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14-P-1547 Appeals Court

COMMONWEALTH vs. RYAN COATES.

No. 14-P-1547.

Bristol. March 9, 2016. - July 15, 2016.

Present: Cypher, Cohen, & Neyman, JJ.

Indecent Assault and Battery. Obscenity, Dissemination of 

matter harmful to minor. Practice, Criminal, Required 

finding, Identification of defendant in courtroom.

Evidence, Identification, Expert opinion, Relevancy and 

materiality. Witness, Expert. Identification. Internet.

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 and battery on a child under 

the age of fourteen, see G. L. c. 265, § 13B, and one count of 

disseminating matter harmful to a minor, see G. L. c. 272, § 28. 

On appeal, the defendant argues that the judge erred in 
2

excluding expert testimony that the defendant's personality was 

inconsistent with the profile of a sex abuser, the 

Commonwealth's graphic description of pornography was unduly 

prejudicial and created a substantial risk of a miscarriage of 

justice, and the Commonwealth presented insufficient evidence of 

identity to support the conclusion beyond a reasonable doubt 

that the defendant was the person who committed the indecent 

assaults and batteries.

1 Finding no merit in the defendant's 

assertions, we affirm. 

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 

boy friend, 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, before A.E. 

was toilet trained, the defendant began to sexually assault her. 

 

1 The defendant asserts also that his trial counsel was 

ineffective for failing to object to the only evidence of the 

identity of the defendant as the perpetrator.
3

On occasions when A.E.'s mother was not at home, the defendant 

touched A.E.'s anus with his penis and stood behind her, rocking 

back and forth.

2 These incidents took place multiple times and 

at different locations in the house, "[s]ometimes upstairs" in 

the mother's bedroom, "and sometimes in the living room." On 

one occasion, A.E. sat on the couch in the living room with the 

defendant and watched a video recording on the computer showing 

a naked man "massaging" a naked woman with his penis. After 

watching the recording, the defendant performed the same acts on 

A.E. On another occasion, as A.E. lay on her mother's bed 

watching television, the defendant tucked a pillow under her

chin and then stood behind her, "[g]oing back and forth," with 

his hands placed "[o]n [her] bum." A.E. later told her mother 

that "her bum was all sticky and she didn't like it and [the 

defendant] had to wipe her." A.E. testified that the 

defendant's "massaging" hurt her and made her sad, and that she 

cried and told him to stop. 

 

2 Evidence conflicted as to whether penetration occurred. 

On the stand, A.E. testified that the defendant's penis was 

inside her anus. However, in the forensic interview, the 

recording of which was not made part of the appellate record, 

A.E. said that the defendant's penis was on the outside. In 

addition, the examining physician found no physical evidence of 

trauma. This factual ambiguity may be reflected in the jury's 

determination that the defendant was guilty of the lesser 

included offense of indecent assault and battery on a child 

under the age of fourteen.
4

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 proud 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 

whether a rational juror could find all of the elements of the 

charged offense beyond a reasonable doubt. Commonwealth v. 

Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial 
5

evidence is competent to establish guilt beyond a reasonable 

doubt." Commonwealth v. Murphy, 70 Mass. App. Ct. 774, 777 

(2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533 

(1989). "An inference drawn from circumstantial evidence 'need 

only be reasonable and possible; it need not be necessary or 

inescapable.'" Ibid., quoting from Commonwealth v. Merola, 

supra. "Circumstantial evidence may be coupled with 'inferences 

drawn therefrom that appear reasonable and not overly remote' to 

establish guilt." Commonwealth v. Tavares, 87 Mass. App. Ct. 

471, 473 (2015), quoting from Commonwealth v. Dussault, 71 Mass. 

App. Ct. 542, 546 (2008).

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 

 

3 There was evidence that A.E. was five years old at the 

time of trial, that one year had passed since she last saw the 

defendant, that the defendant wore a beard when he lived with 

A.E. and her mother, and that he appeared at trial clean-shaven. 

