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14-P-183                                             Appeals Court

                   COMMONWEALTH   vs.   JOSE VERA.


                           No. 14-P-183.

      Worcester.       March 2, 2015. - September 11, 2015.

            Present:   Katzmann, Milkey, & Agnes, JJ.


Evidence, Prior misconduct, Motive, Relevancy and materiality,
     Information stored on computer. Internet. Rape. Indecent
     Assault and Battery. Open and Gross Lewdness and
     Lascivious Behavior. Obscenity, Dissemination of obscene
     matter to minor. Practice, Criminal, Assistance of
     counsel.



     Indictments found and returned in the Superior Court
Department on August 19, 2011.

    The cases were tried before David Ricciardone, J.


     William A. Korman for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


    KATZMANN, J.    The defendant appeals from his convictions by

a Superior Court jury of six counts of rape and abuse of a child

under sixteen, G. L. c. 265, § 23; two counts of indecent

assault and battery on a child under fourteen, G. L. c. 265,
                                                                    2


§ 13B; one count of open and gross lewdness, G. L. c. 272, § 16;

and two counts of dissemination of matter harmful to a minor,

G. L. c. 272, § 28.   The principal issue in this appeal is

whether the prior bad act evidence of the defendant's Internet

searches for pornography involving young girls was properly

admitted, or whether it was admitted in error because it was

impermissible character or propensity evidence.   We affirm.

    Background.    The central evidence in the case was presented

through the testimony of the victim, R.M., who was ten at the

time of trial.   The victim's mother, S.G., also testified, as

well as a first complaint witness, F.C., who was the daughter of

one of S.G.'s close friends.   During the period of abuse, the

victim, R.M., lived with her mother, younger brother, and

sister.   The defendant was the mother's boy friend and the

father of R.M.'s sister.   He did not live with the family, but

did stay overnight at their apartment "very often" and sometimes

supervised the children.

    The abuse occurred over a period of several years.   The

victim testified that one day when she was four years old, she

was lying on her mother's bed watching television when the

defendant approached her and placed his hands under her clothes

and inserted his fingers into her vagina.   He continued the act

for several minutes and then stopped when the victim's mother

called for help with groceries.
                                                                      3


    When R.M. was five years old, the defendant took a bath

with her and pulled his penis out of his boxer shorts.     The

defendant then began to masturbate in the tub and he forced R.M.

to rub his penis; the defendant ejaculated.    The defendant told

the victim that "the white stuff" "was to make babies."        S.G.

entered the bathroom and saw the defendant with an erect penis.

She asked him what he was doing and the defendant responded that

it was an accident.   Another time when S.G. was away, the

defendant sat with R.M. on a living room couch and played an "On

Demand" pornographic adult movie on the television.    In the

movie, the male and female participants, an attorney and client,

undressed and engaged in sexually explicit behavior.     The

defendant began to "copy[] the movie" by touching R.M.'s breasts

and vagina with his tongue and fingers.   When R.M. was seven or

eight years old, the defendant again entered the living room

while R.M. was watching television.   The defendant sat on the

couch, pulled down his pants, and forced R.M.'s mouth onto his

penis.   The assault lasted for ten minutes.   The last sexual

assault happened in the defendant's apartment when R.M. was

eight years old.   R.M. was watching a children's movie in the

defendant's bedroom when her brother discovered an adult digital

video disc (DVD) with a nude woman on the cover.    The defendant

made R.M.'s brother replace the children's movie "Thomas the

Train" with the adult movie, and then he removed R.M.'s brother
                                                                  4


from the room.   The defendant then laid down on the floor with

R.M. and began to copy the sexually erotic scenes with R.M.,

which included indecently touching her and raping her.1

     The victim's mother testified that there was a desktop

computer in the living room of her home and that only she and

the defendant had access to the Internet pass code.   Michael

Kalmbach, a digital forensic specialist, testified that he

conducted a forensic examination of the computer, which

extracted a history of Internet searches involving young girls.




