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24-P-448 Appeals Court
COMMONWEALTH vs. ISRAEL ROSA FIGUEROA.
No. 24-P-448.
Bristol. September 4, 2025. – July 7, 2026.
Present: Sacks, Smyth, & Wood, JJ.
Rape. Indecent Assault and Battery. Minor. Evidence, Prior
misconduct. Practice, Criminal, Instructions to jury.
Indictments found and returned in the Superior Court Department on July 26, 2018.
The cases were tried before Brian S. Glenny, J.
Matthew J. Koes for the defendant.
Jennifer L. Thompson, Assistant District Attorney, for the Commonwealth.
SMYTH, J. Following a Superior Court jury trial on
thirteen indictments charging the defendant with sexually
abusing two minor children in his family (victim one and victim
two), the defendant was convicted of six counts of aggravated
rape, two counts of rape, and four counts of indecent assault
and battery with respect to victim one, and one count of
2
indecent assault and battery with respect to victim two. At
trial, the Commonwealth presented prior bad act evidence through
the two named victims and two prior bad act witnesses (JG and
KG),1 who were also related to the defendant. These four
witnesses testified that the defendant abused the female
children in his family on a near continuous basis from 2000
through 2018. On appeal, the defendant claims the convictions
should be reversed because the judge abused his discretion by
allowing the prior bad act witnesses' testimony to overwhelm the
jury resulting in unfair prejudice to the defendant.
It has been long recognized that prior bad act evidence is
"inherently prejudicial" (citation omitted). Commonwealth v.
Crayton, 470 Mass. 228, 249 n.27 (2014). When prior bad act
evidence, even when offered to show a common plan or some other
legitimate purpose, is unduly emphasized and excessive in
proportion to the evidence of the charged conduct, there is a
risk that such evidence could unfairly prejudice the defendant
by overwhelming the case and diverting the jury's attention from
the charged offenses. See Commonwealth v. Dwyer, 448 Mass. 122,
128-129 (2006); Commonwealth v. Mills, 47 Mass. App. Ct. 500,
505 (1999) ("It has long been recognized that bad acts . . .
1 In accordance with G. L. c. 265, § 24C, we use pseudonyms for all four witnesses.
3
become dangerously confusing to the triers when piled on and
unduly exaggerated"). This case illustrates that danger, as we
conclude that the admission of extensive prior bad act evidence
unfairly prejudiced the defendant and warrants a new trial.
Background. 1. Commonwealth's motion to introduce prior
bad acts. The Commonwealth obtained two separate sets of
indictments against the defendant in 2018 and 2019,
respectively. Victim one and victim two were the named victims
in the 2018 set of indictments, which resulted in the
convictions before us. JG and KG were the named victims in the
2019 set of indictments. All the indictments were consolidated
in 2019. However, on November 28, 2022, the trial judge allowed
the defendant's motion to sever the 2019 set of indictments.
When ordering the 2019 indictments severed, the judge advised
the prosecutor that the Commonwealth could move for the
admission of the acts supporting the severed 2019 indictments as
prior bad act evidence in the trial on the 2018 indictments.
The Commonwealth then filed a motion "to allow [JG and KG] to
testify to the prior/subsequent sexual abuse perpetrated upon
them by the defendant." The judge allowed the Commonwealth's
motion over the defendant's objection.2
2 Our references in this opinion to evidence of "prior bad acts" or "uncharged" conduct encompasses (1) uncharged conduct toward victims one and two (i.e., conduct not alleged in the 2018 set of indictments); and (2) both uncharged and charged
4
2. The trial. We summarize the four witnesses' testimony
as follows.
a. Named victims' testimony. Victim one lived in the same
duplex with the defendant beginning at an early age. The
defendant abused victim one from the time she was about nine
years old until she moved when she was fifteen years old.
Specific to the charged offenses,3 victim one testified that the
defendant (1) touched or penetrated her vagina with his fingers,
(2) forced her to suck his penis, (3) penetrated her anus with
his penis, and (4) placed his tongue on or in her vagina.
