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15-P-878                                                Appeals Court

                  COMMONWEALTH   vs.   JOSHUA W. ROE.


                            No. 15-P-878.

      Plymouth.       October 13, 2016. - December 28, 2016.

             Present:    Cypher, Cohen, & Green, JJ.


Indecent Assault and Battery. Evidence, Prior misconduct,
     Relevancy and materiality, Grand jury proceedings. Grand
     Jury. Practice, Criminal, Instructions to jury, Grand jury
     proceedings.



     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.


    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
                                                                    2


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,
                                                                      3


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.




     1
       During direct examination, the defendant testified that he
called the father to ask what type of dog food he should feed
the father's dogs. At sidebar, the Commonwealth alleged that
the defendant initiated the telephone conversation with the
father to discuss sexual assault allegations that were brought
against him by another boy, and therefore, the Commonwealth
should be permitted to place the conversation and resulting
actions in context. The judge allowed the Commonwealth to refer
to some other "misconduct" during cross-examination to give
context to the telephone conversation.
                                                                      4


     2.     Discussion.   We first discuss the issues that warrant

reversal followed by the remaining issue that may appear at

retrial.2

     a.     Precluded testimony.   The defendant argues that the

judge allowed the victim's father to testify about a prior

sexual assault charge against the defendant.      The defendant

appears to misapprehend the record, however, as the judge did

not allow the testimony.      The judge had granted the defendant's

motion in limine and prohibited any mention of alleged

inappropriate touching of a different boy, after concluding that

the probative value was outweighed by the unfair prejudicial

effect of such evidence.      Nevertheless, the precluded testimony

was disclosed to the jury during the father's direct

examination.     A curative instruction was not given until the

following day, after jury deliberations had begun, when the

jurors asked the judge if there were any statements from the

father's testimony that they should disregard.

     In determining the appropriate standard of review, we

consider the alleged errors and the steps the defendant took to

preserve them.    First, he filed a motion in limine to exclude

the bad act testimony, which was granted.      Although the judge


     2
       We conclude that the alleged delayed disclosure of new
testimony by the victim was not error but that the issue does
not warrant discussion because it will not recur at any
potential retrial.
                                                                    5


precluded any reference to other bad acts, the father testified

to them.    The defendant objected to the father's testimony and

the judge sustained the objection, but he did not permit defense

counsel to approach the bench.    On the other hand, the defense

attorney did not ask for a curative instruction, move for a

mistrial, or move to strike the inadvertent testimony.      In these

circumstances, where the defendant moved in limine to exclude

the testimony, objected to the testimony at trial, and was not

permitted to approach the sidebar to seek a further remedy, we

conclude that the defense attorney did enough to preserve the

issue.3    Compare Commonwealth v. Reeder, 73 Mass. App. Ct. 750,

752-754 (2009) (court reviewed for prejudicial error where

defendant moved before trial to exclude references to his alias,

but did not object to references during testimony at trial), but

see Commonwealth v. Murphy, 426 Mass. 395, 403 (1998) (court

reviewed for substantial risk of miscarriage of justice because

defendant did not ask for mistrial after his initial request for

sidebar conference following witness's erroneous testimony had

been denied).    Thus, we review to determine whether the

defendant was unfairly prejudiced by the father's testimony.

     3
       We note that the rule of preservation has been changed for
cases tried since the issuance of Commonwealth v. Grady, 474
Mass. 715, 719 (2016) ("Going forward, . . . [w]e will no longer
require a defendant to object to the admission of evidence at
trial where he or she has already sought to preclude the very
same evidence at the motion in limine stage . . ."). See
Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016).
                                                                     6


    "It is well settled that the prosecution may not introduce

evidence that a defendant has previously misbehaved . . . for

the purpose of showing his bad character or propensity to commit

the crime charged."    Commonwealth v. Vera, 88 Mass. App. Ct.

313, 319 (2015), quoting from Commonwealth v. Copney, 468 Mass.

405, 412 (2014).   "However, '[s]uch conduct . . . may be

admissible for other purposes, such as to show a common scheme,

pattern of operation, absence of accident or mistake, identity,

intent, or motive.'"   Ibid., quoting from Commonwealth v.

Helfant, 398 Mass. 214, 224 (1986).    See Mass. G. Evid.

