COMMONWEALTH vs. RYAN COATES.
No. 14-P-1547.
Appellate Court of Massachusetts
July 15, 2016
89 Mass. App. Ct. 728 (2016)
CYPHER, COHEN, & NEYMAN, JJ.
Bristol. March 9, 2016. - July 15, 2016.
Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Practice, Criminal, Rеquired finding, Identification of defendant in courtroom. Evidence, Identification, Expert opinion, Relevancy and materiality. Witness, Expert. Identification. Internet.
At the trial of indictments charging, inter alia, indecent assault and battery on a child under the age of fourteen, circumstantial evidence of the defendant‘s identity as the assailant (i.e., evidence showing that the defendant lived with the victim and her mother, watched the victim when her mother was out, helped the victim with her toilet training, and moved out after the victim reported the abuse to her mother, as well as the defendant‘s own testimony that he lived with the victim and her mother during the time period of the alleged аbuse, babysat the victim, participated in her toilet training, and moved out after the mother confronted him with the allegations of abuse) was sufficient to support his convictions. [730-732]
At the trial of indictments charging indecent assault and battery on a child under the age of fourteen and dissemination of material harmful to a minor, the judge neither erred nor abused his discretion in excluding from evidence the opinion of an expert witness that the defendant did not fit the profile of a pedophile, where, although the profile evidence was proferred in the form of a negative (i.e., that the defendant did not fit the profile of a sex abuser), such profile testimony is prohibited on the ground that it is fundamentally irrelevant [732-735]; where such profile evidence of characteristics exhibited by others convicted of a similar crime is not analogous to evidence of good character pertaining to traits personal to the defendant [735]; where such profile evidence is not analogous to the psychiatric evidence that is routinely admitted in other procedural contexts, in that profile evidence does not assess only the defendant‘s own mental condition, and in that it is not like a psychiatric profile that mаy aid in the purpose of prognostication but cannot prove that the defendant performed or did not perform some alleged wrong in the past [735-736]; and where, even if such profile evidence were relevant, the defendant failed to meet the foundational requirements necessary for a determination that the expert opinion was scientifically valid [736-737].
At the trial of indictments charging indecent assault and battery on a child under the age of fourteen and dissemination of material harmful to a minor, the judge did not abuse his discretion in the admission of testimony regarding the titles of pornographic imаge and video files as well as the words used in
INDICTMENTS found and returned in the Superior Court Department on June 21, 2012 and August 9, 2012.
The cases were tried before D. Lloyd Macdonald, J.
Alexei Tymoczko for the defendant.
Shoshana Stern, Assistant District Attorney, for the Commonwealth.
CYPHER, J. A jury convicted the defendant, Ryan Coates, of three counts of indecent assault аnd battery on a child under the age of fourteen, see
Background. We summarize the facts that the jury could have found, reserving some details for later discussion of the issues raised by the defendant.
The victim, A.E., was five years old at the time of trial. When A.E. was two years old, the defendant, who was her mother‘s boyfriend, moved in with her and her mother. The defendant was regarded as a father figure to A.E.; the three ate meals together and went on family outings; and the defendant shared parenting duties with A.E.‘s mother, putting A.E. to bed at night, picking her up from day care, assisting in her toilet training, and babysitting her when her mother was not at home.
Sometime between December, 2009, and May, 2012, bеfore A.E. was toilet trained, the defendant began to sexually assault her. On occasions when A.E.‘s mother was not at home, the defendant touched A.E.‘s anus with his penis and stood behind
When A.E. was four years old, she reported the abuse to her mother, who testified at trial as the first complaint witness. According to the mother‘s testimony, on May 9, 2012, after she congratulated her daughter for using the toilet and wiping herself, A.E. responded, “[The defendant] would be prоud of me,” and proceeded to tell her mother that “[the defendant] massaged [her] bum with his pee-pee to get the poop out.” To illustrate, A.E. made a humping motion and said, “One time [her] bum hit his stomach.” After hearing A.E.‘s account, her mother took her over to a friend‘s house to spend the night away from the defendant. The following day, A.E.‘s mother told the defendant to leave the family‘s home, and A.E. did not see the defendant again until more than one year later, on the day of trial.
Sufficiency of identity evidence. The defendant argues that there was insufficient evidence of his identity as the assailant to support his conviction of the three counts of indecent assault and battery. We review any error for a substantial risk of miscarriage of justice. Commonwealth v. Doty, 88 Mass. App. Ct. 195, 198 (2015).
On a claim of insufficient evidence, we review the evidence in the light most favorable to the Commonwealth to determine
The defendant‘s sufficiency challenge is based on A.E.‘s failure to identify the defendant in the court room as the person about whose indecent assault and battery she was testifying.3 The Commonwealth was required to prove that the defendant, Ryan Coates, was the same Ryan named by A.E. as her assailant. See Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995). “[B]ald identity of name without confirmatory facts or circumstances is insufficient to prove identity of person.” Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979). “Although very slight evidence might have been enough, at least something more than identity of names was necessary.” Lodge v. Congress Taxi Assn., 340 Mass. 570, 575 (1960).
