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12-P-897                                               Appeals Court

               COMMONWEALTH    vs.   CHRISTOPHER BRADSHAW.


                               No. 12-P-897.

           Middlesex.       October 9, 2013. - July 29, 2014.

             Present:    Cypher, Katzmann, & Maldonado, JJ.


Indecent Assault and Battery. Dangerous Weapon. Evidence,
     Relevancy and materiality, Motive, State of mind, Intent,
     Inflammatory evidence, Knife. Intent. Practice, Criminal,
     State of mind.



     Indictments found and returned in the Superior Court
Department on April 29, 2010.

     One case was tried before Diane M. Kottmyer, J., and one
case was tried before Paul A. Chernoff, J.


     Bruce Ferg, Committee for Public Counsel Services, for the
defendant.
     Fawn D. Balliro Andersen, Assistant District Attorney, for
the Commonwealth.


     KATZMANN, J.       A Superior Court jury convicted the defendant

of indecent assault and battery on a child under the age of

fourteen, G. L. c. 265, § 13B, as a lesser included offense of

aggravated rape of a child, G. L. c. 265, § 23A(a).          A second
                                                                      2


Superior Court jury convicted the defendant of carrying a

dangerous weapon when arrested upon a warrant, G. L. c. 269,

§ 10(b).   In this consolidated appeal, the central question is

whether the admission of the defendant's statement that he was

attracted to younger boys -- a category that includes the victim

-- was reversible error because it amounted to impermissible

character or propensity evidence suggesting that the defendant

was likely to have committed the sexual assault.      The defendant

also argues that the evidence was insufficient to support the

dangerous weapon conviction.     We affirm.

     Background.    1.   The party incident.   The first jury could

have found the following.     On the evening of April 1, 2010, the

defendant attended a party at the townhouse of the victim's

mother, Mona. 1   The victim, Billy, lived in the townhouse with

Mona and his sister, Sarah.     At the time of the incident, Billy

was nine years old and Sarah was twelve.       During the party,

several adults -- including the defendant and Nirva Guirand, a

friend of the defendant and of Mona -- were gathered upstairs in

the mother's bedroom and drinking alcohol.       At the relevant

time, Billy was asleep on the couch downstairs in the living

room.    Sarah testified that she left her bedroom late at night


     1
       Pursuant to G. L. c. 265, § 24C, we employ a pseudonym for
the victim. To further insulate his identity, pseudonyms also
have been assigned to the family members discussed in this
opinion.
                                                                      3


to go down to the kitchen.    When she had partially descended the

flight of stairs, she saw Billy lying asleep on the living room

couch. 2   She saw that his shirt was raised and his pants were

pulled down mid-way.    Sarah testified that the defendant was

leaning over Billy and licking his genital area.      She testified

that lights were on in the living room and that she was able to

see the incident clearly. 3

     Sarah returned upstairs and told Mona about what she saw,

generating substantial commotion in the household.      After Billy

woke up, he told Guirand that the defendant had not touched his

leg and that he did not notice any change to his clothing or to

the sheet covering him while he was asleep. 4    (Mona and Sarah

testified that Billy was a sound sleeper.)      The defendant did

not testify, but in a statement to the police, he said that on

the night in question he was intoxicated, and went downstairs

and smoked a cigarette in the back yard and spoke to Billy, who

was awake.    The results of forensic testing of Billy's

underpants and pajama pants for sperm, seminal fluid residue,

     2
       Billy routinely slept on the couch rather than in his
bedroom.
     3
       Sarah was not wearing glasses when she discovered the
defendant and Billy on the living room couch. Sarah
acknowledged that her vision is blurry without her glasses. She
also testified that her vision was better at the time of the
incident than at trial.
     4
       Billy's conversation with Guirand was read into evidence
by stipulation.
                                                                    4


and amylase (a component of saliva) were negative.   The chemist

who processed the sexual assault evidence collection kit

testified that it is easy for amlyase to rub off or be washed

off clothing.