The jury were entitled to consider A.E.'s failure to identify 

the defendant in their assessment of her credibility, and 

reasonably could have inferred that her inability to provide an 

in-court identification did not preclude the defendant's 

identity as the assailant. See Commonwealth v. Johnson, 470 

Mass. 389, 396 (2015).
6

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 allegations of abuse. Furthermore, the defendant's 

description of putting A.E. to bed in her mother's bedroom, 

where he gave her a pillow and allowed her to watch television, 

corresponded to A.E.'s account of the circumstances surrounding 

an instance of abuse. "It is not necessary that any one witness 

should distinctly swear that the defendant was the man, if the 

result of all the testimony, on comparison of all its details 

and particulars, should identify him as the offender."

Commonwealth v. Doe, supra at 300, quoting from Commonwealth v. 

Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979).
7

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) 

 

4 In light of our determination that evidence independent of 

the Sexual Abuse Intervention Network forensic interview, which 

was not included in the appellate record, sufficed to support

the verdicts, we need not decide whether the unchallenged

introduction of the interview was error, nor whether the 

defendant's trial counsel was ineffective for his failure to 

challenge its admission.
8

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 

 

5 Despite the judge's decision to preclude the profile 

testimony, Dr. Saleh testified on cross-examination that

"[p]edophilic sex offender doesn't just -- it doesn't happen in 

one day, it doesn't occur overnight. You have to have behaviors 

and antecedents suggesting pedophilic interest. There's nothing 

whatsoever in this case." The judge overruled the 

Commonwealth's objection to the statement and defense counsel 

reiterated the doctor's conclusion ("I see no evidence of 

pedophilia in this man") twice during closing argument. 

Consequently, the defendant received more than he was entitled 

to under our law of evidence.
9

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).

Although 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 may not provide profiles or 

testify as to the typical attributes or characteristics of the 

perpetrators of child abuse."
10

The prohibition against profile testimony arises from the 

court's recognition that such evidence is fundamentally 

irrelevant. "A criminal trial is by its very nature an 

individualized adjudication of a defendant's guilt or legal 

innocence. Testimony regarding a criminal profile is nothing 

more than an expert's opinion as to certain characteristics 

which are common to some or most of the individuals who commit 

particular crimes." Commonwealth v. Day, 409 Mass. at 723. 

"[T]he mere fact that a defendant fits the profile does not tend 

to prove that [he committed the crime charged]." Commonwealth

v. Caraballo, 81 Mass. App. Ct. at 539, quoting from 

Commonwealth v. Frias, 47 Mass. App. Ct. 293, 296 (1999).6

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 

 

6 Courts in other states have followed similar reasoning in 

holding profile evidence inadmissible on the ground of

irrelevance, as reflected in the cases collected by the Supreme 

Judicial Court in Commonwealth v. Day, supra (citing "State v. 

Brown, 370 So. 2d 547, 554 [La. 1979] [drug courier profile 

'does not tend to prove that this defendant is guilty of the 

offense charged, nor does it explain any relevant fact with

regard to guilt or innocence']; Duley v. State, 56 Md. App. 275, 

281 [1983] [child battering profile 'totally irrelevant because

it does not tend to prove that (the defendant) committed the 

acts of abuse attributed to him']; State v. Maule, 35 Wash. App. 

287, 293 [1983] ['"relevancy of (such) evidence is not 

discernible']).
11

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 would 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 people 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 
12

permitted to establish a pertinent character trait: that the 

defendant is not a pedophile, and that he therefore 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 Mass. G. Evid. 

§ 404(a) note (2016). In urging the court to adopt his analogy, 

the defendant elides an essential distinction between 

permissible character evidence and impermissible profile 

evidence. "Character is a generalized description of one's 

disposition, or of one's disposition in respect to a general 

trait, such as honesty, temperance, or peacefulness."