     1
       The incidents that were the bases for the indictments were
categorized by the Commonwealth in its closing argument as
follows:

          "I would ask you to find the defendant guilty of all
     the indictments before you: Six counts of rape of a child,
     that first incident in the bedroom, where he got in bed
     with her, he put his finger inside her vagina; the next
     incident on the couch, where he put his finger inside her
     vagina; the incident on the couch, where he put his penis
     inside her mouth; the last incident, where he put his
     finger inside her vagina, his tongue inside her vagina and
     his penis inside her vagina; two counts of indecent assault
     and battery for touching her breasts and her vagina on the
     outside; dissemination of harmful matter to a minor, the
     two videos, the female lawyer and her client that go
     outside and take each other's clothes off and touch each
     other; the other video that her brother finds, that the
     defendant puts in the DVD player, where a male touches a
     female by licking her breasts, touching her vagina,
     inserting his finger in her vagina, inserting his tongue
     and his penis inside her vagina; and open and gross
     lewdness for the bathtub, for taking his penis out, putting
     his hand on it and putting it in an up and down fashion in
     front of [the victim]."
                                                                      5


In his testimony, he identified specific sites that had been

searched on the computer.

    Worcester police Detective Richard Boulette testified that

he interviewed the defendant in May, 2013, as part of an

investigation.   After the defendant received Miranda warnings,

he agreed to waive his rights and provided an audio-video

recorded statement, which was played in redacted form for the

jury and entered in evidence.   In the interview, the defendant

said that he watched the younger children often but that it was

rare that he ever babysat R.M. (notwithstanding the fact that he

had been in a four-year relationship with her mother and had

stayed overnight in the same house frequently).   With respect to

the bathtub incident, the defendant claimed that his penis

accidentally fell out of his boxer shorts.   He denied ever

harming the victim or engaging in any sexual contact, and first

said that he did not watch pornography, but then said that he

did watch it, but only at his friends' houses.    Regarding the

pornographic DVD, he remembered that R.M.'s younger brother had

found a DVD, but said that he (the defendant) was only holding

it for a friend, and did not show it to R.M.   At one point

during the interview, the defendant said, "Come on serious?       A

300 pound guy slamming the girl on the floor or whatever the

allegation."   In response, the detective noted that he had not
                                                                    6


told the defendant that the movie showed the girl on the floor,

but that in fact was R.M.'s allegation.

    Dr. Rebecca Moles, a child abuse pediatrician, testified

that she had examined the victim when she was eight years old.

She testified that the examination was normal for an eight year

old, but that "a normal examination does not rule out that

penetration occurred or that sexual abuse has occurred."

    The defendant did not testify at trial.   In closing

argument, defense counsel characterized the victim's allegations

against the defendant as pure fabrication created in a desperate

effort to get him out of the household in which she lived.     He

said, "This was an act of a young girl, a sad, young girl, who

was sick and tired of Jose Vera fighting with her mother,

fighting with her family, and fighting with her and her

siblings."   Seeking to further cast doubt on the victim's

charges, defense counsel argued that although the victim claimed

to be "brutal[l]y sexually assaulted from the time that she was

four years old to eight years old," she delayed in raising her

allegations until the end of the abuse.   He also pointed to what

he believed were incredible aspects of the victim's allegations

including the bathtub incident, and, regarding the movie and

DVD, suggested that the victim knew her mother's password to

view "On Demand" movies.   He suggested that although the victim

viewed the movie she described, as well as the DVD, she did not
                                                                          7


view them with the defendant, and, further, that her report of

abuse attributed to the defendant the actions she had viewed in

the movie and DVD.        Defense counsel also asked the jury to focus

on the defendant's repeated statements during the recorded video

interview denying that he had perpetrated any abuse.       Defense

counsel further sought to create a reasonable doubt by pointing

to the testimony of the victim's pediatrician, who said that

there were no indications of sexual assault.

    Discussion.      1.    Internet searches.   The defendant argues

that the Internet searches, which were admitted over his

objection, were irrelevant and constituted prior bad acts that

constituted impermissible character or propensity evidence.          He

contends that the judge erred in allowing that evidence, and

that he is entitled to a new trial.

