Opinion
17-P-725
05-07-2021
COMMONWEALTH v. Gary NELSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of four counts of indecent assault and battery on a child under the age of fourteen, while acquitting him of other related charges. There were two victims: his daughter, and his girlfriend's daughter. On appeal, the defendant challenges the scope of his ex-wife's testimony, the joinder of the charges involving both girls, and the acquisition and introduction of certain evidence obtained from a search of his cell phone. We affirm.
Background. We summarize the trial evidence and undisputed facts established by the record as follows, reserving a few details for future discussion.
The defendant began dating his girlfriend in July of 2009. At the time, she had a six year old daughter, Catherine (a pseudonym). Catherine had difficulty sleeping alone and sometimes slept in a bed with her mother, including on occasions when the defendant was also present. Catherine testified that at some point in the course of the defendant's relationship with her mother, he began sexually abusing her. According to her testimony, it began with the defendant showing her pornographic videos on his cell phone. Subsequently, she began to wake up while sleeping between her mother and the defendant to find that his hand was on her groin. She testified that, a few times, while she was at his house, he would again show her pornography or rub her genitals, and that once, while they were at a family home in Maine, he again touched her genitals, and then "told [her] to rub his private part." When she did not, he "started doing it with his own hand."
The defendant also had a young daughter, Beth (a pseudonym), with his ex-wife. The defendant's and his ex-wife's divorce had been contentious, and they continued to have difficulties coparenting after the divorce. Beth lived with her mother but visited the defendant regularly. Catherine testified that on two of the occasions when the defendant groped her genitals at his house, Beth was in the room, asleep.
The sexual assaults for which the jury convicted the defendant took place in the summer of 2011. At the time, Catherine was eight years old and Beth was seven. That summer, Beth visited the defendant, Catherine, and Catherine's mother, for a period of eighteen days from late June to mid-July. According to both girls, the sexual assaults took place one night during that visit when Catherine, Beth, and the defendant were sitting together on the bed in the attic bedroom reserved for Beth. Both girls testified that the defendant instructed them to remove their underwear and then licked their genitals. Their accounts differed somewhat as to the specifics of what happened.
According to Beth, Catherine told the defendant to "show [Beth] that thing you do." After initially refusing, the defendant said, "Fine, but you can't tell anybody." He then instructed the girls to take off their underwear, which they did, and rubbed and licked their genitals.
In Catherine's account, the incident began when the defendant started showing her a pornographic video while Beth appeared to be asleep on the bed. Beth, who was in fact awake, asked Catherine what the video was and then watched it with the defendant and Catherine. According to Catherine, after the defendant stopped showing the pornographic video, he instructed the girls to remove their underwear, which they did, and then he licked (but did not otherwise touch) their genitals.
Beth also testified that she saw pornographic videos on the defendant's phone on three occasions. She could only recall the details of two; in both cases, it was Catherine who had shown her the pornography on the defendant's phone.
At the end of the visit, Beth's mother picked her up and drove her home. According to Beth, she told her mother during that drive home about what had happened to her. She testified that at the time, she felt "a little bit uncomfortable," but was not worried about anything or anyone.
Beth's mother testified in part as Beth's first complaint witness. In Beth's mother's account of the first complaint, Beth told her "Mama, I have to tell you something.... Daddy told me not to tell you because if I tell you he's going to go to jail." Beth then told her that the defendant touched and licked her vagina and did the same thing to Catherine. She also told her mother that she was mad at Catherine, who had "told [the defendant] a lie to get his phone from him" in order to "watch [pornographic] movies." Last, according to her mother, Beth expressed a fear that because of what she had said, she would no longer be able to see her father.
After Beth's mother reported the incident, the Haverhill police obtained a warrant to search the defendant's cell phone for "documentation and any other records or communications stored within the cell phone's storage devices that discloses, describes, depicts, or refers to obscene images, child pornography, individuals engaged in sexual activity or posed nude, including those reasonably believed to be under the age of [eighteen]." After the police obtained the phone, a specialist from the Massachusetts State Police searched the phone using digital forensics software. That search revealed that on a number of occasions from late June to early July of 2011, the phone had been used to access pornography websites and view pornographic videos. On June 28, 2011, the phone had also been used to search for the term "hymen," after which the phone's user had accessed a Wikipedia page on the term. Later that day or the next day, the phone again was used to search for the term, and then to view a Google image search results page for the term.
In her initial interview, Catherine denied that the defendant had shown her pornographic videos or touched her or Beth inappropriately. A few months later, Catherine disclosed the pornography and sexual abuse to her mother. However, Catherine's mother did not contact the police at the time.
Catherine and her mother, who testified in relevant part as Catherine's first complaint witness, gave consistent testimony on the circumstances of the disclosure.