     Immediately after the incident, Guirand went downstairs and

found the defendant in the back yard, smoking a cigarette.    She

asked him if Sarah "might have seen him touching himself or

using the bathroom," and the defendant said no.   Several days

after the incident, the defendant called Guirand by telephone.

In response to Guirand's question, "Did you touch [Billy]?" the

defendant replied, "I don't think so."   Then the defendant

stated to Guirand that "lately he's been finding himself

attracted to younger guys," particularly between the ages of

nine and fourteen, because they had not yet "developed and . . .

started to have facial hair." 5


     5
       Guirand testified as follows on direct examination by the
prosecutor:

     Q.:   "During that conversation, . . . did [the defendant]
           also tell you about a certain feeling that he had had
           as of late?"

     (Here defense counsel objected and was overruled.)

     A.:   "He said lately he's been finding himself attracted to
           younger guys."

     Q.:   "Did he provide an age range?"

     A.:   "He said between fourteen and nine."
                                                                      5


     2.    The arrest.   The second jury had the following evidence

before them.     On April 7, 2010, an arrest warrant was issued for

the defendant with respect to the April 1 incident.     Detective

Beth Halloran of the Cambridge police department called the

defendant and asked him to meet to "discuss some paperwork."

She planned to arrest him at the meeting but did not inform him

of that.     The defendant chose the location -- near Central

Square in Cambridge -- and asked to meet Detective Halloran

alone.     Prior to this planned meeting, Detective Halloran had

had several telephone conversations and one face-to-face meeting

with him at the police station during her investigation.     For

safety reasons, Detective Halloran arranged for three other

detectives, in plain clothes, to station themselves at various

locations surrounding the scene of the planned arrest.

     When the defendant arrived at the agreed-upon location for

the meeting, at approximately 8:30 P.M., Detective Halloran and

the defendant recognized each other based on their previous

meeting.     When the defendant approached Detective Halloran, who

was standing still, he kept walking.     She testified as to their

interaction:

     "He proceeded to continue walking past me, so I joined in
     with his walk, and I said, 'Where are we going?' And he


     Q.:    "Did he explain or did he give a reason for that?"

     A.:    "He said he didn't like them once they developed and
            they started to have facial hair."
                                                                     6


     said, -- I said, "What are we doing," and he said, 'Keep
     walking.' So, I walked with him, and I said, 'Where are we
     going,' and he said, 'We're going to the tracks.' And I
     said, 'What tracks?'"

Detective Halloran was aware of nearby train tracks and joined

the defendant in walking toward them.    One of the other police

officers, Detective James Diggins, began walking toward

Detective Halloran and the defendant.    When they approached each

other, both officers took the defendant to the ground and then

told him that he was under arrest.    The defendant initially

resisted but was quickly subdued.

     When Detective Diggins first took hold of the defendant, he

noticed an object sticking out of the top of the backpack that

the defendant was wearing.    When the defendant was forced to the

ground, both detectives noticed a knife on the ground outside of

the bag.   The knife was later identified as a large kitchen

knife.   It measured fourteen and one-quarter inches in total

length, including a nine-inch blade.    There was no evidence that

the defendant ever held the knife during the meeting or arrest.

     Discussion.   1.   Defendant's statement.   With respect to

the defendant's statement that he was attracted to young boys,

which was admitted over the defendant's objection (see note 5,

supra), the defendant argues first that it was impermissible

character or propensity evidence suggesting that he was likely
                                                                     7


to have committed a sexual assault on a boy. 6   Second, the

defendant argues that, even if the statement were probative of

his motive, intent, or state of mind, it should have been

excluded because its unfair prejudicial effect substantially

exceeded its probative value.   We disagree. 7

     "[A]s 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).     But

otherwise inadmissible character evidence may be admitted for a

proper purpose, such as proving motive or intent.    See

Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).    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

