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12-P-1659                                                Appeals Court

                 COMMONWEALTH    vs.   GLENN CHRISTIE.


                             No. 12-P-1659.

            Essex.       January 11, 2016. - July 5, 2016.

              Present:   Grainger, Rubin, & Milkey, JJ.


Rape.  Indecent Assault and Battery. Obscenity, Dissemination
     of matter harmful to minor. Evidence, Videotape, Relevancy
     and materiality.



     Indictments found and returned in the Superior Court
Department on June 15, 2007.

     The cases were tried before David A. Lowy, J., and a motion
for new trial, filed on July 2, 2013, was heard by him.


     Alexei Tymoczko for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


     RUBIN, J.   The defendant appeals from his convictions on

four counts of statutory rape, G. L. c. 265, § 23, one count of

indecent assault and battery on a child under the age of

fourteen, G. L. c. 265, § 13B, and one count of dissemination to

a minor of matter harmful to minors, G. L. c. 272, § 28.         The
                                                                     2


Commonwealth concedes that there was no evidence to support one

of the statutory rape convictions, which therefore must be

reversed and the indictment dismissed.    In addition, because

evidence of possession of videotape depictions of adult men

engaged in same-sex sex was improperly admitted to demonstrate

the defendant's sexual interest in the alleged victim, a twelve

year old boy, the convictions on the other counts, except the

dissemination count, also must be reversed.1

     Background.    The alleged victim, whom we shall call Daniel,

testified that in the summer of 2005, when he was twelve years

old and he and his mother were living with the defendant, the

defendant twice performed oral sex on him.     He testified further

that he briefly complied with the defendant's request that he

penetrate the defendant anally.    He also testified that the

defendant went into a "porn store" while Daniel waited in the

car, and purchased a "sex toy," described at trial as a "fake

penis," and two digital video discs (DVDs).    On returning home,

the defendant played one of the DVDs, showing "[a] male and a

female having sexual intercourse" on a DVD player in the living

room.    The defendant also inserted the sex toy into Daniel's

     1
       The parties and thus the judge employed the term
"homosexual" throughout the trial. We therefore utilize that
terminology at some points in our opinion, but acknowledge that
the term, while clinically and semantically correct, is often
considered indicative of disapprobation in contrast to the use
by gay individuals of the preferred terms "gay" or "same-sex."
                                                                      3


anus, stopping when Daniel said he was "uncomfortable."    Daniel

also testified that he later saw "two men having sexual

intercourse" on the other DVD.

    Two of the convictions of statutory rape were based on the

incidents in which the defendant allegedly performed oral sex on

Daniel, and one was based on the alleged incident involving the

sex toy.    As the Commonwealth concedes, there is no evidence to

support the fourth rape conviction.    The defendant was also

convicted of one count of indecent assault and battery on a

child under the age of fourteen, G. L. c. 265, § 13B, based on

the alleged incident in which Daniel had anal sex with the

defendant.    Finally, the defendant was convicted of one count of

dissemination to a minor of matter harmful to minors, G. L.

c. 272, § 28.     There were two possible bases for the

dissemination charge, the alleged playing of each DVD described

supra.

    In 2005, Daniel disclosed to his mother and the police a

single alleged act of the defendant performing oral sex on him,

and on that basis the defendant was charged with one count of

statutory rape.    On the eve of trial, in 2007, Daniel disclosed

to the district attorney and the police all the other alleged

sex acts.    Police obtained a search warrant for the defendant's

residence, a new one to which he had moved in the interim.      The
                                                                    4


defendant was subsequently indicted on the charges of which he

was convicted.

     The defendant is openly gay.    Among the items seized

pursuant to the warrant were eight video home system (VHS)

videotapes from the defendant's bedroom, four containing

heterosexual pornography and four containing same-sex male

pornography, and five VHS videotapes from a storage area in the

basement, three of which were not pornographic, one of which

contained heterosexual pornography and one of which contained

same-sex male pornography.

