65 N.E.3d 1240
Mass. App. Ct.2016Background
- Defendant Joshua W. Roe, an assistant Boy Scout leader, was convicted by a Superior Court jury of indecent assault and battery on a child under 14 (G. L. c. 265, § 13B).
- Allegations: between Nov. 2011 and Mar. 2012 the defendant made sexual comments to the 13‑year‑old victim and in March 2012 reached into the back seat and touched the victim’s genitals.
- After a phone call in April 2012 in which the defendant made ambiguous statements about sexual thoughts regarding other boys, the victim told his father about the touching and police were notified.
- At trial the judge granted a motion in limine excluding evidence of an alleged prior touching of a different boy, but the victim’s father nonetheless mentioned that prior incident during direct examination; the judge sustained the objection but did not promptly strike the testimony or give a curative limiting instruction.
- The judge later allowed limited reference to "some misconduct" to give context to the April phone call; no contemporaneous limiting instruction was given when the father testified nor was a limiting instruction included in the final jury charge.
- The court of appeals found multiple errors (primarily admission/exposure to prejudicial prior‑bad‑act evidence without a prompt limiting instruction) and reversed the conviction; the court rejected the defendant’s grand jury challenges on the merits but set aside the verdict on trial‑level errors.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Roe) | Held |
|---|---|---|---|
| Admission of evidence about prior bad act (inadvertent disclosure) | Testimony was fleeting/contextual and any error cured by instructions later provided | Testimony violated limine order, was inflammatory, and prejudiced defendant because no prompt curative instruction or striking occurred | Reversed: exposure to the precluded testimony without immediate striking and curative instruction unfairly prejudiced defendant |
| Admission of character/state‑of‑mind evidence (defendant's alleged attraction to boys) | Statement relevant to motive, intent, and state of mind; admissible for limited purpose | Statement was improper character evidence and prejudicial without limiting instruction | Error: statement could be admissible for limited purpose but judge’s failure to give contemporaneous and final limiting instruction rendered its admission prejudicial |
| Motion to dismiss grand jury indictment for insufficient evidence | Grand jury heard testimony describing age, comments, and touching sufficient to establish probable cause | Argued insufficient evidence and grand jury process tainted by withheld/exculpatory evidence and improper references linking troop to Church | Denied: grand jury had sufficient probable‑cause evidence; no showing Commonwealth knowingly offered deceptive evidence or withheld exculpatory material to impair the proceeding |
| Alleged delayed disclosure of new victim testimony | Commonwealth did not act improperly | Defendant argued surprise and prejudice | Not reversible error / not discussed further because unlikely to recur at retrial |
Key Cases Cited
- Commonwealth v. Vera, 88 Mass. App. Ct. 313 (discusses limits on propensity evidence and admissibility for non‑character purposes)
- Commonwealth v. Helfant, 398 Mass. 214 (evidence of other acts may be admissible to show common scheme, absence of accident, identity, intent, or motive)
- Commonwealth v. King, 387 Mass. 464 (factors for assessing similarity and probative value of other‑acts evidence)
- Commonwealth v. Baptista, 86 Mass. App. Ct. 28 (immediate, forceful curative instruction can cure erroneous reference to excluded matters)
- Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74 (defendant’s statements about attraction to young boys admissible for limited purpose with limiting instruction)
- Commonwealth v. McCarthy, 385 Mass. 160 (courts generally will not review sufficiency of grand jury evidence except for probable cause or integrity defects)
- Commonwealth v. O'Dell, 392 Mass. 445 (grand jury integrity grounds for dismissal)
- Commonwealth v. Hunt, 84 Mass. App. Ct. 643 (elements required to dismiss for grand jury integrity defects)
- Commonwealth v. Rosa, 62 Mass. App. Ct. 622 (probable cause may be found on evidence of touching an inner thigh for indecent assault)