NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12363

                COMMONWEALTH   vs.   WILLIAM McDONAGH.



            Suffolk.    January 5, 2018. - July 26, 2018.

   Present:     Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                            & Kafker, JJ.


Rape.  Indecent Assault and Battery. Obscenity, Child
     pornography. Evidence, Prior misconduct, Obscenity, State
     of mind. Practice, Criminal, Argument by prosecutor, State
     of mind, Objection.



     Indictments found and returned in the Superior Court
Department on September 30, 2014.

     The cases were tried before Christine M. Roach, J.

     After 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 defendant.
     John P. Zanini, Assistant District Attorney (Claudia Arno &
Sarah McEvoy, Assistant District Attorneys, also present) for
the Commonwealth.


     LOWY, J.    In 2014, William McDonagh was convicted on two

indictments charging aggravated statutory rape, in violation of
                                                                   2


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 minor son.

    At 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
                                                                     3


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.

     1.    Background.   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.1    The defendant's

other minor son, Nathan, was the putative victim of one of the

dissemination charges.

     The 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.

     Colin 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

     1   Pseudonyms are used for the defendant's children.
                                                                      4


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.

    Other 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.

    In 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.
                                                                      5


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.2,3   This was the first time Colin

reported that the defendant had sexually abused him.4

     The 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).5      This


     2 The interview was videotaped, and a redacted version of
the tape was shown to the jury at trial. The interviewer also
testified at trial as the first complaint witness.

     3 There was some discrepancy as to where the abuse began,
but any such discrepancy is immaterial to the defendant's
appeal.

     4 The Department of Children and Families (DCF) had
conducted an investigation following the defendant's arrest for
possession of child pornography in 2010. At that time, Colin
was interviewed by an investigator from DCF. Colin denied
having seen anything inappropriate on his father's computer or
having been touched inappropriately.

     5 The Commonwealth conceded in the Appeals Court that the
evidence was insufficient to support the conviction of
dissemination of obscene matter to Colin, and the Appeals Court
                                                                     6


court granted the defendant's application for further appellate

review.

    2.    Discussion.   It is 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 review.    Accordingly,

we begin by addressing the threshold issue:    whether the

defendant's objection to the Commonwealth's closing argument was

sufficiently precise to preserve the claimed error.

    a.    The objection.   Whether and how certain other bad act

evidence would be admitted in evidence was a prominent and

recurring issue throughout the defendant's trial --

particularly, the defendant's 2010 arrest for, admission to, and



reversed the conviction and dismissed the indictment for that
count. Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109 (2017).
                                                                   7


conviction of possession of child pornography.   Prior to trial,

the Commonwealth moved in limine to admit this evidence.    The

defendant had initially moved to exclude it, arguing that the

evidence "would be highly prejudicial" and "show only his

propensity to commit the crime[s] charged."   Eventually, the

defendant conceded that the evidence was relevant to corroborate

Colin's testimony that the defendant had shown him child

pornography during the charged incidents of sexual assault.

This evidence was also admissible to show the defendant's

efforts to "groom" Colin.6   From the defendant's perspective,


     6 The term "grooming" has been used to "refer[] to
deliberate actions taken by a defendant to expose a child to
sexual material; the ultimate goal of grooming is the formation
of an emotional connection with the child and a reduction of the
child's inhibitions in order to prepare the child for sexual
activity." Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673
n.10 (2016), quoting United States v. Chambers, 642 F.3d 588,
593 (7th Cir. 2011). Where relevant, evidence of grooming may
be introduced for the nonpropensity purposes of demonstrating
the defendant's intent, preparation, plan, or design. See State
v. Castine, 141 N.H. 300, 302-304 (1996) (evidence of grooming
properly admitted to show defendant's plan and preparation to
commit charged acts of sexual assault against child); State v.
Sena, 144 N.M. 821, 826 (2008) (grooming evidence properly
admitted to show defendant's intent and to refute claim that
defendant touched victim for medical purposes); State v.
Williams, 134 Ohio St. 3d 521, 526-527 (2012) (testimony
concerning grooming properly admitted to demonstrate "motive,
preparation, and plan of the accused to target teenage males who
had no father figure and to gain their trust and confidence for
the purpose of grooming them for sexual activity with the intent
to be sexually gratified"); State v. DeVincentis, 150 Wash. 2d
11, 17-19, 23-24 (2003) (evidence of grooming properly admitted
to show defendant's plan or design). See also United States v.
Johnson, 132 F.3d 1279, 1282-1284 (9th Cir. 1997) (for charge of
transportation of minor with intent to engage in criminal sexual
                                                                  8


evidence of the date of his arrest provided an important

timeline of events and explained the defendant's absence from

the home while he was incarcerated.   The parties discussed

introducing the evidence through a stipulation to the jury but

did not reach an agreement prior to trial.   The judge took the

issue under advisement.