The prosecutor also elicited substantial testimony of
uncharged conduct from victim one. More specifically, victim
one testified that the defendant on multiple occasions placed
his penis between her breasts, sometimes ejaculating. The
defendant also took photographs of her breasts, vagina, and
anus.4 According to victim one, the defendant sexually abused
her "almost every day."
conduct toward JG and KG (including conduct alleged in the 2019 set of indictments), none of which constituted charged conduct for purposes of this trial.
3 Victim one was the named victim in twelve indictments charging the defendant with eight counts of aggravated rape of a child and four counts of indecent assault and battery of a child.
4 The prosecutor also elicited considerable other bad act testimony concerning the defendant's penile-vaginal penetrations of victim one. We do not consider this testimony in our
5
Victim two testified that she would occasionally go to the
defendant's house after school. When victim two was about six
years old, the defendant touched her vagina over her leggings
while she was sitting on his lap. This conduct was the subject
of a single indictment charging indecent assault and battery of
a child.
Victim two also testified to uncharged conduct, namely that
the defendant abused her by "hump[ing]" her "butt and like [her]
vagina" on multiple occasions. The defendant was "usually
wearing shorts but shirtless" when he "humped" victim two, and
she could feel his penis on her body. She described "humping"
as the defendant "like pushing his body and my body back and
forth, like on him."
b. Prior bad act witnesses' testimony. JG testified that
the defendant began sexually abusing her when she was eight
years old and that the abuse continued every day until she was
determination of prejudice because it is not clear from the record -- in part because the numerous exchanges between the parties and the judge were deemed inaudible in the transcript --whether the defendant preserved his objection to these uncharged acts. Neither party moved to reconstruct the record pursuant to Mass. R. A. P. 8 (e), as appearing in 481 Mass. 1611 (2019). In addition, the judge's transcribed rulings at sidebar, along with the parties' ensuing trial tactics, are difficult to reconcile with the judge's contemporaneous limiting instructions concerning the penile-vaginal penetrations of victim one. We note that the defendant on appeal does not press a claim of prejudice arising directly from this particular testimony.
6
sixteen years old. The defendant first abused her by putting
his penis outside her vagina and ejaculating. The defendant's
subsequent abuse included penetrating JG's vagina and mouth with
his penis. When JG was twelve or thirteen years old, the
defendant told her that he wanted to impregnate her, and that
they would move together to Puerto Rico. The defendant also
took photographs of JG after instructing her to pose naked.
KG testified that the defendant sexually abused her when
she was between four and seven years old.5 The defendant made KG
take his penis in her mouth, and he put his penis on the outside
of her vagina. KG estimated that the defendant sexually abused
her "every day in the morning and after school." The defendant
also took photographs of her "private parts."
Discussion. The defendant contends that the judge abused
his discretion by allowing all four witnesses' prior bad act
testimony to divert the jury's attention from and overwhelm the
evidence of abuse for which the defendant was charged. We
agree.
1. Prior bad act evidence. "It is well settled that the
prosecution may not introduce evidence that a defendant
previously has misbehaved, indictably or not, for the purposes
5 The indictments pertaining to KG allege the defendant sexually abused her between 2016 and 2018.
7
of showing his bad character or propensity to commit the crime
charged." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
Prior bad act evidence may be admitted, however, where it is
relevant for a nonpropensity purpose, such as to show "a common
scheme, pattern of operation, absence of accident or mistake,
identity, intent, or motive." Id. Where a defendant is charged
with sexual assault, some evidence of similar forms of uncharged
abuse toward other victims may be admissible to demonstrate a
common course of conduct or to corroborate the named victim's
testimony only if such conduct is connected "in time, place, or
other relevant circumstances to the particular sex offense[s]
for which the defendant is being tried." Commonwealth v. King,
387 Mass. 464, 470 (1982).
However, the admission of prior bad act evidence implicitly
"carries with it a high risk of prejudice to the defendant."