     6
       The defendant also argues that the evidence was
impermissibly admitted as bad acts evidence. Regardless of
whether any bad acts evidence with respect to sexual acts would
have been admissible had it been introduced, the evidence in
question did not pertain to acts in the first instance: it
pertained only to the nature of the defendant's sexual
attraction.
     7
       Because the contested statement is the statement of a
party opponent, it could not be excluded on hearsay grounds.
Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). See
Commonwealth v. Bright, 463 Mass. 421, 435 (2012) (statement of
party opponent is nonhearsay); Mass. G. Evid. § 801 (2014).
                                                                     8


(2014).   Whether evidence is relevant is "entrusted to the trial

judge's broad discretion."   Commonwealth v. Simpson, supra.

     The judge admitted the statement for a limited purpose.

Before the testimony was given, the judge correctly instructed

the jury, "You may consider it 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."   We agree with the trial judge that the statement

was relevant with respect to the limited issues of motive, state

of mind, and intent.   The defendant's statement that he was

attracted to boys between the ages of nine and fourteen is

relevant to explaining why he would touch a nine year old boy

like Billy sexually and what the defendant might have been

thinking the night that the incident occurred.    Not only did the

defendant make this statement within several days after the

incident, he did so in response to Guirand, his friend, asking

him whether he had touched Billy.   Only after the defendant

answered, "I don't think so," did he proceed to explain that

recently he had been attracted to younger boys.   That his

uncertain denial was followed with a statement that he was

attracted to young boys reveals that the attraction he described

was probative of a motive to engage in the alleged sex act and

of his state of mind at the time when the incident occurred.

See Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990),
                                                                     9


quoting from Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957)

("An admission in a criminal case is a statement by the accused,

direct or implied, of facts pertinent to the issue, which

although insufficient in itself to warrant a conviction tends in

connection with proof of other facts to establish his guilt").

     Just as "evidence of the commission of similar crimes by

the same parties though committed in another place, if not too

remote in time, is competent to prove an inclination to commit

the [acts] charged in the indictment . . . and is relevant to

show the probable existence of the same passion or emotion at

the time in issue," Commonwealth v. King, 387 Mass. 464, 470

(1982), quoting from Commonwealth v. Bemis, 242 Mass. 582, 585

(1922), so too is the defendant's statement about his sexual

attraction admissible to prove the "probable existence of the

same passion or emotion" at the time the incident occurred.    Cf.

Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 817 (1998)

(evidence of sexual acts admissible to show common plan or

scheme).   It is plausible that the defendant may never have

acted on his stated proclivity, in contrast to a case involving

the admission of evidence of similar crimes -- where a defendant

has already committed those acts.   But the evidence here is

sufficiently probative with respect to questions of motive,

intent, and state of mind that it survives the threshold inquiry

into relevance.   See Commonwealth v. Sicari, 434 Mass. 732, 750
                                                                    10


(2001) ("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]'" [citations

omitted]).

     Second, the defendant argues that even if there were a

proper purpose for the testimony, such as showing motive or

intent, it should not have been admitted because the prejudicial

effect substantially exceeded the probative value.    We disagree.

     "We review a judge's decision whether the probative value

of evidence is substantially outweighed by the danger of unfair

prejudice under the abuse of discretion standard."    Commonwealth

v. Bishop, 461 Mass. 586, 596 (2012).    See Mass. G. Evid. § 403

(2014).    We will not overturn such a decision absent palpable

error.    Commonwealth v. Bonds, 445 Mass. at 831.

     Here, the judge carefully engaged in the required balancing

of prejudice and probative value.    Compare Commonwealth v.

Little, 453 Mass. 766, 772 (2009).    The judge acknowledged the

potential prejudicial effect and admitted the postincident

statement only after careful analysis as to its probative value.