    The parties entered into a stipulation concerning the

defendant's arrest for and admission to possession of child

pornography on the final day of trial.   The following

stipulation was submitted to the jury:

    "On October 25, 2010, William McDonagh was arrested
    for possession of child pornography in Hull,
    Massachusetts. His home was searched that day and his
    computers, digital camera, and other digital evidence
    were seized. The defendant admitted to possessing
    child pornography. He denied ever having any sexual
    contact with his child or any child."

    Soon after the stipulation was presented to the court, the

Commonwealth requested that the judge instruct the jury that

they could consider the defendant's arrest for possession of

child pornography to demonstrate his "state of mind," that he

was sexually attracted to children.   Defense counsel objected,

arguing that such an instruction would invite the jury to

consider the other act evidence for impermissible propensity

purposes and that the defendant had a "criminal character for



activity, grooming evidence admissible to show defendant's
intent to engage in unlawful sexual activity with minor).
                                                                     9


sexual thoughts."    The defendant also noted that a state of mind

instruction would contradict the judge's other instructions to

the jury that they not consider the evidence to show the

defendant has a propensity to commit this type of crime.

Clearly recognizing the need for specific instructions

concerning the purposes for which the jury could consider the

other act evidence, the judge requested that the parties

identify the precise language for her instruction to the jury:

"What I need you to focus on is what these words should say

based on your view of what the permissible use of this evidence

is."   The judge then ruled that she would not instruct the jury

on "state of mind" as it related to the defendant's arrest for

child pornography.

       The Commonwealth then requested that it be permitted to

argue in closing that the jury could consider the defendant's

admission to possessing child pornography for purposes of

demonstrating his "state of mind," that he was sexually

attracted to children.    Differentiating between the defendant's

arrest for possession of child pornography and his admission to

possessing child pornography, the judge concluded that the

Commonwealth's proposed argument was proper.    Defense counsel

objected.   She began to explain that the Commonwealth's argument

sought to "show[] that [the defendant] has a criminal character
                                                                    10


or . . . show[] that he's sexually --."    The judge interjected,

stating,

    "She's not going to use the words criminal character.
    She's going to say that his admission to possessing
    child pornography is evidence that he was attracted to
    children. I don't know how you can argue with that.
    So I appreciate your advocacy, but I think that it is
    what it is."

Defense counsel did not assert a further objection.

    The Commonwealth's closing argument contained the following

statement:   "The defendant possessed child pornography.   He was

sexually attracted to children.    [Colin] told you about the

abuse he suffered at the hands of his father.    The defendant's

inclination, or interest sexually in children corroborates

[Colin's] testimony that his father sexually assaulted him."

The judge then instructed the jury that evidence of the

defendant's arrest for possession of child pornography could not

be considered as evidence that the defendant had a bad character

or a propensity to commit the crimes charged in this case.      The

jury were instructed that they could only consider that the

defendant's 2010 arrest for child pornography was for "the

limited issue of the defendant's opportunity and the

relationship between the defendant and the alleged victims for

purposes of the crimes charged here.    You may not consider this

evidence for any other purpose."
                                                                  11


     Because the judge specifically permitted the Commonwealth

to make the argument at issue in this appeal, we review the

judge's evidentiary ruling allowing that argument.    The

Commonwealth contends that defense counsel failed to lodge an

adequate objection to the judge's ruling on the Commonwealth's

closing argument.    Only a timely and precise objection to the

admission of evidence, or a judge's ruling, will preserve a

claimed error for appellate review.    See Commonwealth v. Bonds,

445 Mass. 821, 828 (2006) ("We have consistently interpreted

Mass. R. Crim. P. 22, 378 Mass. 892 [1979], to preserve

appellate rights only when an objection is made in a form or

context that reveals the objection's basis").    See also Mass.