Commonwealth v. Barrett, 418 Mass. 788, 795 (1994). The
potential prejudice is of several types:
"Such evidence . . . confuses [the defendant] in his
defen[s]e, raises a variety of issues, and thus diverts the
attention of the jury from the [crime] immediately before
it; and, by showing the defendant to have been a knave on
other occasions, creates a prejudice which may cause
injustice to be done him."
Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting
Commonwealth v. Jackson, 132 Mass. 16, 20-21 (1882).
Accordingly, evidence of prior or subsequent bad acts is
8
inadmissible if its probative value is outweighed, "even if not
substantially outweighed," by the risk of unfair prejudice to
the defendant. Crayton, 470 Mass. at 249 n.27. See Mass.
G. Evid. § 404(b)(2) (2025).
Once prior bad act evidence is deemed admissible, the trial
judge must be prepared to intervene during the trial to ensure
that such evidence does not overwhelm the evidence of the
charged conduct. See Dwyer, 448 Mass. at 129; Commonwealth v.
Roche, 44 Mass. App. Ct. 372, 380 (1998). We review a judge's
decision whether the probative value of prior bad act evidence
is outweighed by the potential for unfair prejudice for abuse of
discretion. See Commonwealth v. Peno, 485 Mass. 378, 386
(2020).
Evidence of the defendant's sexual abuse of a child not
named in the indictment may be admitted to show a common pattern
with the indicted sexual offense, where the uncharged conduct
shares a "temporal and schematic nexus" with the indicted
offense. Barrett, 418 Mass. at 794, quoting King, 387 Mass. at
470. The probative value of such evidence depends not only on
how similar the charged and uncharged offenses are to each
other, but also on how distinctive or unusual they are. See,
e.g., King, 387 Mass. at 472 (prior bad act evidence was
"logically probative" because distinctive form of uncharged
sexual abuse, involving oral sex and use of dog, was closely
9
related to, and occurred around same time and at same place as,
abuse charged in indictment).
However, even where the uncharged conduct evidence is
highly probative, its lack of proportionality to the evidence of
the crimes charged may render it unfairly prejudicial. In King,
387 Mass. at 472-473, the Supreme Judicial Court recognized the
importance of proportionality in affirming the trial judge's
admission of uncharged conduct evidence, where such evidence was
limited to a witness's response to only two questions from the
prosecutor and there was "extensive evidence" concerning the
charged conduct (i.e., "the defendant's unnatural sexual acts
with the victim"). Further minimizing the potential for unfair
prejudice, the prosecutor did not reference the uncharged
conduct evidence in the Commonwealth's closing argument. Id. at
469. These factors allowed the Supreme Judicial Court to
conclude that the "trial was focused throughout on the specific
crimes charged," rather than overwhelmed by evidence of
uncharged offenses. Id. at 473.
The Supreme Judicial Court's subsequent decision in Dwyer,
448 Mass. at 124, 127-130, is instructive in our determination
whether prior bad act testimony overwhelmed the case here. In
Dwyer, supra at 128, the defendant was charged with two
incidents of sexual abuse, yet the judge allowed the victim to
testify in detail about seven different incidents of uncharged
10
sexual abuse. Of the sixty-five transcript pages of the
victim's direct examination, only fifteen pages covered the
charged conduct, whereas twenty-one pages pertained to the
uncharged sexual assaults. See id. When the prosecutor asked
the victim to estimate the number of times the defendant had
sexually abused her, the victim responded, "Uncountable." Id.
The Supreme Judicial Court concluded that the judge abused her
discretion by failing to intervene during the trial to prevent
this volume and detail of prior bad acts from overwhelming the
case and diverting the jury's attention from the charged
offenses. See id. at 128-129. This error caused the defendant
overwhelming prejudice requiring reversal. See id. at 129.