    As has been noted, the victim's mother testified that there

was a desktop computer in the living room of her home and that

only she and the defendant had access to the Internet pass code.

The investigating detectives removed the computer from the home

and brought it to the New England State Police Information

Network (NESPIN).    Michael Kalmbach, a digital forensic

specialist for NESPIN, conducted a forensic examination of the

computer.   He used several software programs to extract a

history of Internet searches that had been performed on the

computer, and discovered a number of searches involving young
                                                                   8


girls.   In his testimony, he identified specific searches,

including:   "young raw porn," "teen TV porn," "young playground

porn," "hot teen porn," and "first time home teen porn."2

Kalmbach opined that someone had used the computer by typing and

searching those terms.3   The defendant objected to admission of

evidence of these searches, arguing that they were prior bad

acts and should be excluded because they were extremely

prejudicial and constituted impermissible character or

propensity evidence.


     2
       Other searches that Kalmbach testified to finding
included: "young pub porn," "young home raw porn," "young girs
[sic] life fucking porn," "young frist [sic] time homemade
porn," "young bup porn," "teen sleeping ponr [sic]," "sleeping
young porn," "real TV porn," "hot cute teen porn," "homemade
teen hidden sex tape porn," "hidden cameras porn," "first time
teen fuck porn," "bing cook teen teen porn," "angle teen porn,"
"young girls live fucking porn," "young first time homemade
porn," "young playground," and "teen real TV porn."
     3
       The identity of the person who conducted the Internet
searches was disputed at trial. The victim's mother, S.G.,
voluntarily provided the computer for investigation. Kalmbach
testified that there was no way to identify who the actual user
was at the time of the Internet searches. S.G. testified that
she had not conducted the searches, and, during his police
interview, the defendant denied conducting the searches. The
jury were entitled to credit the mother's testimony that only
she and the defendant had access to the pass code, and that she
had not conducted the Internet searches. Based on the evidence
at trial, the jury reasonably could have inferred that the
defendant was the one who conducted the searches. On appeal,
the defendant makes no argument that the computer searches were
conducted by the victim's mother. Compare Commonwealth v.
Carey, 463 Mass. 378, 388 (2012). The Internet searches
ultimately were admitted as prior bad act evidence to show
intent, lack of mistake, and motive.
                                                                   9


     As advanced in its motion in limine and later at trial, the

Commonwealth noted that the defendant was charged with various

sex crimes against the minor victim, including multiple

incidents where the defendant "sexually assaulted [the victim]

by touching her breasts, touching her vagina on the inside and

outside, and inserted his penis inside her vagina, . . . [and]

showed her adult pornography."4   The Commonwealth argued that the

defendant told police that the victim misconstrued his actions,

that his penis was only exposed accidentally, and that he had

never watched pornography in the home where the victim lived.

Based upon the nature of the indictments and the defendant's

denials to police, the Commonwealth argued that the defendant's

Internet Web site searches for pornography involving young girls

were relevant and probative, not to prove bad character, but

rather to establish motive, state of mind, intent, and lack of

mistake or accident.

     While acknowledging that he was "clearly mindful" of the

prejudicial impact to the defendant, the judge concluded that

evidence of "a person who specifically seeks out father/daughter

pornography websites" was relevant and probative of the


     4
       The motion in limine's statement of facts also averred
that the victim "describe[d] incidents where the Defendant would
show her pornographic websites." However, in arguing the
motion, the Commonwealth acknowledged that none of the charges
against the defendant were based on this allegation.
                                                                   10


defendant's motive.   The judge found that the words used by the

defendant to search the Web sites "tend to show a lack of

mistake and a particular intent on the part of [the defendant]."

The searches that were actually admitted at trial involved

"young girl pornography."   The judge ruled that "[o]n the

totality of the circumstances, it does tend to fit the bill of

our case law with regard to lack of mistake, intent, motive and

modus operandi, and further goes to his credibility in terms of

the statement that he made, where under all the circumstances he

denies use of pornography, let alone child pornography."