G. Evid. § 103(a) (2018).    A timely and precise objection not

only preserves the aggrieved party's appellate rights, but more

importantly, "afford[s] the trial judge an opportunity to act

promptly to remove from the jury's consideration evidence [or

the effect of an initially improper ruling] which has no place

in the trial."   Abraham v. Woburn, 383 Mass. 724, 726 n.1

(1981).    See Commonwealth v. DePina, 476 Mass. 614, 624 n.9

(2017) (importance of objection is to notify judge of impending

error).7   Accordingly, to ensure that the trial judge is aware of


     7 At least as important as protecting the record, a timely
and precise objection provides the judge with an opportunity to
consider the argument presented in order to make a reasoned
decision. The same principle applies where the judge's ruling
                                                                     12


the basis for an objection when it is not apparent from the

context, "counsel should state the specific [evidentiary] ground

of the objection" (citation omitted).   Commonwealth v. Marshall,

434 Mass. 358, 365 (2001).   See Commonwealth v. Fowler, 431

Mass. 30, 41 n.19 (2000) (issue not properly preserved because

defendant objected on grounds other than those argued on

appeal).

    Where the adequacy of an objection is contested, the

"objection is to be considered 'in the context of the trial as a

whole.'"   Commonwealth v. Jones, 464 Mass. 16, 19 n.4 (2012),

quoting Commonwealth v. Koney, 421 Mass. 295, 299 (1995).      See

Commonwealth v. Biancardi, 421 Mass. 251, 254 (1995) (objection

preserved claim where, "[s]urely, the point was brought to the

judge's attention, and she rejected it").   Perfection is not the

standard by which we measure the adequacy of an objection.     See

Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3 (1999).

An objection adequately preserves the claimed error so long as

"counsel 'makes known to the court the action which he desires



excludes evidence and the party offering the evidence informs
the court concerning the admissibility of the proposed evidence
by an offer of proof. See Mass. G. Evid. § 103(a)(2) (2018).
Judges should not hesitate to reconsider their preliminary
ruling in response to counsel's argument. Indeed, an informed
evidentiary argument from counsel may allow the judge to augment
the record, whether the judge changes his or her ruling or not.
See Mass. G. Evid. 103(c) (2018) ("court may make any statement
about the character or form of the evidence, the objection made,
and the ruling").
                                                                     13


the court to take or his objection to the action of the court.'"

Fowler, 431 Mass. at 41 n.19, quoting Mass. R. Crim. P. 22.

Accordingly, vague general objections often fall short of

preserving an error that is later fully articulated on appeal.

See Commonwealth v. Cancel, 394 Mass. 567, 570-571 (1985).     For

example, where counsel only stated that the admission of

proposed testimony was "terribly prejudicial" and not relevant

to the case, the defendant's subsequent claim on appeal that the

testimony was impermissible bad act evidence was not preserved

because "the defendant did not object with the precision

required to preserve the error on appeal, as she failed to

delineate any specific evidentiary basis for the objection."

Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827 (2018).      See

Bonds, 445 Mass. at 828 ("Rather than an objection to the

testimony as impermissible evidence of character or propensity,

the defendant's standing objection was based on relevancy

alone").

    The admission of other bad act evidence, particularly the

defendant's arrest for, and admission to, possession of child

pornography, was an issue that permeated the trial.   Moreover,

it is clear from the record that the judge was acutely aware of

the delicate balance required when dealing with other bad act

evidence and the importance of limiting the jury's consideration

of that evidence.   Both in requesting jury instructions and
                                                                  14


seeking permission to make comments in its closing argument, the

Commonwealth endeavored to allow the jury to consider the

evidence contained in the stipulation for purposes of

demonstrating the defendant's "state of mind," that he was

sexually attracted to children.   The defendant objected in both

instances, claiming that the Commonwealth was inviting the jury

to make an impermissible propensity inference that because the

defendant had been arrested for, and admitted to, possession of

child pornography, he was sexually attracted to children and

therefore more likely to have committed the crimes charged.

Similarly, the Commonwealth was seeking to demonstrate the

defendant's "criminal character," for purposes of proving that

the defendant acted in accordance with that bad character.

    Although defense counsel articulated an evidentiary basis

for her objection that was neither perfect nor comprehensive,

perhaps because the judge interrupted counsel in the midst of

the objection, counsel's objection adequately preserved the

issue on appeal.   In the context of the entire case, counsel

sufficiently articulated that the Commonwealth was seeking to

invite the jury to use other bad act evidence for purposes other

than that for which it had been properly admitted.

