Massachusetts Appeals Court Reverses Alleged Child Molester’s Conviction Because of Trial Reference to Prior Sex Assault

The Massachusetts Appeals Court yesterday reversed the sexual assault conviction of a man because a witness at his trial improperly referenced a prior allegation of sexual assault made against the defendant.  The name of the case is Commonwealth v. Roe. 

The defendant volunteered as an assistant Boy Scout leader in Wareham in 2011 and 2012, and he sometimes drove the victim (who was 13 years old at the time) to and from meetings.  It was during these rides that the defendant began making inappropriate comments to the victim, suggesting he could “have his way” with the victim and could “turn him on.”  When the victim asked the defendant if he was gay, the defendant said he was bisexual.  In March of 2012, the defendant and the victim were “jokingly tussling” in the car when the defendant allegedly touched the victim’s genitals.  The following month, the defendant and the victim’s father had a phone conversation during which the defendant denied having touched the victim but admitted to speaking to him inappropriately several times.  The defendant also said he did not “really know” if he had sexual thoughts about boys.  The defendant was charged with, and convicted of, indecent assault and battery on a child under the age of 14 and he appealed.

The defendant had previously been accused of sexually assaulting a different boy.  The defense attorney filed a pretrial motion asking the trial judge to prohibit any testimony related to the prior allegation.  Pretrial motions (called motions in limine) are filed in every criminal case to allow the judge to consider topics that should potentially be shielded from the jury.  In this case, the judge ruled the prior allegation of sexual assault was not committed in a similar manner to the present allegation, the two alleged crimes were not committed close in time, and there was not a close relationship between the two alleged victims.  Therefore, there was no evidentiary value to the admission of the prior allegation other than to prove he has a propensity to commit sexual assaults on boys.  Because propensity evidence is inadmissible, the judge forbade the Commonwealth and its witnesses from referencing the prior allegation.  Nevertheless, during the trial, the victim’s father testified to the contents of his telephone conversation with the defendant.  In violation of the court order, the father said the defendant mentioned the allegation that he had previously touched another boy in an inappropriate fashion.  The defense attorney immediately objected and while the judge sustained the objection, he did not strike the testimony from the record.  The judge also said, “we’re restricting ourselves” and not getting into allegations related to other individuals.  However, the judge then allowed the prosecutor to vaguely refer to “some misconduct” so there would be context to the phone call between the defendant and the victim’s father.

The Appeals Court ruled the trial judge had committed error by failing to strike the father’s testimony regarding the other alleged sexual assault and failing to give an immediate instruction to the jury that it was not to consider the stricken testimony.  Further complicating the issue was that the defense attorney asked to approach sidebar immediately following the improper testimony but the trial judge inexplicably refused to allow the attorneys to approach.  Had the attorneys been permitted to conference the matter with the judge at the sidebar, perhaps they would have collectively decided to proceed with a proper curative instruction which would have saved the conviction.  As a result, the conviction was reversed and the case was remanded to the superior court, where the Commonwealth will need to decide whether to retry the defendant.