Commonwealth v. Bonds, 445 Mass. 821, 829 (2006), quoting from 

Figueiredo v. Hamill, 385 Mass. 1003, 1004 (1982). By contrast, 

criminal profile evidence is a composite of "certain 

characteristics which are common to some or most of the 

individuals who commit particular crimes." Commonwealth v. 

Caraballo, supra, quoting from Commonwealth v. Frias, 47 Mass.

App. Ct. at 296. In other words, character evidence pertains to 

traits that are personal to the defendant; profile evidence

consists of characteristics exhibited by other people who have 
13

been convicted of a similar crime. In an individualized 

adjudication, evidence of characteristics common to others is 

not probative of the defendant's guilt or innocence.

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 understand the proceedings and participate in 

the defense." Vuthy Seng v. Commonwealth, 445 Mass. 536, 545

(2005). A defendant seeking to assert lack of criminal 

responsibility may offer "a psychiatric inquiry into the 

existence or nonexistence of a mental disease or a defect, which 

may preclude a defendant from being criminally responsible for 

his actions. The primary diagnostic source in such a situation 

often is that which the examiner may glean from the nature and 

content of the defendant's statements." Blaisdell v. 

Commonwealth, 372 Mass. 753, 759-760 (1977). See G. L. c. 123, 
14

§ 15(a). The results of these psychiatric examinations address 

only the defendant's own mental condition, which profile 

evidence is useless in assessing. 

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." G. L. c. 6, § 178K(1), 

as appearing in St. 1999, c. 74, § 2 (sex offender registry 

board guidelines). Employed for the purpose of prognostication, 

a psychiatric profile may aid in assessing the likelihood that a 
15

person will someday pose a danger to himself or to others. As 

we stated supra, however, a profile cannot be used to prove that 

a defendant performed or did not perform some alleged wrong in 

the past.

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) (setting forth foundational 

requirements for expert testimony). As we noted in Commonwealth

v. Trowbridge, 36 Mass. App. Ct. at 741 (reversed on other 

grounds), numerous authorities preclude such expert testimony 

because the theory underlying the opinion has not been shown to 

be reliable. Commonwealth v. Lanigan, 419 Mass. 15, 25-26 

(1994). "There is no psychological test that validly detects 

persons who have or will sexually abuse children. . . . Thus, 

it is appropriate to conclude that there is no profile of a 

'typical' child molester." Myers on Evidence of Interpersonal 

Violence § 6.28, at 587 (5th ed. 2011), and cases cited. There

was neither error of law nor abuse of discretion in the judge's 

 

7 Because the judge determined that criminal profile 

evidence was categorically inadmissible, no Daubert hearing was 

held to assess the reliability of the theory underlying the 

proffered expert testimony. See Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993).
16

decision to exclude expert testimony that the defendant did not 

match the profile of a pedophile.

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 
17

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 

pornography on the computer while she and A.E. were asleep 

upstairs, A.E.'s mother confronted the defendant, who admitted 

that he had been viewing pornography. On May 8, 2012, the 

defendant activated the CCleaner program at 1:00 P.M., and then 

again at 5:00 P.M., deleting more than 2,000 files from the 

computer.

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 

 

8 Referring to examples drawn from a report entered in 

evidence, Papargiris testified that he found files titled:

"Step-dad fucks stepdaughter part 1," "Step-dad fucks 

stepdaughter part 2," "Russian anorexic teen girl fucked by 

father-in-law," "Father fucks tiny teen stepdaughter," "Little 

cutie Kasey gets her first anal," "Father fucks tiny 
18

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 

the files that had been selected for viewing were clearly 

relevant and probative to establish the defendant's interest in

 

stepdaughter," "Stepfather fucks his young blonde teen," "Min 

dad fucked young teen daughter on table," "Father and daughter 

taboo sex," "Daughter Ashlyn . . . Rae seduces mature mom and 

old daddy into family taboo sex," "Hot tiny Spanish spinner babe 

Lily gets an anal creampie," "German amateur Nikita total anal," 