    The judge provided limiting instructions during the trial

in connection with the testimony about the Internet searches for

pornography involving young girls.   He issued one limiting

instruction prior to Kalmbach's testimony and another in the

final charge.   In the final charge, which was similar to the

first limiting instruction, the judge provided the following

instructions to the jury:

         "You may not take [the Internet searches] as a
    substitute for proof that the defendant committed the
    crimes charged, nor may you consider [them] as proof that
    the defendant has a criminal personality or bad character.
    But you may consider [them] solely on the limited issue of
    motive, state of mind, intent, plan, or absence of mistake
    or accident on the part of the defendant. You may not
    consider this evidence for any other purpose.
    Specifically, you may not use it to conclude that if the
    defendant committed [sic] these Internet searches that he
    must also have committed these charges [sic]."
                                                                   11


    "It is well settled that the prosecution may not introduce

evidence that a defendant has previously misbehaved, indictably

or not, for the purpose of showing his bad character or

propensity to commit the crime charged."    Commonwealth v.

Copney, 468 Mass. 405, 412 (2014) (citation omitted).

Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011).

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), at 44

(2015).   Where evidence is relevant for one of those purposes --

under the "more exacting standard" applied to "other bad acts"

evidence because such evidence is "inherently prejudicial,"

Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014) -- 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."    Ibid.

    With respect to the charge of open and gross lewdness,

stemming from the bathtub incident, the defendant claimed his

exposure was accidental.    He repeatedly told the police that his

genitalia were accidentally exposed while he was in the bathtub

with the victim.   Evidence of Internet searches for young girl

pornography is relevant here because it is highly probative of
                                                                   12


the defendant's intent and the lack of innocent mistake in

exposing his genitals to a young girl.   See Commonwealth v.

Wallace, 70 Mass. App. Ct. 757, 765 (2007) (where the defendant

claimed that the touching of a young girl's breast was

accidental, items found in the defendant's automobile, including

small-sized girls' or womens' underwear, photographs of clothed

young girls playing at outdoor locations, photographs of nude

adults engaged in sexual activity, and two pornographic

magazines entitled "Pure Eighteen," which contained pictures of

teenage girls, were properly admitted because they were

"substantive evidence of the defendant's voyeuristic interest in

sexual matters and young females").   The evidence in Wallace was

"admissible to show [the defendant's] sexual intent, predatory

motive, and intentional rather than accidental touching of the

victim," id. at 758, and was properly admitted for those reasons

here as well.

    With respect to the other charges -- rape and abuse of a

child, indecent assault and battery on a minor, dissemination of

matter harmful to a minor -- the defendant denied all

allegations in his interview with the police.   The defendant

repeatedly stated that he did not engage in sexual behavior with

the victim and that he had no desire to harm her.   The computer

search history, however, was admitted in evidence to prove that

the defendant entered the word "porn" together with "young,"
                                                                     13


"playground," "teen," "girls," and other similar themes, and

established that the defendant actively and purposely sought

sexually explicit material relating to young girls.

    The contested evidence here is relevant.      "The case law is

particularly clear that evidence of uncharged sexual misconduct,

when not too remote in time, 'is competent to prove an

inclination to commit the [acts] charged . . . and is relevant

to show the probable existence of the same passion or emotion at

the time in issue.'"     Commonwealth v. Hanlon, 44 Mass. App. Ct.

810, 817-818 (1998), quoting from Commonwealth v. King, 387

Mass. 464, 470 (1982).    "That the [contested evidence] may . . .

have an inflammatory effect on the jury does not render [it]

inadmissible as long as [it] possess[es] evidentiary value on a

material matter."   Commonwealth v. Carey, 463 Mass. 378, 389

(2012), quoting from Commonwealth v. Olsen, 452 Mass. 284, 294

(2008).   "Evidence is relevant if it has a 'rational tendency to

prove an issue in the case,' . . . or render a 'desired

inference more probable than it would be without the

[evidence].'"   Commonwealth v. Keo, 467 Mass. 25, 32 (2014),

quoting from Commonwealth v. Sicari, 434 Mass. 732, 750 (2001),

cert. denied, 534 U.S. 1142 (2002).     The evidence does not need

to be conclusive of motive in order to be admissible.