     The judge concluded correctly that evidence of a man's

homosexuality is irrelevant to whether he has a sexual interest

in children.    See Commonwealth v. Baran, 74 Mass. App. Ct. 256,

284 (2009).    But in part in reliance on our decision in

Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007), he

concluded that the same-sex pornography was relevant to the

defendant's sexual interest in Daniel and to the manner and

means by which the charged rapes and sexual assault were

allegedly committed, that the risk of unfair prejudice from this

evidence did not substantially outweigh its probative value,2 and


     2
       The judge did not have the benefit of the Supreme Judicial
Court's purported retroactive "clarif[ication]" in Commonwealth
v. Crayton, 470 Mass. 228, 249 n.27 (2014), decided during the
pendency of this appeal, that a defendant's burden in seeking to
exclude evidence due to unfair prejudice is lighter than that
                                                                   5


that with a proper limiting instruction the videotapes could be

admitted in evidence.   The judge excluded the heterosexual

pornography.

    The judge recognized that even with a limiting instruction

there was a residual risk of prejudice and, in order to reduce

that prejudice, he suggested that testimony describing the acts

depicted in the videotapes rather than the videotapes themselves

be entered in evidence, on condition that the defendant waive

any argument under the best evidence rule.   The parties agreed

to this procedure, with the defendant preserving his objection

to the admission of the evidence.

    These videotapes were not the subject of the dissemination

charge; the parties agree that none of these videotapes was

shown to Daniel, as they are not in the same DVD format as the

video allegedly seen by him.   The parties also agree that the




court previously asserted. In Crayton, the Supreme Judicial
Court held that "evidence is inadmissible where its probative
value is outweighed by the risk of unfair prejudice to the
defendant, even if not substantially outweighed by that risk."
Given the Supreme Judicial Court's previous use of the test
asking whether the risk of unfair prejudice "substantially"
outweighs its probative value, the judge's use at the time of
trial of that test, rather than what the Supreme Judicial Court
has now articulated as the proper one, was not only
understandable but appropriate. Had the judge had the benefit
of the Supreme Judicial Court's decision in Crayton he may, of
course, have concluded that the challenged evidence was not
admissible.
                                                                   6


videotapes contain only images of adults who do not appear to be

underage and that their possession is lawful.

     At trial, one of the officers who executed the warrant

testified that the first videotape depicted "[a]dult males

engaged in oral and anal intercourse," the second depicted

"[a]dult males engaged in forms of masturbation," the third

depicted "adult males engaged in oral, anal sex and

masturbation."3    The fourth videotape depicted "adult males

engaging in masturbation, oral sex and anal sex," and a fifth

videotape, found in the cellar, depicted "adult males engaging

in oral and anal sexual intercourse," as well as "adult males

using a sex toy that was shaped like a penis."

     The judge instructed the jury as follows:

          "You may consider this evidence solely as it relates
     to the Defendant's sexual interest and state of mind in
     2005 as it relates to [Daniel] and as it relates to the
     manner and means by which the Defendant allegedly
     accomplished the alleged sexual assault. Therefore, in
     order to consider such evidence you would need to find that
     the Defendant possessed these tapes in 2005.

          "This evidence is not admitted on indictment 006
     charging dissemination of harmful materials to a minor.

          ". . .

          "You may not use this evidence that the Defendant
     possessed tapes of males engaged in sexual conduct as
     evidence that the Defendant was more likely to have

     3
        She initially testified that the third tape also included
"sexual acts involving an adult sex toy also known as a fake
penis," but later clarified that she was mistaken about this.
                                                                   7


    committed the crimes charged or that he has a so-called bad
    character or criminal personality. The Defendant is not on
    trial based on the trait of character or personality but
    for the crimes charged in the indictment. Once again you
    may consider this evidence however as it relates to the
    Defendant's sexual interest and state of mind in 2005 as it
    relates to [Daniel] and as it relates to the manner and
    means by which the Defendant allegedly accomplished the
    alleged sexual assaults."

He repeated this instruction as part of the jury charge.