§ 404(b)(2) (2016).    Where evidence is relevant for one of those

purposes, it should be excluded if its "probative value is

outweighed by the risk of unfair prejudice to the defendant,

even if not substantially outweighed by that risk."    Vera,

supra, quoting from Commonwealth v. Crayton, 470 Mass. 228, 249

n.7 (2014).

    In the event such evidence is objected to and erroneously

admitted, the judge ordinarily may rely on curative instructions

"as an adequate means to correct any error and to remedy any

prejudice to the defendant."   Commonwealth v. Costa, 69 Mass.

App. Ct. 823, 827 (2007) (quotation omitted).    Curative

instructions are considered to be more effective immediately

after the prohibited comment is uttered, see Commonwealth v.

Rodriquez, 49 Mass. App. Ct. 370, 374 (2000), and "[j]urors are
                                                                       7


expected to follow instructions to disregard matters withdrawn

from their consideration."     Commonwealth v. Cameron, 385 Mass.

660, 668 (1982).   Generally, provided the instructions are

reasonably prompt and the jury do not hear the inadmissible

evidence again, the error will be considered cured.     See

Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997).     See also

Commonwealth v. Gallagher, 408 Mass. 510, 517–518 (1990);

Commonwealth v. Mendes, 441 Mass. 459, 470 (2004).

    Here, during the father's direct examination, he testified

that the defendant had told him on the telephone that he had not

touched the victim the way he had touched another boy.      Prior to

the father's testimony, the judge ruled that there would be no

mention of any other inappropriate touching because of its

prejudicial effect.   Weighing the factors established in

Commonwealth v. King, 387 Mass. 464, 471–472 (1982), the judge

determined that the touching of the other boy was insufficiently

related to the touching of the victim because it was not

committed in a similar manner, there was not a close

relationship between the victims, and the two acts were not

committed close in time.     The judge stopped the father's

testimony immediately after he mentioned the prior bad act and

sustained the defendant's objection, but denied his request to

approach the bench.   The judge did not strike the testimony or

instruct the jury to disregard the bad act evidence, but said,
                                                                  8


"We're not getting into any comments about any other . . . event

or any other person, if there was such a thing.   We're

restricting ourselves."

    The following day during the defendant's cross-examination,

the judge modified his initial ruling and allowed the

Commonwealth to refer to "some misconduct" to give context to

the telephone conversation between the father and defendant.

The defendant once again objected to the mentioning of prior

misconduct.

    The failure to strike the reference to the prior touching

along with the lack of a prompt curative instruction prejudiced

the defendant.   The Commonwealth relies on Commonwealth v.

Baptista, 86 Mass. App. Ct. 28, 32 (2014), to argue otherwise;

however, the circumstances in that case differ from this case.

In Baptista, the denial of a request for mistrial was affirmed

because the judge immediately gave a prompt, forceful, curative

instruction to combat precluded bad act testimony.   See ibid.

Additionally, the erroneous reference in Baptista was vague and

fleeting, and it did not apprise the jury of the defendant's

prior bad act.   See ibid.

    Here, although the jury were eventually instructed on how

they could consider the father's testimony, the instruction did

not come until the following day after they had begun

deliberations.   The remark made by the judge immediately
                                                                     9


following the erroneous testimony ("We're restricting

ourselves") was not directed to the jury and does not rise to

the level of a curative instruction.    The day after the father's

testimony, the judge advised defense counsel that he would

instruct the jury upon defense counsel's request, but defense

counsel did not request a curative instruction.    The prejudicial

testimony should have been struck and the curative instruction

should have been given as soon as the father mentioned the

defendant's prior bad act and the defendant objected.    See

Rodriquez, 49 Mass. App. Ct. at 374; Costa, 69 Mass. App. Ct. at

827.   See also Commonwealth v. Hoffer, 375 Mass. 369, 372

(1978); Commonwealth v. Chubbuck, 384 Mass. 746, 753-754 (1981).

Defense counsel asked to approach the bench immediately after

the inflammatory statement, but was not permitted to do so.

       Furthermore, as demonstrated by the jury's question to the

judge about the father's testimony, the testimony was not vague

and it did alert the jury to the defendant's prior bad act.

Evidence of similar acts of misconduct by a defendant carries

with it the danger of misuse by the jury.    See Commonwealth v.

Errington, 390 Mass. 875, 881 (1984).    The danger in the present

instance was not reduced by any simultaneous instruction.

