment charging dissemination of obscene matter,
which was based on the defendant showing nude beach
photographs to Nathan. The defendant appealed to the Appeals
Court, which, in an unpublished memorandum and order pursuant
to its rule 1:28, affirmed the convictions of aggravated
statutory rape and indecent assault and battery on a child
under fourteen. See Commonwealth v.
McDonagh, 91 Mass.App.Ct. 1109 (2017). This court
granted the defendant's application for further appellate
undisputed that the defendant's arrest for, and admission
to, possession of child pornography were properly admitted in
evidence. However, the defendant contends that the judge
erroneously allowed the Commonwealth to comment in its
closing argument that the jury could consider the evidence
for purposes of demonstrating the defendant's "state
of mind," that he was sexually attracted to children.
The defendant claims that this was an improper propensity
argument because it invited the jury to infer that he was
sexually attracted to children and, therefore, more likely to
have committed the charged crimes. The Commonwealth asserts
that the argument was proper and that, even if it was not,
the defendant failed to preserve the claim for appellate