Indeed, the judge excluded a second statement by the defendant,

made one year prior to the incident, that he was attracted to

young boys, because of its unduly prejudicial effect.    See

Commonwealth v. Paulding, 438 Mass. 1, 12 (2002) (selective

admission of several of defendant's prior convictions indicative
                                                                   11


of judge's proper balancing of prejudicial effect and probative

value).   With respect to the statement that was admitted, the

judge provided a contemporaneous instruction, repeated in her

final charge to the jury, correctly limiting the use of the

statement to possible motives for the alleged act and the

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

incident; she also instructed the jury explicitly that they

could not use the information for propensity purposes.    See

ibid.

     The defendant's reliance on Commonwealth v. Darby, 37 Mass.

App. Ct. 650 (1994), and on Commonwealth v. LaSota, 29 Mass.

App. Ct. 15 (1990), is misplaced.   The circumstances of those

cases bear little resemblance to those we address here.     In

Darby, this court concluded that it was reversible error to

allow the Commonwealth to introduce two photographs:    one of the

child victim fondling himself while naked and one of the

defendant clothed but with his erect penis exposed.

Commonwealth v. Darby, supra at 652, 655-656.    With respect to

the photograph of the victim, we concluded that its relevance,

limited to the issue of the child's sexual knowledge, was

"marginal at best" and that there already was "a plethora of

evidence" on that issue.   Id. at 654.   We concluded that the

photograph of the defendant was "not, directly or inferentially,

relevant to any issue in the case."   But it would have a
                                                                     12


prejudicial effect, encouraging the jury to convict him because

he was a "lewd man."    Ibid., quoting from Commonwealth v.

LaSota, supra at 27.    While inferential leaps could not connect

the photographs in Darby to the issues in that case, here not

even a small jump is necessary to link the defendant's statement

to a central issue in this case:    several days after the

incident the defendant acknowledged that he was sexually

attracted to a category of people that included the victim of

the alleged sexual assault.    See Commonwealth v. Jaime, 433

Mass. 575, 579 (2001) ("[I]n balancing the probative value

against the risk of prejudice, the fact that evidence goes to a

central issue in the case tips the balance in favor of

admission").

     Similarly, this court's conclusion in LaSota that the

admission of evidence that purportedly bore on sexual

proclivities was reversible error is a far cry from what is at

issue in this case.    In LaSota, where the defendant was charged

with several sexual offenses against his minor daughter, we held

that the admission of a pamphlet extolling the virtues of incest

was reversible error.    29 Mass. App. Ct. at 17, 22, 28.    We

concluded that the material had no relevance:     the Commonwealth

did not establish a link between the pamphlet, found in the

defendant's attic among other papers, and the defendant's

beliefs or behavior.    Id. at 25-26.   In contrast with LaSota,
                                                                    13


where there was "no evidence that the defendant . . . approved

of [the pamphlet's] content," id. at 25, there is no daylight

between the content at issue here and the defendant's own

beliefs:    it is his own statement about his own attraction that

is at issue.    Moreover, whereas the defendant in LaSota

testified that he received the pamphlet at least several years

before the claimed abuse began, id. at 23, here the defendant's

statement was made within several days of the incident and in

response to a friend's questions with respect to the incident. 8

LaSota was also "not a case in which the disputed evidence had

direct connection with the crime charged."     Id. at 26.   Contrary

to the defendant's contention, this case provides precisely that

sort of connection.    The judge did not abuse her discretion in

admitting the defendant's statement to Guirand.

     2.    Dangerous weapon.   General Laws c. 269, § 10(b), as

appearing in St. 1974, c. 649, § 2, prohibits a person, "when

arrested upon a warrant for an alleged crime," from being "armed

with or ha[ving] on his person, . . . a . . . dangerous weapon." 9

"The statute is designed to 'discourage[] the carrying of

     8
       We note again that, in her careful balancing of probative
value and prejudicial effect, the judge excluded evidence of a
similar statement the defendant made one year prior to the
incident, while admitting only the statement at issue here --
made within days of the incident.
     9
       The statute also prohibits the possession of specifically
defined weapons under any circumstances. G. L. c. 269, § 10(b).
The defendant was not charged under this provision.
                                                                    14


dangerous weapons which can be used against arresting

officers.'"   Commonwealth v. Turner, 59 Mass. App. Ct. 825, 827

(2003), quoting from Commonwealth v. Thompson, 15 Mass. App. Ct.