    In closing argument, the prosecutor highlighted the

defendant's possession of the videotapes in arguing that the

jury should convict the defendant.    Specifically, the prosecutor

stated:    "Now, the VHS tapes, what do they depict, what's the

significance of them?    Well, Ladies and Gentlemen, they depict

the same acts that [Daniel] described about what happens to him.

Oral sex, anal sex, masturbation and finally the use of a fake

penis.    That's why it's significant."

    Discussion.     We review the judge's discretionary

determinations about the relevance of the videotapes and the

balance of the probative value of the evidence against the risk

of unfair prejudice for palpable error.    Commonwealth v.

Simpson, 434 Mass. 570, 578-579 (2001).    We review the jury

instruction for prejudicial error.    See Commonwealth v. Cruz,

445 Mass. 589, 591 (2005).

    1.    The descriptions of adult men engaging in sex.     As

relevant to the case before us, the four videotapes seized from

the defendant's bedroom contained images of adult men engaged in
                                                                      8


oral and anal sex.4     We turn first to the admission of the

descriptions of these sex acts in the videotapes seized from the

bedroom, leaving the discussion of the videotape found in the

basement for later.

     a.   Propensity.    The defendant argues that this was

improperly admitted propensity evidence.     Though the distinction

is a fine one, these descriptions were not introduced as

impermissible propensity evidence.     Propensity evidence, the

admission of which is barred, is evidence of a person's

character through reputation or past conduct introduced to

demonstrate that he or she acted in conformity with that

character in the instant case.     See Commonwealth v. Crayton, 470

Mass. 228, 249 (2014).     The judge specifically and properly

instructed the jury that the challenged evidence could not be

used to demonstrate the defendant's propensity to engage in such

conduct in order to prove that he committed the charged act in

this case.

     b.   Sexual interest in Daniel.    Evidence of past conduct

may be introduced for purposes other than proving that the

     4
       Three of the videotapes seized from the bedroom contained
such images. The fourth contained only images of men
masturbating. The Commonwealth, however, makes no argument
defending the admission of descriptions of masturbation. A
fifth videotape, found in the basement, included images of the
use of a sex toy described at trial as a "fake penis." That
videotape and those images are discussed separately, see part 2,
infra.
                                                                    9


defendant acted in conformity with a propensity.     See ibid.

Here the jury were instructed that they could use the videotapes

as evidence of "sexual interest and state of mind . . . as it

relates to [Daniel] and as it relates to the manner and means by

which the Defendant allegedly accomplished the alleged sexual

assault."

     We have held evidence that a defendant possessed

pornography admissible to prove a sexual interest in a child

victim where some feature of the pornography or the

circumstances in which it was found was specifically probative

of that interest.   In Wallace, 70 Mass. App. Ct. at 758, for

instance, the defendant was accused of groping the breast of a

twelve year old girl.     When the police searched his car, they

found photographs of young girls and adult pornography stored

together in the defendant's glove compartment and other

photographs of young girls, adult pornography, and "two small

pairs of girls' or women's panties and bras" stored together in

the defendant's trunk.5    Id. at 759.   We held that all of this

evidence, including the adult pornography, was admissible

together to show a sexual interest in young females, and to

     5
       The police also found KY lubricating jelly in the glove
compartment, and more KY jelly, condoms, clothesline, duct tape,
and a ten-inch steak knife in the trunk. The court considered
the admissibility of the photographs, pornography, and underwear
without reference to these other items. See Wallace, 70 Mass.
App. Ct. at 759, 765.
                                                                    10


rebut the defense that any contact between the defendant's hand

and the victim's breast was accidental.    Id. at 765.   As the

Supreme Judicial Court later explained, "where [the] defendant

alleged that [the] touching of [the] child victim's breast was

accidental, [the] presence of photographs of fully clothed young

girls, photographs of nude adult men and women, pornographic

magazines containing pictures of teenage girls and small-sized

underwear in his automobile was relevant to and probative of

whether [the] touching was intentional."     Commonwealth v. Carey,

463 Mass. 378, 389 (2012) (describing our holding in Wallace).

     As the judge in this case recognized, however, and as this

court has held, evidence of an adult's homosexuality is

irrelevant to sexual interest in children.    See Baran, 74 Mass.

