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16-P-1355                                                Appeals Court

                 COMMONWEALTH   vs.   RAYMOND HAMPTON.


                             No. 16-P-1355.

            Barnstable.     June 5, 2017. - July 24, 2017.

                Present:   Sullivan, Henry, & Shin, JJ.


Indecent Assault and Battery. Minor. Evidence, Admissions and
     confessions, Relevancy and materiality.



     Complaint received and sworn to in the Barnstable Division
of the District Court Department on November 2, 2015.

     The case was tried before John M. Julian, J.


     Darla J. Mondou for the defendant.
     Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.


     SULLIVAN, J.    The defendant, Raymond Hampton, appeals from

his conviction of indecent assault and battery on a minor under

the age of fourteen, in violation of G. L. c. 265, § 13B.1        The


     1
       The defendant was charged with two counts of indecent
assault and battery on a minor under the age of fourteen; he was
acquitted of one charge.
                                                                       2


defendant contends that the trial judge abused his discretion

when he allowed the Commonwealth to introduce evidence that the

defendant had watched adult pornography.     We agree that the

admission of this evidence was error, but, under the

circumstances presented, we affirm.

    Background.     Adele2 testified that she lived at home with

her parents, her sister, other tenants, and the defendant.       The

defendant was the child's great uncle.     While living in the

home, the defendant slept in a bedroom belonging to Adele and

her sister.   For this reason, the sisters slept on the couch or

with their parents.     The sisters often went back to the bedroom

to play games, get toys, or watch movies on the defendant's

computer.

    On October 1, 2015, Adele, then nine years old, was in the

defendant's room, when the defendant grabbed her wrist tightly.

At trial she testified that he put her hand under his clothes,

forcing her to touch the skin of his penis.     Before trial, Adele

told an interviewer that the defendant forced her to touch him

over his clothes.      Adele also testified at trial that the

defendant touched her chest, a fact not previously reported.




    2
        A pseudonym.
                                                                     3


Adele told her sister about the incident the next day, but told

her not to tell anybody.

     The second reported incident occurred on October 4, 2015.

Adele testified that the defendant touched her vagina with his

finger, under her clothes, and caused her to bleed.    The

defendant told her not tell anybody about what happened.     Adele

told her sister about this incident at some later point.

     Adele did not tell anyone else about the incidents until

October 21, when she told her counselor.   The counselor then

called the child's parents, who called the police.3

     The defendant was arrested on October 30, 2015.   During an

interview with Detective David Foley, the defendant denied the

allegations of abuse.   He also denied watching pornography with

the children.   The detective asked the defendant whether, if he

got a search warrant for the computer, he would find any

pornography related to children.   The defendant told the

detective that "he had recently watched a pornographic movie

involving two Chinese girls, but that they were not children."

     Before trial, the defendant filed a motion in limine to

exclude testimony regarding his statement, and any description


     3
       The counselor testified as a designated first complaint
witness. The defendant did not object to Adele's testimony that
she had also told others. At trial, inconsistencies in the
child's reports formed one basis of the defense.
                                                                     4


or portrayal of the images found after a forensic analysis of

the computer.    The trial judge allowed the motion in part,

ruling that the images could not be introduced, but that the

detective would be allowed to testify to what the defendant

said.4    At trial, the defendant renewed his objection, which was

overruled.5

     Discussion.    The defendant contends that the trial judge

abused his discretion when he allowed the Commonwealth to

introduce evidence that the defendant had recently watched adult

pornography.    We review the trial judge's ruling for prejudicial

error.    Commonwealth v. Coates, 89 Mass. App. Ct. 728, 732

(2016).