"Innocent teen girl takes a huge dick up her tiny asshole," 

"Brunette teens get an anal pounding for the first time," "A

cute girl gets anal fucked for the first time," "First anal for 

Anime girl," "Young girl blonde first anal," "Tiny daughter 

anal," "Skinny young teen does anal," and "Hot young emo teen 

gets ass stretched her first anal fuck."
19

committing the crimes charged.9 See Commonwealth v. Wallace, 70 

Mass. App. Ct. 757, 764 (2007) ("Evidence of a defendant's 

predisposition to commit the crime charged has long been held to 

be relevant"). Contrast Commonwealth v. Christie, 89 Mass. App. 

Ct. 665, 671-673 (2016) (evidence that defendant, an adult male 

homosexual, had interest in viewing depictions of adult males 

engaged in generic acts of same-sex intercourse, standing alone, 

irrelevant to whether defendant has interest in sexual conduct 

with underage boys). To counter the defense theory that someone 

other than the defendant had sexually abused A.E., the 

Commonwealth properly adduced evidence demonstrating his

interest in sex between a stepfather and his stepdaughter, 

thereby tending to prove that the defendant, who could be seen 

as A.E.'s stepfather, was the perpetrator of the alleged abuse. 

The evidence also served to corroborate A.E.'s testimony. Many 

of the titles of the pornographic files and the description of 

the video content evince a connection to A.E.'s allegations of 

anal intercourse, and the title, "Min dad fucked young teen 

daughter on table," explicitly parallels A.E.'s account of the 

defendant "massaging" her "bum" while she lay on a living room 

table. Furthermore, with regard to the charge of disseminating 

pornography to a minor, the challenged evidence substantiated

 

9 This is so even if the material did not actually depict 

children.
20

A.E.'s account of watching a video recording of a man 

"massaging" a woman with his penis.

"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 

Mass. G. Evid § 403 (2016). The defendant argues on appeal that 

the probative value of the pornographic titles and Internet 

searches was outweighed by the risk of undue prejudice and, 

specifically, he contends that the evidence was excessive in 

quantity and inflammatory in nature. Although the twenty titles 

selected by the Commonwealth from the inventory of pornographic 

computer files arguably amounted to a substantial quantity of 

highly charged evidence, in the circumstances of this case, the 

admission did not constitute an abuse of discretion giving rise 

to a substantial risk of miscarriage of justice.

The very quantity of files in the computer inventory had

evidentiary value, because it manifested the defendant's 

sustained and purposeful interest in the themes of sex, and 

particularly anal sex, with young girls, and sex between 

stepfathers and stepdaughters, and contradicted the defense 

theory that the defendant had no pedophilic interest. See 

Commonwealth v. Carey, 463 Mass. at 392 n.18 (quantity of 

potentially inflammatory evidence demonstrated depth of 

defendant's interest in, and inquiry into, asphyxiation). The 
21

substantial quantity of pornography in the inventory also made

it more probable that the files were amassed by someone with

continuous access to the computer, as opposed to one of the 

occasional visitors to the home, as the defendant proposed. 

Furthermore, the inflammatory potential of the pornographic 

material was diminished by the fact that only an inventory of

the titles, and not the images, was submitted to the jury. 

Contrast Commonwealth v. Petrillo, 50 Mass. App. Ct. at 106-110

(harmless error to show sixteen minutes of hard-core 

pornographic videotape to jury); Commonwealth v. Juandoo, 64 

Mass. App. Ct. 56, 61 (2005) (reversible error to admit "a 

substantial quantity of pornography," including pornographic 

videotapes, seventy-seven pornographic images, and three 

pornographic magazines, all of which were provided to jury

during deliberations).

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, nor 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 
22

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.