Commonwealth v. Foreman

Decision Date20 July 2022
Docket Number20-P-1343.
Citation101 Mass.App.Ct. 398,192 N.E.3d 1113
CourtAppeals Court of Massachusetts

Alan D. Campbell, Brookline, for the defendant.

Konstantin Tretyakov, Assistant District Attorney, for the Commonwealth.

Present: Neyman, Ditkoff, & Hand, JJ.


The defendant, Wayne Foreman, appeals from his convictions, after a Superior Court jury trial, of four counts of rape of a child with force, G. L. c. 265, § 22A ; four counts of rape of a child aggravated by a ten-year age difference, G. L. c. 265, § 23A ; one count of rape, G. L. c. 265, § 22 (b ) ; three counts of indecent assault and battery on a child, G. L. c. 265, § 13B ;1 two counts of indecent assault and battery, G. L. c. 265, § 13H ;2 and one count of dissemination of matter harmful to minors, G. L. c. 272, § 28, all arising from acts of repeated abuse of his daughter and niece. We conclude that the judge acted within her discretion in admitting testimony regarding the defendant's use of corporal punishment as evidence of constructive force, in declining to give an instruction on when the use of corporal punishment is noncriminal, and in prohibiting defense counsel from suggesting without a basis in the evidence that the use of corporal punishment derived from the defendant's wife's religious beliefs. Further concluding that the charges relating to the daughter and the niece were properly joined for trial and that convictions for forcible rape of a child and aggravated rape of a child are not duplicative, we affirm all of the convictions except for the count for dissemination of matter harmful to minors. Because a parent in a parental relationship is exempt from the criminal prohibition against disseminating matter harmful to minors to the parent's own children, we reverse the dissemination conviction.

1. Background. a. The daughter. The defendant sexually abused his daughter one to two times per week from when the daughter was five years old to when the daughter was sixteen years old.

The defendant first abused his daughter when she was five years old. The defendant put her on his desk, removed her underwear, and digitally raped her. He was playing a pornographic video on his computer at the time. The defendant told his daughter not to tell anyone about this incident.

When his daughter was six or seven years old, the defendant began forcing the daughter to perform fellatio on him and to touch his penis. When the daughter was eight or nine years old, the defendant began putting his mouth on her vulva, rubbing his penis against her vulva and legs, and touching her buttocks. He also digitally raped her. The defendant frequently played pornographic videos during the abuse.

b. The niece. The defendant's niece began living in the defendant's house when she was thirteen years old. When the niece was fifteen years old, the defendant brought her into his bedroom to "talk." As the niece was lying on the defendant's bed, the defendant began touching the ring on her finger. When she expressed discomfort, the defendant told her that "he didn't do anything wrong because" "everyone has different boundaries" and "[her] boundaries are different from his."

When the niece was sixteen years old, the defendant brought her into his bedroom and told her to remove her shirt so that he could inspect a rash on her body. After the niece removed her shirt, the defendant put lotion on her chest and touched her breasts.

A few months later, the defendant again brought the niece into his bedroom. The defendant told the niece to remove her shirt so that he could inspect what he claimed were hickeys. She removed her shirt, putting it back on shortly afterwards when the defendant's wife entered the room. On one occasion while the niece was living in the defendant's home, the defendant showed her pornographic photographs on his cell phone.

c. Disclosure of crimes. These crimes came to light once the daughter entered college and disclosed the abuse to her boyfriend. The Commonwealth brought charges for four different kinds of penetration (penis in genital opening, digital, tongue in genital opening, and penis in mouth), both for forcible child rape and for aggravated child rape. The Commonwealth also brought one charge for rape for the defendant's actions after the daughter turned sixteen years old. The Commonwealth similarly brought charges for indecent assault and battery on a child based on four different kinds of actions (hand on buttocks, penis on thighs, hand on penis, hand on genital area), and three charges for indecent assault and battery once the daughter turned fourteen years old (hand on buttocks, hand on penis, hand on genital area). A charge for dissemination of material harmful to a minor was based on exposing the daughter to pornography, and one count of indecent assault and battery charged the touching of the niece's breasts. A required finding of not guilty entered on one count of indecent assault and battery (hand on genital area). After a jury trial, the defendant was acquitted of one count of indecent assault and battery on a child and one count of indecent assault and battery (both hand on buttocks), and convicted of the remaining charges. This appeal followed.