Here, as in Dwyer, 448 Mass. at 127-130, the volume of
uncharged bad act evidence introduced by the Commonwealth
substantially exceeded the testimony concerning the charged
incidents. The bad act testimony from the two prior bad act
witnesses and the two named victims totaled forty-two transcript
pages (with twenty-nine pages pertaining solely to the objectedto testimony of the two prior bad act witnesses). By
comparison, the two named victims' cumulative testimony
concerning the charged offenses amounted to only twenty-six
pages.
The potential for the prior bad act evidence to cause
unfair prejudice is exemplified by the prosecutor's unchecked
11
elicitation of JG's detailed testimony recounting the years of
daily abuse she endured from the defendant. For instance, JG's
account of how the defendant first abused her -- by rubbing his
penis against her vagina until he ejaculated -- covered four
transcript pages. Our precedent has long recognized that prior
bad act evidence should be limited and presented in summary
fashion to avoid the potentially unfair prejudicial effect of
such evidence. See Commonwealth v. Facella, 478 Mass. 393, 408
(2017), citing Roche, 44 Mass. App. Ct. at 380-381, and Dwyer,
448 Mass. at 130. See also King, 387 Mass. at 472.
However, where the charged conduct alleged is distinctive
or unique, the relevant probative value of similar prior bad act
evidence is high and, therefore, is less likely to be outweighed
by a risk of unfair prejudice. See Helfant, 398 Mass. at 227
(defendant doctor's uncharged acts of visiting patients at their
homes, drugging them with Valium, and then sexually molesting
them properly admitted to show "a distinctive pattern of
conduct" that was "remarkably similar" to charged offense);
Commonwealth v. Moran, 101 Mass. App. Ct. 745, 748 (2022) (prior
bad act evidence properly admitted because "form of the acts
[measuring body parts and using oil] bore striking similarity"
to conduct underlying charged offense); Commonwealth v. Hanlon,
44 Mass. App. Ct. 810, 816-817 (1998) (prior bad act evidence
properly admitted to show defendant priest's "unique and
12
insidious" scheme to isolate and rape altar boys and exploit
each victim's family's close ties to Catholic Church).
Here, while the prior bad act witnesses' testimony detailed
abuse that was similar to the named victims' accounts, and was
thus undisputably highly probative, it was the excessive,
disproportionate volume and detail of the evidence of uncharged
abuse that created the risk of unfair prejudice. The alleged
conduct was not so distinctive or unusual that its probative
value outweighed this risk of unfair prejudice to the defendant.
For example, the risk of the prior bad act evidence diverting
the jury's attention from the charged offenses is illustrated by
the amount of evidence introduced concerning a single prior bad
act in which the defendant allegedly shaved JG's pubic hair
before combining it with his own pubic hair in plastic bags.
While limited evidence of this act could have been properly
admitted to corroborate the named victims' accounts of the
defendant's abuse, the emphasis on this bad act was excessive
and disproportionate to the evidence concerning the charged
offenses.6 Contrast Commonwealth v. Cepulonis, 374 Mass. 487,
6 The prosecutor presented this evidence through (1) JG's testimony, (2) a detective who testified about the retrieval of the bags of hair from the defendant's property, and (3) the introduction of three photographs of the bags of hair. The prosecutor also referenced the defendant's retention of JG's pubic hair multiple times in her closing argument.
13
498 (1978) ("trial judge showed commendable energy in
controlling introduction" of other bad acts related to robbery
such that that evidence did not receive "undue attention or
emphasis"). This bizarre, fetishistic behavior attributed to
the defendant was limited to his abuse of a single prior bad act
witness and did not show a distinctive pattern of the
defendant's conduct. Contrast Commonwealth v. Walker, 442 Mass.
185, 202 (2004); Helfant, 398 Mass. at 227.
The Commonwealth's opening statement and closing argument
further exacerbated the potential unfair prejudice arising from
the volume and detail of the cumulative prior bad act testimony.