Therefore, we conclude that the jury's exposure to the precluded

testimony that (although the subject of an objection that was

sustained) was not struck, together with the absence of an
                                                                      10


immediate and forceful curative instruction, unfairly prejudiced

the defendant.

    b.    Character evidence.   The defendant argues that the

father's first complaint testimony included impermissible

character evidence of the defendant's possible sexual interests,

specifically his sexual attraction to little boys.   Prior to

trial, the defendant filed a motion in limine addressing this

statement, which was denied.    Because the defendant preserved

the issue on appeal with a timely objection, we review for

prejudicial error.    See Commonwealth v. Cruz, 445 Mass. 589, 591

(2005).

    "As a general rule, evidence of a person's character is not

admissible to prove that he acted in conformity with that

character on a particular occasion."    Commonwealth v. Bonds, 445

Mass. 821, 829 (2006), quoting from Liacos, Brodin, & Avery,

Massachusetts Evidence § 4.4.1, at 130 (7th ed. 1999).    However,

otherwise inadmissible character evidence may be admitted for a

proper purpose, such as proving motive or intent.    See Helfant,

398 Mass. at 224.    See also Commonwealth v. Simpson, 434 Mass.

570, 579 (2001) (defendant's statement showing state of mind

admissible notwithstanding that "in other circumstances [it]

could tend to prove guilt by evidence of bad character").       See

generally Mass. G. Evid. § 404.    Whether evidence is relevant is

"entrusted to the trial judge's broad discretion."    Simpson,
                                                                    11


supra.   However, relevant evidence may be excluded if its

probative value is substantially outweighed by its unfair

prejudicial effect.   See Commonwealth v. Stroyny, 435 Mass. 635,

641 (2002); Bonds, supra at 831; Commonwealth v. Gomes, 475

Mass. 775, 784 (2016).   See also Mass. G. Evid. § 403 (2016).      A

judge's assessment that the probative value of proffered

evidence is outweighed by some countervailing prejudicial effect

is reviewed for an abuse of discretion.    See Commonwealth v.

Otsuki, 411 Mass. 218, 235-236 (1991); Commonwealth v. Rosario,

444 Mass. 550, 557 (2005).   "We defer to the judge's exercise of

discretion unless the judge has made 'a clear error of judgment

in weighing' the factors relevant to the decision, . . . such

that the decision falls outside the range of reasonable

alternatives."   Commonwealth v. Alleyne, 474 Mass. 771, 779,

quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014) (2016) (citation omitted).   The effectiveness of limiting

instructions in minimizing the risk of unfair prejudice should

be considered in balancing prejudice and probative value.     See

Commonwealth v. Dunn, 407 Mass. 798, 807 (1990); Mass. G. Evid.

§ 403.

    Here, testimony by the father that the defendant said that

he did not "really know" if he had a problem with or ever had

thoughts of doing sexual things with little boys is relevant to

the crime charged.    In Commonwealth v. Bradshaw, 86 Mass. App.
                                                                      12


Ct. 74 (2014), the court affirmed a lower court's decision to

allow in evidence the defendant's statement that he was

attracted to young boys.   In Bradshaw, the judge admitted the

statement for a limited purpose.     See id. at 77-78.   Before the

testimony was given, the judge correctly instructed the jury,

"You may consider [the defendant's statement] solely on the

limited issue of whether or not the defendant had a motive to

commit the crime that was charged in this indictment, and as to

his state of mind and intent."     Id. at 78.   As in Bradshaw, the

statements made to the father in this case were relevant with

respect to the limited issues of motive, state of mind, and

intent because they explain why the defendant would touch the

victim and what he might have been thinking the night the

assault occurred.    However, here, although there may have been a

proper limited purpose for the testimony, the failure to guide

the jury on their use of this evidence was prejudicial error.

The judge did not give a contemporaneous limiting instruction

when the father testified, nor was an instruction given when the

Commonwealth cross-examined the defendant as to the same

conversation.

    Furthermore, there was no limiting instruction in the final

jury charge.    See Commonwealth v. McCowen, 458 Mass. 461, 478–

479 (2010) (no abuse of discretion in admitting bad act evidence

subject to limiting instruction given immediately after evidence
                                                                  13


was admitted, as well as instruction in final charge).   See also

Gomes, 475 Mass. at 785 (question whether evidence was more

prejudicial than probative was close, but there was no error in

light of judge's limiting instruction, that jury were not to

consider evidence for purpose of bad character, given when

evidence was admitted and repeated in his final jury charge).