In 2011, the defendant was indicted for four counts of indecent assault and battery on a child under the age of fourteen for the assaults that occurred in the attic, and two counts of disseminating harmful matter to a minor.
Two counts were for "touch[ing]" the victims' genitals, and the other two were for "lick[ing]" the victims' genitals.
By early 2015, the defendant's case had not yet gone to trial. Around that time, Catherine's mother relayed to the police Catherine's statement that the defendant had in fact sexually abused her. The defendant was subsequently indicted for conduct allegedly directed at Catherine between June 1, 2010 and July 12, 2011 (that is, a period that included the year prior to the sexual assaults in the attic).
Specifically, he was indicted for two additional counts of indecent assault and battery, and two additional counts of disseminating harmful material.
The indictments were joined, and the case went to trial in July 2015. The jury convicted the defendant of the four counts of indecent assault and battery related to the sexual assaults in the attic but acquitted him of the remaining charges.
Discussion. 1. Beth's mother's testimony. The defendant takes issue with two aspects of Beth's mother's testimony. We find no error.
First, Beth's mother testified that she found Beth's disclosure upsetting. Upon the defendant's objection, the trial judge struck this testimony. The defendant did not request, and the judge did not give, an immediate curative instruction. The defendant now argues that the judge erred by failing to give such an instruction sua sponte. However, "[t]here is no requirement that, in circumstances like these, a judge must give a curative instruction sua sponte." Commonwealth v. Qualls, 440 Mass. 576, 584 (2003). See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005). Also, the trial judge later instructed the jury that they could "not consider as evidence any question, answer, or other matter ... stricken from the record," and we presume that the jury followed such instructions. Id. In any event, even in the absence of explicit testimony, the jury hardly would have been surprised that Beth's mother found her daughter's disclosure of a sexual assault and exposure to pornography upsetting. Cf. Commonwealth v. White, 32 Mass. App. Ct. 949, 949 (1992) (exclusion of testimony showing victim's mother's bias against defendant was harmless in part because of "the natural inference that a mother would feel hostility toward one who had raped her daughter").
Second, Beth's mother testified that Beth had said that she was scared she would not be able to see her father again. That testimony was admitted over the defendant's objection. The defendant now argues that this was error, because the testimony was hearsay. He further argues that the introduction of this evidence was prejudicial because it undermined his theory that Beth had fabricated her allegations because she was motivated "by the intense family dysfunction ... to get [the defendant] out of her life and out of her mother's life."
There was no error. The trial judge correctly admitted the testimony as evidence of Beth's state of mind. Pursuant to the rule, "[s]tatements of a person as to his or her present friendliness, hostility, intent, knowledge, fear, or other mental condition are admissible to prove such mental condition." Mass. G. Evid. § 803(3)(B)(i) (2021). See Commonwealth v. Aviles, 461 Mass. 60, 69 (2011), quoting Commonwealth v. Arana, 453 Mass. 214, 225 (2009) ("[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case"). In other words, to the extent that the statement rebutted the defendant's theory as to Beth's state of mind, it was admissible for precisely that reason.
The parties dispute whether this testimony could have been admitted as appropriate first-complaint evidence. Because the evidence was otherwise admissible, we pass over this question.
We also note that the testimony may not have been as prejudicial as the defendant claims. Beth's mother's testimony directly conflicted with that of Beth, who had testified that she was not worried about anything when she disclosed the sexual assaults. Thus, the complained-of testimony may have undermined Beth's credibility rather than bolstering it.
2. Joinder. In the trial court, the defendant opposed the 2011 and 2015 indictments being tried together, and also sought to sever the 2011 indictments involving Beth from the 2011 indictments involving Catherine. He now argues that the judge erred by trying all ten indictments together. We disagree.
"On appeal, ‘[t]he defendant bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.’ " Commonwealth v. Wilkerson, 486 Mass. 159, 176 (2020), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). We review for an abuse of discretion. See Wilkerson, supra.
We find none, for three reasons. First, the offenses indisputably were related. Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979) ("Two or more offenses are related offenses if they ... arise out of a ... series of criminal episodes connected together."). This is not just a case of similarly-situated victims who were sexually assaulted in a series of connected incidents, see, e.g., Commonwealth v. Mamay, 407 Mass. 412, 416-418 (1990), but rather a case involving multiple sexual assaults on one victim, Catherine, and later simultaneous sexual assaults on both victims. Second, a defendant generally cannot show reversible prejudice from joinder where "evidence of one offense likely would have been admitted at a separate trial of the other," as was the case here. Commonwealth v. Pillai, 445 Mass. 175, 182-183 (2005). Third, the trial judge thoroughly instructed the jury to the effect that "the ten indictments in this case have no evidentiary weight whatsoever," and we presume the jury followed the judge's instructions. See Commonwealth v. Johnston, 467 Mass. 674, 692 (2014).