App. Ct. at 284 (gay defendant's sexual orientation was

irrelevant to charges of child rape and indecent assault and

battery on person under age of fourteen).6    In support of a

motion in limine seeking to question jurors during voir dire

     6
       As Justice Fecteau observed when he allowed the new trial
motion in Baran while sitting in the Superior Court, "While not
the subject of extensive discussion in the appellate cases of
the Commonwealth, . . . this subject has received attention in
other jurisdictions: 'Because of its prejudicial character,
evidence of homosexuality may be properly introduced only if it
is relevant to the charged crime. [citations omitted.] In this
case, the evidence was improperly introduced because
homosexuality is not relevant to the crime charged. The belief
that homosexuals are attracted to prepubescent children is a
baseless stereotype.' State v. Bates, 507 N.W.2d 847, 852
(Minn. App. 1993)."
                                                                    11


about whether they held a misconception equating male

homosexuality with pedophilia or child molestation, the

defendant put before the judge two sources demonstrating that it

is well settled within the scientific community that

homosexuality is not correlated with pedophilia or child

molestation.7   Although the judge ultimately denied that motion

on other grounds, while addressing it he explicitly found that

gay men are "not more likely" than heterosexual men to engage in

sexual acts with children.

     The judge thus acknowledged what the Baran court concluded,

that the myth that homosexual men have an interest in sex with

underage children has been discredited.    See id. at 287 (noting

that homosexuality was previously routinely and improperly

"linked with . . . child molestation . . . and pedophilia").

The use of evidence of an adult's homosexuality to demonstrate a

sexual interest in underage boys (or, indeed, underage children

of either gender) is thus impermissible.   Given this, we agree

with the defendant that evidence of his interest in viewing

depictions of adult males engaged in generic acts of same-sex

sex, absent any additional factors like the ones present in

     7
       The sources put before the judge were Jenny, Roesler, and
Poyer, Are Children at Risk for Sexual Abuse by Homosexuals?, 94
Pediatrics 41 (1994), and Herek, Facts About Homosexuality and
Child Molestation, available at:
http://psc.dss.ucdavis.edu/rainbow/html/facts_molestation.html
[https://perma.cc/26HN-9FQE].
                                                                   12


Wallace, is irrelevant to whether he has an interest in sexual

contact with an underage boy.8

     The impropriety of admitting this evidence to show the

defendant's state of mind and sexual interest with respect to

boys becomes clear if one imagines that the evidence was about

adult heterosexual pornography and the victim were a girl.    No

court properly could find a defendant's mere possession of adult

heterosexual pornography relevant to proving his sexual interest

in a female child.   Compare Wallace, 70 Mass. App. Ct. at 765

(adult heterosexual pornography relevant to proving sexual

interest in female child when it was stored and admitted along

with pictures of young girls and small girls' or women's

underwear).   "It is no more reasonable to assume that a

preference for same gender adult sexual partners establishes a

proclivity for sexual gratification with same gender children

than it is to assume that preference for opposite gender adult

sexual partners establishes a proclivity for sexual



     8
       Accord People v. Garcia, 229 Cal. App. 4th 302, 313-314
(2014) ("Trying to draw a connection between a child molester's
sexual orientation and a preference for children of one gender
or the other is problematic to the point of counterproductivity.
'[M]any child molesters cannot be meaningfully described as
homosexuals, heterosexuals, or bisexuals [in the usual sense of
those terms] because they are not really capable of a
relationship with an adult man or woman. Instead of gender,
their sexual attractions are based primarily on age'" [citation
omitted]).
                                                                     13


gratification with opposite gender children."   State v. Ellis,

820 S.W.2d 699, 702 (Mo. Ct. App. 1991).

    To the extent the Commonwealth reads our decision in

Wallace, on which the judge understandably relied, to support

the admission of this evidence, it reads it too broadly.     In

Wallace, adult pornography was found together with pictures of

children and child-sized underwear and was found to have

probative value.   Here, only adult pornography was found.     The

admission of the descriptions of these videotapes for the

purpose of showing interest in sex with an underage boy was thus

error, as was the instruction permitting the jury to use the

evidence for this purpose.