2. Prior bad acts. "Evidence of prior bad acts is generally inadmissible to show a defendant's propensity to commit a

crime." Commonwealth v. Don, 483 Mass. 697, 713, 136 N.E.3d 680 (2019). Nonetheless, "[s]uch evidence may be admitted ‘to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.’ " Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780, 68 N.E.3d 644 (2016), quoting Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686, 797 N.E.2d 470 (2003). "[E]ven if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Bryant, 482 Mass. 731, 734-735, 128 N.E.3d 40 (2019). "These matters are ‘entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.’ "

Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71, 110 N.E.3d 477 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242, 84 N.E.3d 820 (2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 1038, 200 L.Ed.2d 292 (2018).

Here, the Commonwealth offered evidence that, during the time that the defendant was abusing the victims, the defendant punished the daughter and her three siblings up to ten times per week when he felt that they were disrespectful, disobedient, or underperforming in school. Punishment included spanking, striking with a belt, and forcing the children to sleep on the floor, stand on their toes, or hold a heavy book up without allowing it to drop. Sometimes, the defendant would require a child to sit in a chair during any free time for anywhere from a week to three months. This evidence was admitted to show that the victims dared not disobey the defendant, thus establishing constructive force for the sexual assaults.3

The judge acted within her discretion in admitting this evidence. The challenged "evidence was relevant to show ... a full picture of the entire relationship with the victim, which in turn was relevant to proving the element of force." Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 526-527, 954 N.E.2d 67 (2011) (evidence of earlier criminal offense involving same victim was properly admitted as prior bad act evidence). See Commonwealth v. Moniz, 87 Mass. App. Ct. 532, 535, 32 N.E.3d 355 (2015), quoting Newcomb, supra at 521, 954 N.E.2d 67 ("Constructive force may be shown by ‘proof that the victim was afraid or that she submitted to the defendant because his conduct intimidated her’ "). Without evidence of the corporal punishment that the defendant routinely inflicted, the daughter's testimony that she "[c]ompletely obey[ed]" what the defendant told her to do "would make little sense." Childs, 94 Mass. App. Ct. at 72, 110 N.E.3d 477. "Once the jury had knowledge that the victim alleged this was part of an ongoing, continuous abusive relationship" involving frequent and often severe4 punishment, "the victim's actions and reactions make logical sense." Id. The judge, therefore, properly found that testimony about the defendant's prior acts showed "the historical and contextual relationship between the victim and the defendant," and was probative of constructive force. Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255, 897 N.E.2d 105 (2008).

We also discern no abuse of discretion in the judge's finding that the probative value of the evidence outweighed any unfair prejudice. See Commonwealth v. Moore, 480 Mass. 799, 809 n.9, 109 N.E.3d 484 (2018). "Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ " Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188, 993 N.E.2d 1222 (2013), quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).

Here, "the judge mitigated the prejudicial effect through [a specific] limiting instruction[ ]," Commonwealth v. Peno, 485 Mass. 378, 386, 150 N.E.3d 314 (2020), given during the daughter's testimony. In addition, "[t]he trial judge reiterated the limiting instruction in [her] final charge to the jury and emphasized that the jury could not consider the evidence for the purpose of showing propensity." Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 58, 35 N.E.3d 771 (2015). "We presume that the jury followed the judge's instructions." Commonwealth v. Henley, 488 Mass. 95, 125, 171 N.E.3d 1085 (2021). Furthermore, evidence of the corporal punishment that the defendant inflicted was not so like the sexual abuse "that the jury would have inferred from this evidence a propensity to commit [the crimes charged]," all of which involved the performance of a sexual act or the depiction of...

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