Commonwealth v. St. Germain, 381 Mass. 256, 271 (1980).     If
                                                                  14


evidence "merely suggests rather than 'clearly shows' a motive,"

it may still be admissible.    Ibid.

    The defendant argued that the prejudicial effect of the

evidence far outweighed its probative value.     We disagree,

acknowledging, as the judge did below, that the evidence was

prejudicial, but admissible because it was highly probative of

the defendant's intent and motive.     Here, the search for

pornography involving young girls is "competent to prove an

inclination to commit the [acts] charged . . . and is relevant

to show the probable existence of the same passion or emotion at

the time in issue."   Commonwealth v. Hanlon, 44 Mass. App. Ct.

at 817 (citation omitted).    It was also admissible as

"substantive evidence of the defendant's voyeuristic interest in

sexual matters and young females."     Commonwealth v. Wallace, 70

Mass. App. Ct. at 765.   See id. at 758 (evidence was "admissible

to show his sexual intent [and] predatory motive"); Commonwealth

v. Bradshaw, 86 Mass. App. Ct. 74, 78-80 (2014) (judge, after

carefully engaging in the required balancing of prejudice and

probative value did not abuse his discretion in admitting in

evidence the defendant's statement that he had been having

desires for boys ranging from age nine years to fourteen years -

- which included the age of the alleged victim -- because the

statement was probative of a motive to engage in the alleged act
                                                                   15


and of the defendant's state of mind at the time of the

incident).5

     "We entrust questions of relevancy and prejudicial effect

to the sound discretion of the trial judge."   Commonwealth v.

Carey, 463 Mass. at 388.   We uphold the judge's decision unless

we conclude that he "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."

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation

and citation omitted).

     We conclude that the judge did not abuse his discretion in

allowing the evidence; he carefully engaged in the balancing of

probative value versus prejudicial effect.   See Commonwealth v.

Bradshaw, 86 Mass. App. Ct. at 79.   The judge was selective in

what he allowed, excluding several Internet searches because

     5
       We are unpersuaded by the defendant's contention that the
prior bad act evidence was rendered irrelevant because, when the
prosecutor questioned the victim about the "youngporn.com" Web
site ("Did the defendant ever show you anything on the
computer?"), the victim answered, "He didn't, like, directly
show me." The prosecutor attempted to make an offer of proof
that the expected testimony was only one of multiple searches,
but he then voluntarily agreed to "move on" from the testimony.
Quite apart from the Web sites the victim may or may not have
seen, the searches by the defendant were relevant and probative
to establish the defendant's lack of mistake, intent, motive,
and state of mind when he committed the sexual crimes. See
Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 327 (1996)
("Still further and most important, [prior bad acts occurring
during the same week as the alleged crime] could be taken as
illustrative of the defendant's mental state at the time").
                                                                  16


they were too inflammatory, where they included the term "rape,"

compare id. at 80, and excluding another search for relevancy

reasons.   He also ordered the prosecutor to reduce the number of

searches entered in evidence -- further indication that he was

being "commendably sensitive to the potential for undue

prejudice."   Commonwealth v. Helfant, 398 Mass. at 225.

Moreover, the limiting instructions throughout the trial

instructing the jurors to use the evidence only for the proper

purposes of showing the defendant's motive, state of mind,

intent, plan, or absence of mistake or accident were sufficient

to prevent undue prejudice.   See Commonwealth v. Anderson, 445

Mass. 195, 214 (2005).   "We presume that the jury followed the

judge's instruction."    Commonwealth v. Pillai, 445 Mass. 175,

190 (2005).

    Furthermore, the Internet search evidence especially

contradicts the defendant's denial of the allegations in the

indictments, as well as his assertions that he never watched

pornography, that the victim was fabricating the crimes, and

that "he never had one iota of intent to harm" her.   The judge

allowed the testimony to come in for the additional purpose of

refuting the defendant's denials.   This purpose was proper as

well.   See, e.g., Commonwealth v. Maimoni, 41 Mass. App. Ct.