The evidence showed that “Ryan” lived with A.E. and her mother, watched A.E. when her mother was out, helped A.E. with her toilet training, and moved out after A.E. reported the abuse to her mother. The defendant himself later testified and acknowledged that he lived with A.E. and her mother during the time period of the alleged abuse, babysat A.E. when her mother was not home, participated in A.E.‘s toilet training, and moved out of the family‘s home after A.E.‘s mother confronted him with the
Presented with this circumstantial evidence, the jury could draw the inferences necessary to determine the identity of the defendant beyond a reasonable doubt.4 Commonwealth v. Tavares, 87 Mass. App. Ct. at 475 (circumstantial evidence sufficed to prove identity).
Exclusion of defendant‘s profile evidence. The defendant claims that the judge abused his discretion by excluding from evidence Dr. Fabian Saleh‘s expert opinion that the defendant did not fit the profile of a pedophile. The defendant raised his claim of error at a motion in limine hearing and again at trial, preserving the issue for appeal under the prejudicial error standard. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 54 (2003).
Prior to trial, Dr. Saleh met with the defendant for six and one-half hours, interviewed him, reviewed his medical records and police reports, and gave him questionnaires designed to test his psychosexual predilections. After evaluating the defendant, the doctor concluded that he did not fit the profile of a pedophilic sex offender. Dr. Saleh also reviewed a recording of the Sexual Abuse Intervention Network (SAIN) forensic interview of A.E. At trial, the doctor testified that the SAIN interview was compromised by suggestive conduct on the part of the interviewer toward A.E.
Following a hearing on motions in limine, the judge ruled that Dr. Saleh‘s testimony concerning the psychosexual profile of the defendant was inadmissible.5 Citing Commonwealth v. Day, 409 Mass. 719 (1991), and Commonwealth v. Trowbridge, 36 Mass.
App. Ct. 734 (1994), S.C., 419 Mass. 750 (1995), the judge held that “the use of criminal profiles as substantive evidence is inherently prejudicial. It substitutes generality for specificity and preconceptions for evidence.”
“The admission of [expert testimony] is largely within the discretion of the trial judge and he will be reversed only where the admission constitutes an abuse of discretion or error of law.” Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539 (2012), quoting from Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). “[A] judge‘s discretionary decision constitutes an abuse of discretion where we conclude the judge 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).
Here, the judge exercised sound discretion and based his decision to exclude the criminal profile testimony of Dr. Saleh on a correct interpretation of our law of evidence. Cf. Commonwealth v. Kulesa, 455 Mass. 447, 455 (2009) (decision based on erroneous interpretation of law was not exercise of discretion).
Althоugh the defendant characterizes the admissibility of the evidence proffered in this case as an issue of first impression in Massachusetts, acknowledged but passed over by the Supreme Judicial Court in Commonwealth v. Trowbridge, 419 Mass. at 756-757, we find that our law of evidence is sufficiently well developed that the trial judge could, and did, draw upon clear authority to determine that profile evidence is inadmissible. In Commonwealth v. Federico, 425 Mass. 844, 850 (1997), the Supreme Judicial Court provided guidance for the use of expert testimony in the context of sex abuse cases, and in language apposite to this case, the court held that “with respect to the accused, the expert mаy not provide profiles or testify as to the typical attributes or characteristics of the perpetrators of child abuse.”
The prohibition against profile testimony arises from the court‘s recognition that such evidence is fundamentally irrel-evant.
That the evidence in this case was proffered in the form of a “negative” profile - whereby the defendant sought to demonstrate that he did not fit the profile of a sex abuser - does not compel a different result. Although the profile was offered to show that the defendant did not fit the type, the effect is ultimately identical. Implicit in the defendant‘s assertion that he does not match a criminal profile is the assumption that such a profile would be probative if introduced to prove that someone who matched the profile wоuld be more likely to have committed the crimes. Our cases instruct otherwise. See Commonwealth v. Day, supra (evidence concerning a “child battering profile” does not meet relevancy test); Commonwealth v. Poitras, 55 Mass. App. Ct. 691, 694 (2002) (“admission of [profile] testimony . . . has been condemned by the appellate courts of this Commonwealth as error, especially where the particular characteristics the expert testified to could be taken by the jury to identify the defendant as fitting the profile and therefore more likely than not to have committed the crime“); Commonwealth v. Deloney, 59 Mass. App. Ct. at 57 (“It is a fundamental principle of our system of criminal justice that we do not convict pеople of crimes on the basis of statistics or models“); Commonwealth v. Caraballo, supra (criminal profile evidence “does not tend to prove that [the defendant committed the crime charged]“); Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 285 (2014) (appellate counsel ineffective for failing to raise erroneous admission of profile testimony).