Specifically, the defendant stated as grounds for his objection

that the Commonwealth sought to invite an impermissible

propensity inference based on the defendant's "criminal
                                                                   15


character."   See Commonwealth v. Facella, 478 Mass. 393, 403

(2017), quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006)

("evidence of prior bad acts 'is not admissible to show a

defendant's bad character or propensity to commit the charged

crime" [emphasis supplied]).8   To the extent that counsel could

have provided a more thorough and precise explanation for her

objection, we cannot hold that against her, as the judge

interrupted counsel's explanation and essentially exclaimed that

the Commonwealth's position was inarguably permissible -- "I

don't know how you can argue with that."   Accordingly, we review

the defendant's claim under the prejudicial error standard.9


     8 Defense counsel should have requested the opportunity to
augment the grounds for her objection. It may be that the
judge, in making her ruling, had in mind that she was not
allowing evidence in to show the defendant's "criminal
character," and that she, therefore, did not recognize that
defense counsel's objection was focused on precluding the
prosecutor from arguing that the jury could consider the other
act evidence for impermissible propensity purposes. Perhaps,
the judge would have rethought her ruling had defense counsel
argued that the Commonwealth was seeking to make an improper
propensity argument; an error that was exacerbated by the fact
that even if the defendant's "state of mind" was relevant for a
nonpropensity purpose, any probative value would be outweighed
by the danger that the jury would use the evidence as
impermissible character evidence. While we recognize that the
judge did state, "I don't know how you can argue with that," in
response to defense counsel's argument, the judge did not
foreclose further discussion of the issue.

     9 We recognize that, generally, counsel's "[f]ailure to
object to the closing and to ask for a curative instruction
waives the right to claim error on appeal." Commonwealth v.
Marquetty, 416 Mass. 445, 450 (1993). The defendant correctly
observes, however, that the judge had sanctioned the
                                                                    16


     b.    Claimed error.   As discussed supra, the defendant

contends that the judge erred in permitting the prosecutor to

assert in her closing argument that the defendant's admission to

possessing child pornography demonstrated the defendant's "state

of mind," that he was sexually attracted to children.     Because

this invited an impermissible propensity inference, and the

defendant's state of mind was not at issue in this case, we

agree.10

     "We review questions of admissibility, probative value, and

unfair prejudice for abuse of discretion . . . and do not

disturb a trial judge's decision absent a clear error of

judgment in weighing the relevant factors."     Commonwealth v.

Brown, 477 Mass. 805, 820 (2017).    "The standard for evaluating

the admissibility of 'other bad acts' evidence is well



prosecutor's argument, and so the prosecutor was entitled to
make it. See Commonwealth v. Lamrini, 392 Mass. 427, 432-433
(1984). The defendant properly challenges the judge's ruling,
rather than the closing argument itself. A party need not
continue to voice an objection once it is clear that doing so
would be futile. Commonwealth v. Connolly, 49 Mass. App. Ct.
424, 426 n.2 (2000) ("after defendant has presented argument and
the judge has rejected it, he need not subsequently make
patently futile objections to preserve the point for review").

     10We observe that, on appeal, the defendant claims that his
admission to possessing child pornography was not probative as
to his state of mind because possession of child pornography
does not necessarily evince sexual attraction to children. We
do not address this argument, because, as explained infra, the
defendant's admission to possessing child pornography was not
admissible as to his state of mind because his state of mind was
not at issue.
                                                                     17


established."   Crayton, 470 Mass. at 249.   The Commonwealth may

not introduce evidence of the defendant's other bad acts in

order to demonstrate bad character, or a propensity to commit

the crimes charged.   Commonwealth v. Anestal, 463 Mass. 655, 665

(2012).   However, this evidence may be admissible to prove a

material issue separate and distinct from the defendant's

character or propensity to commit the crime charged.     See

Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423

Mass. 356, cert. denied, 519 U.S. 1045 (1996).     In the

appropriate circumstances, other bad act evidence can be used

for a variety of purposes including, but not limited to,

establishing a defendant's "motive, opportunity, intent,

preparation, plan, knowledge, identity, . . . pattern of

operation," absence of mistake, or lack of accident.     Crayton,

supra, quoting Commonwealth v. Walker, 460 Mass. 590, 613

(2011).   See Mass. G. Evid. § 404(b)(2) (2018).    Even where the

other act evidence is relevant for a nonpropensity purpose, the

evidence may not be admitted if its probative value is

outweighed by the risk of unfair prejudice to the defendant.