     4
         The defendant waived his Miranda rights.
     5
       At the time of the motion in limine, the prosecutor
represented that the child had seen a pornographic cartoon on
the defendant's computer. No cartoon pornography was found on
the computer. Over objection, the judge allowed testimony about
the defendant's statement, and the detective's description of
what he found, but not the pictures or videos themselves. At
trial, the child testified, over objection, that she saw
something she shouldn't have on the defendant's computer,
without elaboration. The detective testified to what the
defendant said, but nothing else. The judge admitted the
statement on the basis that "this is a sex crime," but later, at
the defendant's urging, precluded the prosecutor from using the
statement for impeachment purposes and barred any reference to
it in closing argument. Because the interview with the
defendant was not recorded, the judge also gave a DiGiambattista
instruction. See Commonwealth v. DiGiambattista, 442 Mass. 423
(2004).
                                                                     5


    1.   Relevance.     "All evidence, including that of a violent

or sexual nature, must meet the threshold test of relevancy."

Id. at 738, quoting from Commonwealth v. Carey, 463 Mass. 378,

387 (2012).   Irrelevant evidence is not admissible.   Mass. G.

Evid. § 402 (2017).     "To be relevant, evidence 'must have a

"rational tendency to prove an issue in the case,"' or 'render[]

the desired inference more probable than it would have been

without it.'"   Coates, supra, quoting from Commonwealth v.

Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000).     We agree, and

the Commonwealth properly concedes, that the detective's

testimony that the defendant admitted to recently watching adult

pornography was wholly irrelevant to prove the charges of sexual

assault on a child.   Moreover, the statement did not corroborate

any aspect of the child's trial testimony, nor was the evidence

probative of the defendant's state of mind, that is, a sexual

interest in children.    See Commonwealth v. Jaundoo, 64 Mass.

App. Ct. 56, 63-64 (2005); Commonwealth v. Christie, 89 Mass.

App. Ct. 665, 671-672 (2016).     Contrast Commonwealth v. Halsey,

41 Mass. App. Ct. 200, 203-204 (1996); Commonwealth v. Vera, 88

Mass. App. Ct. 313, 322 (2015).    Once it became apparent that

there would be no testimony that the defendant showed Adele the

adult pornography found on his computer, the defendant's

statement became irrelevant.     See Jaundoo, supra at 63

("Moreover, there is no indication on the record that much of
                                                                     6


the material . . . bore any probative weight toward

corroborating the complainant's testimony").   The testimony

should have been excluded.

    2.   Prejudice.   It remains to assess whether the error was

so prejudicial as to warrant a new trial.   Here the objection to

the evidence was repeatedly preserved.   See note 5, supra.     In

these circumstances, a conviction will be affirmed only if the

appellate court can say "with fair assurance . . . that the

judgment was not substantially swayed by the error."

Commonwealth v. Meas, 467 Mass. 434, 455, cert. denied, 135 S.

Ct. 158 (2014), quoting from Commonwealth v. Flebotte, 417 Mass.

348, 353 (1994).

    As the defendant points out, there was no limiting

instruction cautioning the jury not to conflate an interest

adult pornography with a propensity to engage in sexual behavior

with children.   Compare Christie, 89 Mass. App. Ct. at 670.    The

case rested largely if not exclusively, on the jury's assessment

of the credibility of Adele and the defendant, who testified.

However, the improper testimony consisted of a single reference

on direct examination of the detective, and a passing reference

in the ensuing cross-examination.   "[T]he inflammatory potential

of the pornographic material was diminished by the fact" that

only the statement that the defendant watched adult pornography,

"and not the images, was submitted to the jury."   Coates, 89
                                                                      7


Mass. App. Ct. at 740.     Contrast Jaundoo, 64 Mass. App. Ct. at

63-64.   The judge also precluded cross-examination of the

defendant on this topic.    At the judge's direction, no reference

was made to the statement in closing arguments.     Compare

Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 769-770 (2007).

    Most importantly, the defendant was acquitted of one of the

indecent assault and battery charges.    As noted above, the

child's version of events at trial was contradicted by other

testimony.   The acquittal indicates that the jury parsed the

evidence carefully and "suggest[s] that [the evidence] did not

have a prejudicial effect on the jury."     Petrillo, 50 Mass. App.

Ct. at 109-110.   That is, "the conviction is sure that the error

did not influence the jury, or had but very slight effect."

Flebotte, 417 Mass. at 353.

                                     Judgment affirmed.