321, 327 (1996) (evidence of prior bad acts "admissible on the

Commonwealth's behalf for the elementary purpose of countering
                                                                  17


the defendant's protestations following [the victim's]

disappearance that he would not sail accompanied only by a woman

not his wife").

     Finally, even if it was error to allow the Internet search

evidence, when viewed in context of the entire case, it is

unlikely to have unduly prejudiced the defendant.   Other

evidence the jury heard included significantly more inflammatory

and graphic testimony from the victim and her mother about

sexual assaults and rape, beginning when the victim was only

four years old and ending when she was eight years old.     The

jury heard testimony about forcing the victim to watch and

replicate pornography, and bathing with the young victim with

his penis exposed, while forcing her to rub his penis, resulting

in ejaculation.   The jury also saw a one and one-half hour

interview with the defendant from which the jury could infer

guilty knowledge.6   We can say with fair assurance that revealing


     6
       For example, the taped interview included the following:
When questioning the defendant about the pornographic DVD and
his conduct associated with its viewing, the detective asked,
"Why would she make this up? . . . She claimed how in the movie,
the guy had licked the lady and licked the vagina and . . . ."
The defendant, interrupting him, stated, "You're gonna try to
say that I did that to her." The detective responded
affirmatively, "That's what she says. She says you did
everything in that movie to her, you enacted that." In
addition, as noted earlier, at one point in the interview the
defendant asked incredulously about a 300 pound man slamming a
girl on the floor, and the detective answered that that, too,
was the allegation.
                                                                    18


the various searches the defendant conducted on the Internet did

not "substantially sway[]" the jury.    Commonwealth v. Flebotte,

417 Mass. 348, 353 (1994).

     2.   Ineffective assistance of counsel claim.   We briefly

address and reject the defendant's ineffective assistance of

counsel claim.   The defendant asserts this claim in his direct

appeal rather than through the preferred method of a motion for

new trial accompanied by affidavits.    See Commonwealth v. Diaz,

448 Mass. 286, 289 (2007).    He argues that his attorney rendered

ineffective assistance of counsel when he questioned Kalmbach,

the NESPIN expert, as to the date of the Internet searches

because the questioning opened the door to the revelation of

other Internet searches.7    "Because the defendant raises [this]

claim[] for the first time on direct appeal, [its] factual basis

must appear 'indisputably on the trial record' for us to resolve

[it]."    Commonwealth v. Dargon, 457 Mass. 387, 403 (2010),


     7
       The Commonwealth had agreed to limit its questioning
regarding specific Internet searches to one date, February 26,
2011, and was careful to avoid asking questions on direct
examination regarding the specific date because there had been
searches on a broad range of dates. On cross-examination,
defense counsel elicited that the searches to which Kalmbach
testified all occurred on February 26. Because the judge
determined that defense counsel's "specific question regarding
dates [was asked] . . . to make it sound like this was a very,
very isolated, maybe singular incident, at a time when maybe the
defendant wasn't even in the home," he ruled that the
Commonwealth on redirect could elicit that the Web site searches
were not limited to the ones testified to in court, but "there
were others . . . [i]n the dozens."
                                                                  19


quoting from Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).

Here, the record includes substantial discussion about the line

of questioning now in issue and suggests that engaging in this

questioning was a tactical decision made by defense counsel.

Cocounsel explained that a reason for these questions was to

show that the defendant could not have conducted the Internet

searches Kalmbach testified to because the defendant was not in

the home on that date.   She declared, "[I]t was certainly the

correct decision for us, and not intentionally to be

misleading," but rather to alert the jury to the fact that the

defendant did not live there.   On our review of the record, we

conclude that counsel's choice was not manifestly unreasonable,

and that the defendant was not deprived of a substantial ground

of defense.   See Commonwealth v. Saferian, 366 Mass. 89, 96

(1974).

                                    Judgments affirmed.