The defendant likens the criminal profile testimony to character evidence, and argues that, as with a reputation for good character, the proffered profile evidence should be permitted to establish a pertinent character trait: that the defendant is not a pedophile, and that he therefоre is less likely to have sexually abused A.E. According to time-honored practice, a defendant is entitled to introduce evidence of his own good character to establish that he is not the type of person to commit the charged offense. The rule rests on the premise that “[a] man of good character is unlikely to be guilty of a crime involving moral turpitude.” Commonwealth v. Nagle, 157 Mass. 554, 554 (1893). See generally
Similar to his argument concerning character evidence, the defendant contends that the proffered criminal profile evidence is analogous to the psychiatric evidence that is routinely admitted in other proceedings, and should likewise be deemed admissible here. We find that the procedural contexts to which the defendant refers are distinguishable from the present case.
Psychiatric evidence adduced to assess whether a defendant is competent to stand trial or is criminally responsible for an alleged crime serves distinct functions. “An examination to determine competency has a ‘limited, neutral purpose.‘. . . [It] does not bear on the defendant‘s guilt, but on his or her current ability to
Psychiatric profile evidence is admissible in the context of sexual dangerousness hearings, sex offender registration hearings, and involuntary commitment hearings, as a means of predicting a defendant‘s conduct. “[W]hether a person suffers from a mental abnormality or personality defect, as well as the predictive behavioral question of the likelihood that a person suffering from such a condition will commit a sexual offense, are matters beyond the range of ordinary experience and require expert testimony” (emphasis supplied). Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 587-588 (2004) (sexual dangerousness hearing), quoting from Commonwealth v. Bruno, 432 Mass. 489, 511 (2000). The determination whether a defendant poses a substantial risk of physical harm to other persons is implicitly a statement of probability. Commonwealth v. Nassar, 380 Mass. 908, 916 (1980) (involuntary commitment hearing). “Factors relevant to the risk of reoffense shall include, but not be limited to . . . (f) whether psychological or psychiatric profiles indicate a risk of recidivism.”
Even if we were to deem the criminal profile evidence relevant, the defendant has not met the foundational requirements necessary for a determination that the expert opinion is scientifically valid.7 See Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010) (set-
ting
Admission of pornographic titles and Internet search terms. The defendant next argues that the judge abused his discretion by allowing the Commonwealth to introduce testimony regarding the titles of pornographic files and the words used in Internet searches found on a laptop computer used by the defendant. The defendant contends that the admission of an excessive amount of inflammatory evidence was error because any relevance it may have had was outweighed by its undue prejudice. Because the defendant did not object to the challenged testimony at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Halsey, 41 Mass. App. Ct. 200, 203 (1996).
A laptop computer, owned by A.E.‘s mother, was stationed in the family‘s living room where the defendant regularly used it. The defendant was proficient in computer operations, and helped A.E.‘s mother, who described herself as “[c]omputer illiterate,” to upload photographs onto the device. The defendant also installed a computer cleaning and optimization program, CCleaner, which, according to his testimony, he used to wipe the hard drive at the end of each session.
The defendant and A.E.‘s mother both testified that the defendant watched pornography on the computer often. On two occasions, A.E.‘s mother viewed pornography with the defendant; however, she never accessed pornography herself and expressed discomfort with the defendant‘s pornography viewing habit. On May 6, 2012, suspicious that the defendant had been watching
After A.E. reported that the defendant had sexually abused her and had exposed her to pornography, her mother voluntarily handed over the computer to a police detective, who delivered it for examination to the digital forensic laboratory (laboratory) at the Office of the Attorney General. At trial, David Papargiris, a digital forensic specialist and former director of the laboratory, testified that he had conducted a forensic examination of the computer and had recovered approximately 1,400 image files and nineteen video files that he characterized as pornographic in nature.8 The jury heard that some of those video files depicted adults engaging in anal sex or contained references to anal sex in their titles. In addition, Papargiris testified that he had identified the specific Internet search terms: “Tiny daughter anal,” and “Tiny daughter and mindless behavior.” According to Papargiris, whoever performed the Internet searches had affirmatively typed in those terms.
“All evidence, including that of a violent or sexual nature, must meet the threshold test of relevancy.” Commonwealth v. Carey, 463 Mass. 378, 387 (2012). 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.” Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000), quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).
The search terms entered into the computer and the names of
“Nonetheless, to be admissible, the probative value of the evidence must not be substantially outweighed by its prejudicial effect.” Commonwealth v. Bell, 473 Mass. 131, 144 (2015). See
The very quantity of files in the computer inventory had evidentiary value, because it manifested the defendant‘s sustained
The judge had no duty sua sponte to conduct an analysis to determine whether the risk of inflaming the jury outweighed the probative value of the evidence, or to issue a limiting instruction. Thus, where admission of the evidence did not “fall[ ] outside the range of reasonable alternatives,” there was no abuse of discretion. L.L. v. Commonwealth, 470 Mass. at 185 n.27. Moreover, were we to discern error in the quantity of references to pornographic titles not specifically pertinent to the crimes alleged, where the defense raised no objection to the testimony, we discern no risk of a miscarriage of justice. See Commonwealth v. Halsey, 41 Mass. App. Ct. at 204 (cumulative evidence presented “little risk of a miscarriage of justice“).
Judgments affirmed.