    The ingrained stereotypes and mistaken views still held by

some individuals render evidence such as that introduced here

unfairly prejudicial.   See, e.g., United States v. Delgado-

Marrero, 744 F.3d 167, 205 (1st Cir. 2014) ("[E]vidence of

homosexuality has the potential to unfairly prejudice a

defendant").   Even though there was other evidence that the

defendant here, who never disputed his sexual orientation, was

gay, and that he owned pornography, the error in the admission

of the explicit descriptions of his interest in same-sex sex,

exacerbated by the instruction on its permissible use, was

prejudicial.   See Crayton, 470 Mass. at 249 n.27.
                                                                   14


     This error with respect to intent and state of mind

requires reversal on all counts except that for dissemination,

with respect to which the jury were expressly informed they

could not use this evidence.9   Because there may be a retrial,

though, we turn to the other purposes for which the jury were

instructed they were permitted to use this evidence.

     c.   Manner and means.   The jury were instructed that they

could also use the evidence of the contents of these videotapes

"as it relates to the manner and means by which the Defendant

allegedly accomplished the alleged sexual assaults."      The

Commonwealth asserts that it is reasonable to conclude that the

acts depicted here were "unique enough" to show the defendant

had an interest in engaging in those acts, whether with an adult

or a child.   Indeed, this was the way the Commonwealth

encouraged the jury to use the evidence at trial.

     The Commonwealth concedes, however, that what is depicted

in the videotapes found in the bedroom (which again does not

include the use of a sex toy) are "generic" acts, the ordinary

means of men having same-sex sex.    It follows from our holding

above that, standing alone, an interest in viewing lawfully

possessed depictions of adult men having gay sex is not relevant

to the question whether a male adult has an interest in engaging

     9
       We therefore need not and do not reach the defendant's
constitutional claims.
                                                                  15


in sex acts of that kind with underage boys, just as, standing

alone, an interest in viewing lawfully possessed depictions of

adults engaged in heterosexual sex cannot support a conclusion

that a male adult has an interest in engaging in sex acts of the

same kind with underage girls.     On any retrial, then, this

evidence may not be admitted for the former purpose.

     Finally, although the admission of this evidence is not

defended by the Commonwealth on this ground, we think the jury

might have understood the instruction to mean that the jury were

allowed to use this evidence in determining whether pornography

was used by the defendant to "groom" Daniel to submit to his

advances.10    As described supra, it was alleged that the

defendant showed Daniel pornography (albeit both heterosexual

and male homosexual) as a means of getting him to participate in

these crimes, by preparing him to submit to the defendant's

advances.     As experts have testified, "pedophiles often use

various forms of pornography as a way to initiate children into

sexual activity."     Commonwealth v. Halsey, 41 Mass. App. Ct.


     10
       We recognize that courts have not settled on any single
definition of the term "grooming," and that it has been used in
various ways. As used here, we intend "grooming" 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." United States v. Chambers, 642 F.3d 588, 593 (7th
Cir. 2011).
                                                                    16


200, 201 (1996).   And we have held that adult pornography

possessed by a defendant is sometimes admissible in cases

involving child sexual abuse to corroborate the child victim's

testimony that he was shown pornography.     Id. at 203-204.

    It is undisputed, however, that these videotapes were not

shown to Daniel.   Therefore, they are relevant to a claim of

grooming only to the extent that they corroborate Daniel's

allegations that he was shown other pornography.    Any such

corroborating value of the defendant's possession of these

videotapes of generic acts of adult same-sex sex -- at a

different residence, two years after the crimes are alleged to

have been committed -- is too attenuated to overcome the risk of

undue prejudice from this evidence.     These depictions thus may

not be admitted for such a corroborative purpose under the

applicable standard.    Notably, the judge -- whose instruction

did not specify that the evidence could be used to corroborate

the allegation of grooming -- agreed with this assessment,

explicitly barring the jury from considering the defendant's

possession of the videotapes in their deliberations on the

dissemination charge.