Although there is no requirement that the judge give limiting

instructions sua sponte, see Commonwealth v. Sullivan, 436 Mass.

799, 809 (2002), "[p]rompt cautionary instructions to the jury

are critical to protecting a defendant against prejudice where

[character] evidence is admitted."   Brodin and Avery,

Massachusetts Evidence § 4.4.6, at 155 (8th ed. 2007).   The jury

received no guidance regarding how they should consider the

potentially prejudicial testimony.   See generally Commonwealth

v. Anestal, 463 Mass. 655, 673 (2012).

    Finally, we cannot discern from the record the extent to

which the judge considered whether the evidence would unduly

prejudice the defendant.   Without a limiting instruction, and in

light of the admission of the precluded testimony, we conclude

that the character evidence was prejudicial.

    c.   Grand jury indictment.   The defendant argues that the

judge erred in denying the defendant's motion to dismiss the

grand jury's indictment.   He contends there was insufficient

evidence to establish probable cause to indict the defendant and
                                                                   14


the integrity of the grand jury proceeding was impaired by the

Commonwealth's failure to disclose exculpatory evidence and

references connecting the defendant's Boy Scout troop to the

Catholic Church.

    i.    Insufficient evidence.   In general, a "court will not

inquire into the competency or sufficiency of the evidence

before the grand jury."     Commonwealth v. McCarthy, 385 Mass.

160, 161-162, (1982), quoting from Commonwealth v. Robinson, 373

Mass. 591, 592 (1977).    A court may, however, consider whether

the grand jury received sufficient evidence to establish

probable cause to arrest.    See McCarthy, supra at 163.   To

survive a motion to dismiss, the grand jury must simply be

presented with evidence supporting a finding of probable cause

as to each of the elements of the charged crime.     See

Commonwealth v. Walczak, 463 Mass. 808, 817 (2012).

    The grand jury indicted the defendant on a charge of

indecent assault and battery on a child less than fourteen years

of age.   To survive a motion to dismiss, the Commonwealth was

required to present the grand jury with evidence showing

probable cause for each of the three elements of the offense,

that (1) the alleged victim was not yet fourteen years of age at

the time of the alleged offense; (2) the defendant committed an

assault and battery on that child; and (3) the assault and

battery was "indecent" as that word is commonly understood,
                                                                    15


measured by common understanding and practices.     G. L. c. 265,

§ 13B.    Here, police Officer William Desilva testified at the

grand jury hearing that the victim was born in July of 1998,

which established that the victim was under fourteen years old

at the time of the crime.    Desilva also testified to the

inappropriate remarks the defendant made to the victim and that

the defendant grabbed the victim's thigh and started moving his

hands towards the victim's groin area.4    The trial judge did not

err in concluding that the Commonwealth presented enough

evidence to show probable cause that the defendant committed the

charged crime.

     ii.    Integrity of the proceeding.   A court may also

consider whether the integrity of the grand jury proceeding was

impaired.    See Commonwealth v. O'Dell, 392 Mass. 445, 446-447

(1984).    "A motion to dismiss on this ground may be allowed only

on a showing that (1) false or deceptive evidence was offered

knowingly or with 'reckless disregard of the truth' of that

evidence; (2) the false evidence 'probably influenced' the grand

jury's decision to indict; and (3) the evidence was presented

     4
       The victim initially told his father and the police that
the defendant grabbed his inner thigh, but later told the
prosecutor that the defendant touched his penis. Evidence that
the defendant grabbed his inner thigh was sufficient for the
grand jury to find probable cause that the defendant committed
the indecent assault. See Commonwealth v. Rosa, 62 Mass. App.
Ct. 622, 628 (2004). However, the defendant was convicted
beyond a reasonable doubt on the evidence that he touched the
victim's penis.
                                                                  16


with the intention of obtaining an indictment."    Commonwealth

v. Hunt, 84 Mass. App. Ct. 643, 651 (2013) (citations omitted).

    The defendant has not directed us to any evidence to

support his position that the Commonwealth knowingly provided

deceptive evidence with the intention of aligning the defendant

with the clergy sex abuse scandal.   In addition, the defendant

failed to support his argument that the Commonwealth knowingly

failed to disclose potentially exculpatory evidence that the

defendant and victim were jokingly tussling before the illegal

touching took place.   There was no error.   However, for the

reasons stated supra, we reverse the judgment and set aside the

verdict.

                                     So ordered.
