MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Omar Enriquez, appeals after a Superior Court jury trial from convictions of three counts of aggravated rape of a child, G. L. c. 265, § 23A (b).
2
Concluding that the judge acted within his discretion in admitting the “Set in Stone” document (document) in evidence, we affirm.
1. Background. In the fall of 2012, the defendant moved into an apartment with his girlfriend (the victims mother) and her two daughters, one of whom was the victim. At the time, the victim was in middle school. In April 2014, upon returning home from a trip to New York City over Patriots Day weekend, the defendant drove the victim to her fathers house, where she intended to spend the night.
3
Upon arriving at the fathers house, the defendant kissed the victim on the lips.
4
The victim was thirteen years old at the time.
In April 2015, after the defendant and the victim finished playing video games, the defendant unexpectedly began kissing the victim. The victim was fourteen years old at the time. Without saying anything, the defendant removed the victims shorts and underwear and vaginally penetrated her with his penis.
5
In September 2015, the victims mother, the victim, her younger sister, and the defendant moved into a different apartment. The victim was fifteen years old and a sophomore in high school. The defendant began committing statutory rape of the victim, including penile, digital, and oral penetration, “multiple times a week.” Also during this time, the defendant began smoking marijuana with the victim and providing marijuana to her, by hiding it around the apartment for her to find.
A few days before the defendants arrest in October 2016, the victim, who was sixteen at the time, asked the defendant to send her a set of rules because she wanted “someone to ․ pay attention to [her] and, ․ take care of [her].” In response, the defendant sent the document, entitled “Set in Stone,” in electronic form to the victim, and she received it on her iPad while in class.
6
The document, in part, stated, “Baby girl is ALLOWED; with permission, to see whomever she wishes as long as she observes safe sex practices. I request[ ] no other Doms can be called DADDY without my permission.” The document specified that “baby girl” should “start & maintain a healthy eating program” and also stated that, “Daddy will bring random treats for baby girl.”
7
After the victims mother discovered that the defendant had sent the document to the victim, she called the police. Shortly after police arrived at the apartment, the defendant e-mailed the document to an officer and voluntarily agreed to an interview at the police station. At the interview, the defendant denied anything more than just flirting with the victim. The defendant, who understood that the document “was a set of rules for a daddy-daughter domination relationship,” did not deny sending it to the victim, but claimed that the document was intended for his relationship with the victims mother.
8
In April 2019, a jury found the defendant guilty of three counts of aggravated rape of a child. This appeal followed.
2. Admission of the document. To be admitted, “evidence must be both relevant and probative.” Commonwealth v. Martinez, 476 Mass. 186, 191 (2017). See Commonwealth v. Vera, 88 Mass. App. Ct. 313, 320 (2015), quoting Commonwealth v. Keo, 467 Mass. 25, 32 (2014) (“Evidence is relevant if it has a ‘rational tendency to prove an issue in the case,’ ․ or render ‘a desired inference more probable than it would be without the [evidence]’ ”). Given that “all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided.” Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989).
“Relevant evidence is admissible as long as the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Commonwealth v. Wall, 469 Mass. 652, 661 (2014). Accord Mass. G. Evid. § 403 (2019) (“court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice”). For evidence of prior or subsequent bad acts, the standard is somewhat more restrictive of what evidence may be admitted, and such evidence “will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).
9
Questions of the admissibility of evidence are “entrusted to the trial judges broad discretion and are not disturbed absent palpable error.” Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). Accord Childs, supra. “We will conclude that there has been an abuse of discretion only if the judge has ‘made “a clear error of judgment in weighing” the factors relevant to the decision, ․ such that the decision falls outside the range of reasonable alternatives.’ ” Commonwealth v. Hammond, 477 Mass. 499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See Commonwealth v. Thomas, 476 Mass. 451, 465 (2017) (“judges evidentiary decision is reviewed under an abuse of discretion standard”).
Here, contrary to the defendants assertion, the judge acted within his discretion in admitting the document in evidence.