Crayton, supra at 249 & n.27.     See Commonwealth v. Jaundoo, 64

Mass. App. Ct. 56, 60 (2005) ("A defendant's possession of

pornography is admissible in sexual assault cases if relevant to

an issue in the case and if its prejudicial effect does not

outweigh its probative value").
                                                                    18


    Our resolution of the claimed error is controlled by

Crayton, 470 Mass. at 248-252.    In that case, the defendant was

charged with possession of child pornography based on Internet

searches he allegedly conducted on a computer at a public

library.   Id. at 229-232.   At trial, the Commonwealth sought to

show the defendant's state of mind and intent by introducing

evidence of sexual drawings of young girls that were found in

his jail cell.   Id. at 248.   The issue at trial, however, was

the identity of the person who had conducted the illicit

Internet searches, not that person's intent or state of mind.

Id. at 250.    We concluded that the other act evidence was

inadmissible, because "the risk was enormous that the jury would

use the drawings for the forbidden purpose of identifying the

defendant as the person who viewed the child pornography on

[the] computer . . . based on his bad character and propensity

to possess child pornography."    Id. at 251.

    Similarly, the defendant's guilt here did not turn on his

state of mind during the commission of the charged acts; rather,

it depended on whether the defendant actually committed the acts

at all.    See United States v. Colon, 880 F.2d 650, 659 (2d Cir.

1989) (evidence of prior bad acts not admissible to show intent,

where intent was not in dispute because defendant denied

committing charged actions).   Contrast Facella, 478 Mass. at 404

("Because the rebuttal evidence [of prior bad acts] tended to
                                                                   19


disprove the defendant's theory . . . , it was relevant and

admissible for that purpose").11   Accordingly, the risk that the

jury would conclude that the defendant committed the charged

crimes based on his criminal character and propensity, as

demonstrated by his arrest for and admission to possession of

child pornography, was significant.   This is particularly true

given that, in closing, the prosecutor commented on the

defendant's "inclination, or interest sexually in children,"

which was only relevant if he acted in accordance with that

inclination or bad character in abusing his son.12   Indeed, the

prosecutor stated in closing that the defendant's alleged sexual

attraction to children "corroborates [Colin's] testimony that

his father sexually assaulted him."   This argument clearly




     11The Commonwealth's reliance on United States v. Brand,
467 F.3d 179 (2d Cir. 2006), cert. denied, 550 U.S. 926 (2007)
and United States v. Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994),
cert. denied, 514 U.S. 1052 (1995), is misplaced. In those
cases, the defendants claimed the affirmative defense of
entrapment, which the government can defeat by showing a
defendant's predisposition to commit the alleged offense. See
Brand, supra at 189, 196; Byrd, supra at 1336-1337 & n.9.

     12Additionally, "[t]his is not a case in which the disputed
evidence had [a] direct connection with the crime charged."
Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 26 (1990).
Contrast Commonwealth v. Coates, 89 Mass. App. Ct. 728, 739-740
(2016) (evidence that defendant had viewed pornography was
admissible where "[m]any of the titles of the pornographic files
and the description of the video content evince[d] a connection
to [victim's] allegations of anal intercourse" and "explicitly
parallel[ed]" victim's description of abuse).
                                                                   20


invited the jury to make an impermissible propensity inference,

and as such, should not have been permitted.

    c.   Prejudicial error analysis.   "We review

nonconstitutional errors, preserved through objection at trial,

to determine whether they created prejudicial error."

Commonwealth v. Nardi, 452 Mass. 379, 396 (2008), citing

Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525

U.S. 1007 (1998).   In analyzing a defendant's claim of improper

argument, albeit an argument specifically permitted by the

judge, we analyze the remarks "in the context of the entire

argument, and in light of the judge's instructions to the jury

and the evidence at trial."   Commonwealth v. Gaynor, 443 Mass.

245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412

Mass. 224, 231 (1992).

    Although the judge erred in allowing the prosecutor to make

this particular argument, the bulk of the prosecutor's closing

argument focused on the Commonwealth's substantive evidence

against the defendant.   Her improper propensity argument "was

isolated, and 'it was not a principal focus of what otherwise

was a proper closing argument.'"   Commonwealth v. Kolenovic, 478

Mass. 189, 201-202 (2017), quoting Gaynor, 443 Mass. at 274.

See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234 (2016).