    2.   The description of the use of the sex toy.     The final

videotape contained not only depictions of oral and anal sex -–

to which our analysis, supra, applies -– but a depiction of the

use of a sex toy shaped like a penis.     As described supra, one
                                                                   17


of the counts of statutory rape involves an allegation of the

use of such a device in a similar manner on Daniel.

    The Commonwealth has not put any evidence in the record

before us to show that use of a sex toy is a sufficiently

distinctive sexual act that it could be admitted to show the

defendant's specific interest in this practice (if accompanied

by appropriate instructions).   There is nothing in the record to

support a conclusion that this conduct is so unusual that the

probative value of evidence that the defendant possessed a

visual depiction of it is more probative of his interest in

engaging in it than unfairly prejudicial.   Cf. Carey, 463 Mass.

at 387-392 (photographs and video "depicting women in various

states of undress being strangled, ostensibly to death" found on

defendant's computer "were sufficiently similar to the way in

which the defendant assaulted the victim to be relevant to and

probative of his sexual desire").   Nor is there evidence that

interest in the use of such a sex toy with an adult would be

probative of an individual's interest in using one with an

underage child with whom he was unlawfully having sex.   Should

the Commonwealth seek to introduce the evidence of the

defendant's possession of these visual depictions of the use of

a sex toy at retrial as pertinent either to interest in that

particular type of sex act or to the precise manner of

commission of the third count of statutory rape, it will be
                                                                    18


required to demonstrate those things to the judge in the first

instance.11,12

     3.   The fourth conviction of statutory rape.   Finally, the

Commonwealth concedes that there was evidence of only two acts

of the defendant performing oral sex on Daniel, notwithstanding

the prosecutor asserting in closing that there was "another

occasion in [his] bedroom" when the defendant did so.   As the

Commonwealth further concedes, one of the convictions of

statutory rape therefore must be reversed and the indictment

dismissed.

     11
       Because the defendant is not alleged to have shown Daniel
pornography containing depictions of the use of such a sex toy,
this videotape is no more corroborative of Daniel's story about
being shown pornography than the videotapes addressed supra.
     12
       The defendant alleges that the evidence in the affidavit
relied on by the assistant clerk-magistrate in issuing the
search warrant allowing a search of the defendant's home for
"any DVDs or videotapes containing pornographic material,
whether heterosexual or homosexual in nature" was stale since
almost twenty-one months had passed since, according to Daniel,
the defendant had shown him pornography, and the defendant had
moved in the interim.

     The affidavit, however, included statements by the
defendant from 2005 that he "stored" pornography at his home and
that he owned (rather than, for example, rented) ten
pornographic "VCR tapes" and had purchased a pornographic DVD.
There was also a statement from the affiant police officer, an
investigator of child abuse and sexual assaults since 1989, that
pornography "might reasonably remain in the possession of a
pedophile for many years." The evidence on which the assistant
clerk-magistrate relied therefore was not stale for probable
cause purposes. The description of the evidence to be seized
was also sufficiently particular to meet constitutional
requirements.
                                                                 19


     Conclusion.    Although we express no opinion on the

defendant's guilt or innocence of the very serious charges

against him, for the reasons described supra, the defendant's

convictions on one of statutory rape charges must be reversed,

the verdict set aside, and the indictment thereon dismissed, and

the defendant's convictions on the remaining statutory rape

charges and the indecent assault and battery on a child under

the age of fourteen charge must be reversed, and the verdicts

set aside.    The conviction on the dissemination charge is

affirmed.13

                                     So ordered.




     13
       For the reasons given by the judge, we find no merit to
the defendant's claim contained in his motion for a new trial of
ineffective assistance of counsel.
