Opinion
No. 15–P–20.
06-06-2016
COMMONWEALTH v. Joseph BARROS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of assault and battery in the District Court, alleging error in the admission of prior and subsequent bad acts evidence. We affirm.
Background. The victim was the sole witness at trial. Based upon her testimony, the jury could have found the following facts. In 2010, the defendant and the victim were engaged in a dominant/submissive sexual relationship. At some point, the defendant took nude photographs of the victim. The defendant threatened to disseminate the photographs to the victim's children, neighbors, and coworkers if the victim did not do as the defendant told her. On November 25, 2011, the defendant showed the graphic digital pictures to the victim by inserting a storage drive into her computer. When the victim attempted to take the drive out of the computer, the defendant struck her and broke her jaw. This 2011 act was the basis of the assault and battery charge in the complaint against the defendant.
Before trial, both the defendant and the Commonwealth filed motions in limine regarding evidence of the defendant's prior and subsequent bad acts. The Commonwealth sought to introduce evidence that, in mid–2010, the defendant became enraged upon learning that plumbing repairs had been completed at the victim's residence by a male friend; the defendant ordered the victim down to the basement where he tied her to the ceiling and beat her with a paddle, all the while threatening to expose the nude photographs to her family. The Commonwealth also wanted to put before the jury that in the winter of 2012, during one of many trips to Boston for her follow-up treatment, the defendant told the victim, “[i]f you didn't have that broken jaw I'd bust your face again.” Finally, the Commonwealth sought to introduce evidence that on June 13, 2012, after the defendant had posted the nude pictures of the plaintiff in and around her home and had sent her telephonic text messages threatening to do the same at her workplace, the victim obtained an emergency abuse prevention order. The defendant refused to be served, and stated to police that he would tell the plaintiff's employer that she had given him herpes. The defendant moved to exclude all this evidence and, after a hearing, the judge allowed the Commonwealth to adduce evidence regarding the 2010 incident of threats and assault and battery, the defendant's 2012 statement that he would break the victim's jaw again, and the defendant's acts of leaving the sexually explicit photographs at the victim's home and threatening to disseminate the same. The judge precluded evidence of the victim's restraining order and of the defendant's refusal of service, and he also precluded evidence of the defendant's statements to police regarding his intent to contact people and tell them that the victim had given him herpes.
The victim testified in accordance with the judge's ruling, and he gave a contemporaneous limiting instruction as to uncharged conduct. In his final charge, the judge again informed the jury that they could consider “the testimony that [he] allowed in over the Defendant's objection solely on the limited issue of his motive or intent as it relates to the crime that has been charged.” The judge continued, “[s]pecifically, you may not use it to conclude that if the Defendant committed these other acts that the witness testified to, therefore he must have also committed this charge.”
Discussion. The sole issue on appeal is the propriety of the judge's partial allowance of the Commonwealth's motion in limine. We review his decision for an abuse of discretion, Commonwealth v.. Lopez, 383 Mass. 497, 500 n. 2 (1981) ; that is, whether he “made ‘a clear error of judgment in weighing’ the factors relevant to the decision.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (quotation omitted).
The judge held a pretrial hearing and ruled that evidence regarding the 2010 assault and battery, the 2012 threat to break the victim's jaw, and the 2012 posting of pictures at the victim's residence was relevant and proper to show the defendant's motive and intent. While such evidence is not admissible to prove propensity, it is admissible for these purposes. See Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 817 (1998) ; Commonwealth v. Vera, 88 Mass.App.Ct. 313, 320–321 (2015) ; Mass. G. Evid. § 404(b)(2) (2015). We conclude that “the judge did not abuse his discretion in allowing the evidence; he carefully engaged in the balancing of probative value versus prejudicial effect,” Commonwealth v. Vera, supra at 322, and “any prejudice from [the victim]'s testimony was sufficiently ameliorated by the judge's limiting instructions, given [with] the testimony and repeated during the final instructions.” Commonwealth v. Walker, 442 Mass. 185, 202 (2004). We see no “palpable error.” Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).
Judgment affirmed.