Opinion
12-P-522
02-13-2013
COMMONWEALTH v. KERRY OGARRO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial the defendant, Kerry Ogarro, was convicted of assault and battery by means of a dangerous weapon, a knife, and assault and battery. The victim was his long-time 'on and off again' girlfriend. The defendant argues on appeal that the judge abused her discretion when she permitted the victim to testify that she was fourteen years old and the defendant was twenty-one years old when they began their relationship. The defendant characterizes this as bad act evidence causing undue prejudice which outweighed its probative value. The Commonwealth characterizes it as relevant evidence tending to show the nature of the relationship, and in any event, any undue prejudice was outweighed by probative value of the evidence.
We conclude that the judge did not abuse her discretion by allowing the testimony. 'Questions of relevancy are entrusted to the trial judge's discretion and will not be disturbed except for palpable error.' Commonwealth v. Roberts, 433 Mass. 45, 51 (2000), quoting from Commonwealth v. Wilson, 427 Mass. 336, 349 (1998). The same standard applies, and we reach the same conclusion, even if the evidence is characterized as bad act evidence. Commonwealth v. Pagan, 440 Mass. 84, 87 (2003). See Mass. G. Evid. §§ 402 and 404(b)(2012).
Judgments affirmed.
By the Court (Cypher, Wolohojian & Rubin, JJ.),