MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Silvio DePina, of two counts of indecent assault and battery, in violation of G. L. c. 265, § 13H; three counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A; one count of witness intimidation, in violation of G. L. c. 268, § 13B; and three counts of threatening to commit a crime, in violation of G. L. c. 275, § 2. The defendant appeals, arguing that the judge erred by providing the jury with an index of charges, by admitting evidence of contemporaneous uncharged conduct, and by denying the defendants motion for a required finding of not guilty on one of the charges of threatening to commit a crime (count thirteen). We affirm.
Background. The defendant is a former staff member at two Department of Youth Services (DYS) facilities, Casa Isla and the Metro Revocation Unit. The Commonwealth brought charges against DePina and other staff members for alleged assaults on residents of both DYS facilities. In these assaults, dubbed “orange chicken(s),” staff held residents down, removed their pants and undergarments, and struck them on the bare buttocks with a facility-issued orange sandal or other implement. Other residents were often compelled to join in the assaults.
Discussion. 1. The index of crimes charged. The case involved six defendants and five victims. Each defendant was charged with between one and sixteen crimes, totaling forty-one charges. DePina faced at least one charge relating to each victim. At trial, the judge provided to each member of the jury a two-page index listing each defendants name, the related case number, the charges against that defendant (and the weapon used, if applicable), the defendants attorneys, and the victim to whom each charge pertained. The judge explained to counsel at a pretrial hearing that the purpose of this index was “to help [the jury] to follow the evidence and connect it with allegations.” DePinas counsel objected to the use of the index along with his codefendants counsels, after which the judge stated that he would give limiting instructions. The judge repeatedly instructed the jury to “treat each defendant separately in determining whether, as to that individual defendant, the Commonwealth has proved its case beyond a reasonable doubt,” and that the index “was not evidence” and could not be “used as a checklist in any way.”
“Summary charts of voluminous evidence are permissible if they are accurate and fair” and “do not function as pedagogical devices that unfairly emphasize part of the proponents proof.” Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 538 (2002), quoting Welch v. Keene Corp., 31 Mass. App. Ct. 157, 165-166 (1991). A trial judge “has ‘considerable ․ discretion as to the degree to which chalks can be used.’ ” Mimless, supra at 539, quoting Commonwealth v. DiFonzo, 31 Mass. App. Ct. 921, 923 (1991). Here, the index consisted of nothing more than what was contained in the indictments, which were read to the jury at the outset of the trial, and the names of counsel already known to the jurors from introductions at the trial. The defendant acknowledges that the information contained in the index is correct. The index contained no more information than the jurors would glean from carefully watching and listening to the trial. It was reasonable under the circumstances for the judge to offer the jury a two-page neutral summary of information to avoid confusion.
While the defendant also argues that the index invited the jurors to take a “checklist” approach, he does not articulate how the index invited that danger, particularly where it did not list the elements of the charged crimes, contain extraneous information, or reflect the Commonwealths theory of the case. Compare Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275-276 (2016) (PowerPoint presentation erroneously admitted because it was “a hybrid document, combining aspects of summary compilation and attorney argument”). The judge explicitly instructed the jurors about the limited, nonevidentiary purpose of the index -- both when they received the index and during final instructions -- and reminded the jury to consider each defendant separately. We presume that the jury follows all limiting instructions; therefore, we presume here that the jury considered the index only as a guide to the voluminous evidence. See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005); see also Welch, 31 Mass. App. Ct. at 166 (no error where “[t]he judge carefully instructed the jury that the visual aids were not evidence”). We also note that the verdicts -- which resulted in acquittals on various charges against each of the defendants -- belie the defendants arguments. The judge did not abuse his considerable discretion in providing the index to the jury.
2. Evidence of contemporaneous uncharged conduct. The defendant next argues that the judge improperly allowed evidence of contemporaneous uncharged conduct as evidence of bad character or propensity to commit crimes. Evidence is not admissible for such purposes but “may be admissible if relevant for some other purpose,” including “a common scheme[ ] [or] pattern of operation.” Commonwealth v. Bryant, 482 Mass. 731, 734 (2019), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b) (2021). Even if relevant for a permissible purpose, the evidence “will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Bryant, supra at 734. We review for clear error, absent which, we defer to the “sound discretion of the judge.” Id. at 735. The evidence of uncharged conduct here was relevant to the pattern or type of assaults. The uncharged conduct also was, in many cases, intertwined with the charged conduct, as evidenced by multiple victims testimony that they participated in orange chickens to avoid being subjected to such assaults. The evidence was also relevant to the victims initial reluctance to disclose the assaults, as the orange chickens were used to prevent residents from reporting the abuse to other staff.
The judge also repeatedly instructed the jury as to the limited purpose for which they could consider the evidence of uncharged acts. The judge gave limiting instructions during multiple witnesses testimony and, in his charge to the jury before they retired to deliberate, the judge instructed the jurors that they “should not speculate about the outcome of [other] defendants or other charges” and that the “evidence of other acts of conduct is admitted for a limited purpose, to show perhaps a common scheme or a pattern of conduct or mode of discipline within the program, but not as any evidence of bad character ․ [ ]or as evidence showing any propensity to commit the crime charged.” The judge also repeatedly instructed the jury to consider evidence presented against each defendant only against that defendant. Such limiting instructions minimize any prejudicial effect of the evidence and, as above, we presume the jury to have followed the judges instructions. Bryant, 482 Mass. at 737. We therefore discern no error.
2
3. The defendants motion for a required finding of not guilty. During trial, DePina filed a written motion for a required finding of not guilty on all charges he faced, including count thirteen, threatening to commit a crime against A.B.2.
3
DePina argues on appeal that there was not sufficient evidence to support a conviction on count thirteen and that therefore, the judge erred by denying his motion for a required finding of not guilty.
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“We review to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Commonwealth v. Tavares, 484 Mass. 650, 655 (2020). “The evidence may be direct or circumstantial, and we draw all reasonable inferences in favor of the Commonwealth.” Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).
“The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat” (citation omitted). Commonwealth v. Hamilton, 459 Mass. 422, 426-427 (2011). The threat must “be made to (or be intended to reach) the person who is the intended target of the threatened crime, so as to cause fear or apprehension in that person.” Commonwealth v. Kerns, 449 Mass. 641, 653 (2007). DePina contests only this element of the crime. However, A.B.2 testified that after an orange chicken, the defendant told him “not to tell” anyone about the assault and said that he “knows where [A.B.2] live[s]” and has A.B.2s address. DePina also told A.B.2 that he had “a team” of residents who would “carry out objectives for him ․ beat up a kid he didnt like or ․ you know, stuff like that.” We therefore conclude that there was sufficient evidence that DePina communicated threats directly to A.B.2.
Judgments affirmed.
FOOTNOTES
2
. Given our disposition of the first two claimed errors, the defendants argument that the combination of the two errors was unduly prejudicial is unavailing.
3
. Pursuant to G. L. c. 265, § 24C, we refer to the victim by initials only. As two of the victims shared initials, the trial court designated the victim in count thirteen as A.B.2. For consistency, we use the same designation.
4
. DePina does not appeal the denial of this motion on any of the other counts.