3. The search of the defendant's phone. The defendant argues that he is entitled to have the evidence relating to the Internet search for the term "hymen" suppressed for three reasons relating to the nature of the police's search of his cell phone. We find none of his arguments persuasive.
As the defendant concedes, these issues were not raised in the motion to suppress filed in the trial court in 2012. He asks that we allow him to raise the issue under the "clairvoyance exception." See Commonwealth v. Hinckley, 422 Mass. 261, 265 (1996). We doubt that exception applies here. See Commonwealth v. Broom, 474 Mass. 486, 492 n.9 (2016) (issue of tracking technology, including cell phone geolocation, was widely known by 2011). That is particularly true where a key caselaw development occurred well before this case went to trial. See Riley v. California, 573 U.S. 373 (2014). See also Commonwealth v. Dorelas, 473 Mass. 496 (2016) (argued April 2015). Because the defendant's argument fails on the merits in any event, we pass over this issue.
First, the defendant argues that the records relating to the Google search for "hymen" were outside the scope of the warrant. See Commonwealth v. Santiago, 410 Mass. 737, 742 (1991). This is belied by the language of the warrant. A cell phone's search and web browsing history are "records ... stored within the cell phone's storage devices." Indeed, we are "hard pressed to imagine what content on the cell phone might have been excluded from the broad scope that this warrant allowed." Commonwealth v. Snow, 486 Mass. 582, 591 (2021).
Second, while conceding that there was probable cause to search his cell phone for evidence of pornographic videos, the defendant argues that such probable cause extended only to searches for downloaded videos. This plainly is incorrect. "[I]n determining the nexus between the items sought and the place to be searched, it [i]s reasonable here to infer that the targeted evidence might not exist exclusively in the [most obvious] folders." Commonwealth v. Dorelas, 473 Mass. 496, 504 (2016). Video content can be found and viewed on a phone through, respectively, search engines and mobile web browsers. Indeed, the State Police specialist's search revealed that was how the phone had been used to access the pornography in question. Moreover, understanding how and when the phone had been used to access and view the pornography readily could have informed the investigation.
To the extent that the defendant argues that the search should have stopped once the pornographic videos were found, we disagree. Further searching could have revealed other pornographic content, or other "records ... that ... refer[ ] to" other obscene matter.
Third and last, the defendant argues that the warrant lacked particularity. A search warrant must "describe with particularity the places to be searched and the items to be seized." Snow, 486 Mass. at 590, quoting Commonwealth v. Holley, 478 Mass. 508, 524 (2017). Although the defendant's arguments regarding the breadth of the warrant are not without some force, the defendant has not demonstrated that he would be entitled to suppression of what was found on his phone even if the search warrant was insufficiently particular. A "defendant is not prejudiced by an overbroad warrant if the Commonwealth does not seek to exploit the lack of particularity in the warrant." Snow, supra. at 591. Thus, where the "proffered evidence would have fallen within a reasonable scope," there is no requirement that the court suppress the evidence. Id. For the same reasons that there was probable cause to search the phone's search and browser history, that history would have fallen within a reasonably-scoped search warrant.
The precise manner in which the police came across the Google search for hymen is not entirely clear on the record before us. The defendant did not raise in his brief any arguments related to the potentially "limited" scope of the plain view doctrine in digital searches. See Snow, 486 Mass. at 595 n.12, and cases cited. Any such arguments are therefore waived. Commonwealth v. Connors, 95 Mass. App. Ct. 46, 48 n.3 (2019), citing Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
4. Testimony as to the Internet search for "hymen" and related matter. Finally, the defendant complains that the testimony as to the search for "hymen" and related matter should have been excluded as being more unfairly prejudicial than probative. See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014). The defendant objected at trial, and so we review for prejudicial error. See Commonwealth v. Morales, 461 Mass. 765, 784 (2012).
Whether to admit the testimony was within the sound discretion of the trial judge. See Commonwealth v. Smiley, 431 Mass. 477, 484 (2000). We perceive no abuse of that discretion. The evidence was probative of the defendant's state of mind and intent. See Commonwealth v. Vera, 88 Mass. App. Ct. 313, 321-322 (2015). Moreover, the trial judge gave limiting instructions to the jury on the use of this evidence both when the testimony was given, and in his final instructions. Id. at 322.
We also note that, as in Vera, "the jury heard significantly more inflammatory and graphic testimony from the victim[s] and [their] mother[s] about sexual assaults." Id.
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Judgments affirmed.