974, 974 (1983).   "[T]he term 'dangerous weapon' embraces

objects that are dangerous per se, i.e., objects that are

'designed and constructed to produce death or great bodily harm'

-- objects, in other words, that are 'designed for the purpose

of bodily assault or defense' -- and objects that are dangerous

as used, i.e., 'those things that become dangerous weapons

because they are "used in a dangerous fashion."'"    Commonwealth

v. Turner, supra at 828 (citations omitted).   "The essential

question, when an object which is not dangerous per se is

alleged to be a dangerous weapon, is whether the object, as used

by the defendant, is capable of producing serious bodily harm."

Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).

     This case turns on "whether the evidence permitted the fact

finder to conclude that the defendant used or handled the knife

in a manner that made it a dangerous weapon." 10   Commonwealth v.

Turner, supra at 829.   The defendant argues that, because he

never removed the knife from his bag to use or even hold it, it

was not dangerous.   We disagree.



     10
       The judge correctly instructed the jury that the kitchen
knife is not dangerous per se. The Commonwealth does not argue
to the contrary.
                                                                  15


     The defendant is correct that merely carrying a kitchen

knife, without more, would not be prohibited by the statute.

See id. at 830.   However, this case is not like Turner where,

"[w]hatever the knife's potential for harm at other times and in

other circumstances, the defendant did not use it in a manner

that was capable of causing serious harm or even the

apprehension of serious harm."   Id. at 829.   In Turner, the

defendant's knife was folded in his back pocket, invisible to

the arresting officers, and the defendant consented to a

patfrisk because he had nothing "on him."   Id. at 826.    By

contrast, here, the defendant had positioned a large kitchen

knife such that its handle was protruding from the top of his

backpack, both making it visible and providing the defendant

easy access to an unsheathed knife even without removing the

backpack he was wearing. 11

     The context of each arrest is important as well.     In

Turner, the defendant was simply stopped on the street after the

driver of the vehicle he was riding in committed a traffic

violation, ibid.; here, the defendant was meeting at an arranged

location with a police officer whom he knew to be conducting an

investigation of him.   Moreover, the defendant had asked


     11
       When the knife slid out of the bag -- after the officers
began to take the defendant to the ground -- it was unsheathed.
It is a reasonable inference that it was unsheathed while in the
bag, facilitating rapid access and use.
                                                                  16


Detective Halloran to meet him alone and then asked her to walk

with him to a relatively secluded area, at night, from the busy

location at which they had agreed to meet. 12   The manner in which

the defendant carried the knife and the circumstances

surrounding his carrying the knife defeat any suggestion that he

was doing so with an innocent purpose.   See Commonwealth v.

Blavackas, 11 Mass. App. Ct. 746, 748, 752-753 (1981) (kitchen

bread knife with eight-inch blade found in defendant's purse

would not support conviction under G. L. c. 269, § 10[b], if

defendant was carrying it "for an innocent purpose").     Under the

circumstances, even though the defendant never wielded the

knife, there was sufficient evidence for the jury to conclude

that the defendant used the knife "in a manner that was capable

of causing serious harm," placing him within the ambit of the

statute.   Commonwealth v. Turner, supra at 829.

                                    Judgments affirmed.




     12
       Even if the defendant only brought the knife for his own
protection rather than for offensive use, that would be
sufficient, under the circumstances, to support the conclusion
that it was a dangerous weapon. See Commonwealth v. Thompson,
15 Mass. App. Ct. at 974 (steak knife carried in pocketbook and
intended for protection was dangerous weapon).