The Commonwealth's theme of its case, as announced in its
opening statement, was that the defendant "was molesting the
female children in this family." In her closing argument, the
prosecutor conveyed this theme by drawing the jury's attention
to specific uncharged bad acts before arguing that the jury
should find the defendant guilty because he "preyed upon the
children in this family." Considering the substantial bad act
evidence introduced at trial, the prosecutor's closing argument
increased the risk that the bad act evidence would divert the
jury's attention from the charged acts. See Dwyer, 448 Mass. at
129 (court, in determining prejudice, considered prosecutor's
closing argument that emphasized prior bad act evidence as years
of "an ongoing basis of sexual assault"). See also Peno, 485
14
Mass. at 398. Contrast Commonwealth v. Nascimento-Depina, 496
Mass. 1, 9, cert. denied sub nom. Nascimento-Depina v.
Massachusetts, 146 S. Ct. 260 (2025) (risk of prejudice "slight"
where prosecutor "referred to the [prior bad act] evidence only
briefly in closing"); Commonwealth v. McCowen, 458 Mass. 461,
479–480 (2010).
Although some testimony from the prior bad act witnesses
could have been properly admitted to corroborate the victims'
accounts and show a course of conduct, we conclude that the
judge replicated the error in Dwyer, 448 Mass. at 129, by
failing to prevent the volume and detail of the prior bad act
evidence from overwhelming the case. See Roche, 44 Mass. App.
Ct. at 380 ("a judge must guard against the danger of
overwhelming a case with . . . bad act evidence"); Commonwealth
v. Sapoznik, 28 Mass. App. Ct. 236, 241 n.4 (1990) (to prevent
unfairly prejudicial use of prior bad act testimony, "the judge
should have interjected himself into the trial, even in the
absence of an objection from the defendant"). The admission of
such extensive bad act evidence detailing the defendant's abuse
of the four witnesses in a multitude and variety of manners, in
private and public spaces, and on a near daily basis over a span
of eighteen years -- which evidence was unduly emphasized and
excessive in proportion to the charged conduct evidence --created a risk that the jury would view the defendant as having
15
a propensity to sexually abuse young female relatives. The
volume, detail, and emphasis on the objected-to prior bad act
evidence in this case thus raises the fundamental concern that
the jury would be overwhelmed by this evidence and convict the
defendant on an impermissible basis. See Peno, 485 Mass. at
398, citing Crayton, 470 Mass. at 250-251, 254; Dwyer, 448 Mass.
at 128-129. Contrast Nascimento-Depina, 496 Mass. at 9 (risk of
unfair prejudice from prior bad acts slight where prosecutor
made limited inquiry into uncharged conduct and related
testimony lacked detail); King, 387 Mass. at 472–473;
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 74 (2018) (prior
bad act evidence did not overwhelm case where "the bulk of the
victim's testimony and all four Commonwealth exhibits concerned
the charged conduct"); Commonwealth v. Robertson, 88 Mass. App.
Ct. 52, 58 (2015) (prior bad act evidence did not overwhelm jury
where witness's testimony was brief and not "extremely
detailed").
The judge could have prevented the cumulative effect of
JG's and KG's bad act evidence from overwhelming the jury by
either limiting the volume and detail of such evidence prior to
trial, or intervening during trial by reducing the prior bad act
testimony and instructing the prosecutor to refrain from
emphasizing such evidence during closing argument. See, e.g.,
Helfant, 398 Mass. at 225 (trial judge, who was "commendably
16
sensitive to the potential for undue prejudice . . . , conducted
a voir dire and strictly limited the scope of the two [prior bad
act] witnesses' testimony"); Commonwealth v. Imbruglia, 377
Mass. 682, 695 (1979) (trial judge, by excluding some prior bad
act evidence, requesting prosecutor to limit references to such
evidence, and repeating limiting instructions, "was careful to
keep the trial focused on the specific crimes charged").