    The Commonwealth presented a strong case against the

defendant, which was anchored in Colin's testimony concerning
                                                                   21


the instances of sexual abuse; the jury heard Colin testify that

the defendant had committed the charged acts.   His testimony was

corroborated by the first complaint witness, as well as a

videotape recording of his initial disclosure to the first

complaint witness.   Colin's claim, that the defendant had shown

him photographs of a nude beach and told him that they would go

there one day, was also supported by his siblings' testimony

that the defendant had shown them the same images and made

similar comments, as well as nude beach photographs submitted to

the jury that were found on the defendant's computer.

Importantly, the defendant's 2010 arrest for, and admission to,

possession of child pornography corroborated Colin's claim that

the defendant showed him sexual images of children on the

defendant's computer.

    The Commonwealth also introduced evidence of the

defendant's out-of-county sexual assaults against Colin to show

his pattern of conduct towards Colin.   See Commonwealth v. King,

387 Mass. 464, 470 (1982) ("when a defendant is charged with any

form of illicit sexual intercourse, evidence of the commission

of similar crimes by the same parties though committed in

another place, if not too remote in time, is competent to prove

an inclination to commit the [acts] charged" [citation

omitted]).   When this evidence was admitted, the judge provided

a contemporaneous limiting instruction to the jury that they
                                                                   22


could consider these uncharged assaults on Colin for several

specific purposes, including as evidence of the defendant's

opportunity, intent, and state of mind and the relationship

between the defendant and Colin.13    See Commonwealth v. Daley,

439 Mass. 558, 568 (2003) (prosecutor's characterization of

defendant as thief was "innocuous" in light of more

incriminating evidence that jury had heard about him).    In light

of Colin's direct testimony, corroborated by the pornography

found on the defendant's computer, the prosecutor's improper

remarks concerning the defendant's admission to possessing child

pornography could not have swayed the jury, particularly since

that very evidence was properly admitted for a limited purpose.

     We are further convinced that the prosecutor's improper

comment did not prejudice the defendant because the judge

emphatically instructed the jury that they could not consider

the other act evidence for propensity purposes or to otherwise

demonstrate that the defendant had a bad character.    The judge's

instructions, considered in their entirety, were sufficient to

ensure that the prosecutor's impermissible argument did not

influence the jury's deliberations.    Commonwealth v. White, 475

Mass. 724, 733 (2016).   Although a limited portion of the

judge's instruction concerning other bad act evidence may have


     13The defendant did not object to this instruction and does
not argue on appeal that it was improper.
                                                                 23


been somewhat unclear, the judge admonished the jury not to

consider evidence related to the defendant's 2010 arrest as

evidence that he possessed a propensity to commit the crimes

charged.14   She also made sure that the jury understood the

meaning of this instruction, explaining that evidence related to

the defendant's 2010 arrest could not serve as direct proof of

his guilt, and that the jury could not infer that if he was

arrested for possessing child pornography, he must also have

committed the crimes charged.15




     14We note that there was some conflict between the purposes
for which the defendant's arrest for, and admission to,
possessing child pornography were admitted, the prosecutor's
closing argument, and the judge's instruction during the jury
charge. Although the defendant's arrest for and admission to
possessing child pornography were admitted by stipulation to
corroborate Colin's testimony that his father had shown him
pornography in the course of the sexual assaults, the judge
instructed the jury that they could consider that evidence
"solely as it may bear on the limited issue of the defendant's
opportunity and the relationship between the defendant and the
alleged victims for purposes of the crimes charged here. You
may not consider this evidence for any other purpose." To the
extent that this instruction was unclear because it conflicted
with the purposes for which the evidence was admitted and the
Commonwealth's closing argument, the judge emphatically
instructed the jury that they could not consider such evidence
as demonstrating that the defendant had a propensity to commit
the offenses charged.

     15Additionally, the jury's questions regarding the
definition of obscenity, and their verdict of not guilty on one
indictment charging dissemination of obscene material, evince
the jury's disciplined deliberations. See Commonwealth v.
Daley, 439 Mass. 558, 568 (2003) ("These questions suggest that
the jury engaged in a careful and thorough examination of the
evidence . . .").
                                                                  24


    3.   Conclusion.   The convictions on the two indictments

charging aggravated statutory rape and the three indictments

charging indecent assault and battery on a child under the age

of fourteen are affirmed.   In light of the Commonwealth's

concession that the evidence is legally insufficient to support

a conviction of dissemination of obscene material, the

conviction on that indictment is reversed.

                                    So ordered.