10
At trial, the victim testified to an ongoing “sexual” relationship with the defendant that began before her sixteenth birthday and continued afterwards until his arrest in October 2016.
11
She testified to the nature of the relationship with the defendant and how it escalated in the fall of 2015, when she was fifteen years old, to having “sex” “multiple times a week” with the defendant. Although the victim testified that the document “was more for mine and my current boyfriend at the time,” the document was highly probative because it tended to prove the existence of an ongoing sexual relationship between the victim and the defendant. See Commonwealth v. Facella, 478 Mass. 393, 401 (2017) (letters defendant wrote to victim while in prison were probative because they “show[ed] the nature of the entire relationship”); Commonwealth v. Raposa, 440 Mass. 684, 691-692 (2004) (letter was probative because “it demonstrated the physical, sexual nature of the relationship between the defendant and [her lover] ․ [and] [a]lthough the letters language was vulgar, it was not likely to have cast the defendant in such an unfavorable light with the jury as to be unfairly prejudicial”); Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 735-736 (2014) (admissible Facebook messages containing “explicit sexual exchanges” between juvenile and victim corroborated victims testimony as to date of sexual encounter with juvenile). Cf. Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 108 (2000) (“Even if showing the [pornographic] tapes corroborated some of the details of [the victims] testimony ․ their relevance was marginal”). By corroborating the victims testimony as to an ongoing sexual relationship with the defendant, the document rebutted the defendants assertion that he had sex with the victim only “[j]ust that once.” See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 758 (2016) (“lurid nature of the [Facebook chat] conversations undoubtedly caused prejudice to the defendant, [but] the prejudice flowed directly from their properly probative effect to illustrate the development of the relationship between the defendant and the victim, [and] its increasingly sexually charged character․ The prejudice, in other words, was not unfair”).
Furthermore, the document corroborated the victims testimony as to other aspects of the relationship. Contrast Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 63 (2005) (introduction of large quantities of sexual materials prejudicial error where “there is no indication on the record that much of the material ․ bore any probative weight toward corroborating the complainants testimony”). At trial, the victim testified that when she was a sophomore in high school the defendant began hiding “nug[s]” of marijuana around the apartment, telling the victim, “I left weed for you somewhere.” Consistent with this practice, the document states that “Daddy will bring random treats for baby girl.” The victim testified that, after smoking marijuana with the defendant, they would typically “hang out and have sex.”
“This [was] not one of ‘those rare instances in which the probative value of the evidence [was] overwhelmed by its inflammatory potential.’ ” Raposa, 440 Mass. at 692, quoting Commonwealth v. Repoza, 382 Mass. 119, 128 (1980). Accordingly, we discern no abuse of discretion in the judges decision to admit the document in evidence.
Judgments affirmed.
FOOTNOTES
2
. At a prior jury trial, the defendant was convicted of disseminating harmful material to a minor, G. L. c. 272, § 28. The defendant voluntarily dismissed his appeal of that conviction.
3
. The victims mother was not in the car.
4
. The victim testified that she was not sure what to do when the defendant asked if he could kiss her and that she either “nodded or said yes.” The defendant denied kissing the victim that night.
5
. The victim did not tell anyone about the incident at the time because she “didnt really know who to talk to about that or how to talk about that.” The defendant and the victim never discussed the incident.
6
. Once the victim realized that the document was of a “sexual nature,” she immediately closed her iPad.
7
. The victim understood herself to be the “baby girl” referenced throughout the document.
8
. The defendant asserted that the document was for victims mother because she “is the one that enjoys Daddy/little-girl play.”
9
. We pass over the defendants claim that the document constitutes evidence of a prior or subsequent bad act without deciding the issue and we analyze it as such arguendo.
10
. The judge excluded pornographic videos from evidence because the probative value was outweighed by the unfair prejudice. See Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 61 (2005) (trial judge abused discretion in “admitting a substantial quantity of pornography in evidence”).
11
. The defendant denied having sexual relations with the victim before she turned sixteen and testified that he had sex with her only once, after she turned sixteen, the night of the victims homecoming dance in mid-October 2016.