In concluding that the bad act evidence overwhelmed the
jury in this case, we reject the Commonwealth's contention that
the judge's instructions adequately mitigated the risk of the
potential for unfair prejudice. Although the judge properly
instructed the jury that they could not consider the objected-to
prior bad act evidence as proof that the defendant had a
criminal personality or bad character, the judge did not
adequately instruct the jury that they could consider the
evidence only for limited, nonpropensity purposes. Instead, the
judge adopted the Commonwealth's proposed instruction by
advising the jury, contemporaneously to JG's and KG's respective
testimony, that they may consider the bad act evidence to show
"motive, opportunity, state of mind, intent, preparation, plan,
pattern of conduct, relationship between the [d]efendant and a
victim, knowledge, identity, absence of mistake, or accident."7
7 In his final charge, the judge instructed the jury on the prior bad act evidence as follows:
17
We take this opportunity to repeat the Supreme Judicial
Court's emphasis on "the importance of specificity and precision
in the context of ruling on bad act evidence." Commonwealth v.
Samia, 492 Mass. 135, 148 n.8 (2023). As stated in Samia,
supra,
"[p]ractitioners should avoid justifying the admission of
bad act evidence simply by reciting a list of permissible
nonpropensity purposes that have been previously accepted
by this court or discussed in Mass. G. Evid. § 404(b) &
note. Proffering a laundry list of nonpropensity purposes
is not helpful, nor is it proper. Indeed, it is
counterproductive. Rather, counsel proffering bad act
evidence should articulate the precise nonpropensity
purpose for the proffered evidence, and the judge should
instruct the jury that they may consider the evidence only
for that narrow nonpropensity purpose."
"Israel Rosa Figueroa is not charged with committing
any crime other than the crimes charged in the indictments.
You have heard testimony about acts of sexual misconduct
allegedly done by Israel Rosa Figueroa with [JG] and [KG].
You may not take that as a substitute for proof that Israel
Rosa Figueroa committed the crimes charged, nor may you
consider it as proof that Israel Rosa Figueroa has a
criminal personality or bad character.
"However, you may consider this information solely on
the limited issue of showing motive, opportunity, state of
mind, intent, preparation, plan, pattern of conduct,
relationship between a victim and a defendant, knowledge,
absence of mistake, or accident.
"You may not consider this evidence for any other
purpose. Specifically, you may not use it to conclude that
if Israel Rosa Figueroa committed the other act he must
also have committed the crimes charged in this case."
18
Here, however, even if the instructions had been forceful
and narrowly tailored to the evidence, the prior bad act
evidence in this case was so voluminous, "the risk that the jury
will not, or cannot, follow [even proper] instructions [was] so
great, and the consequences of failure so vital to the
defendant, that the practical and human limitations of the jury
system cannot be ignored." Commonwealth v. McCaffrey, 36 Mass.
App. Ct. 583, 588 (1994), quoting Commonwealth v.
De Christoforo, 360 Mass. 531, 548 (1971). "Such a risk obtains
'[p]articularly in sexual assault cases [where] the extraneous
evidence may have a gripping quality and asking the jury to
disregard it may be tantamount to asking the jury to ignore that
an elephant has walked through the jury box'" (citation
omitted). McCaffrey, supra. See Commonwealth v. Elliot, 393
Mass. 824, 834 (1985) ("where the evidence subject to
limitations has an extremely high potential for unfair
prejudice, we have a duty to be skeptical as to the
effectiveness of limiting instructions" [citation omitted]).
2. Prejudicial error. As the defendant timely objected to
the admission of the prior bad act testimony of JG and KG, we
review for prejudice.8 Commonwealth v. Correia, 492 Mass. 220,
8 The defendant's arguments supporting his objections, in both his motion in limine and during argument at trial, to the admission of the prior bad acts included his claims that the prior bad acts were being offered as propensity evidence, and
19
232 (2023). "An error is nonprejudicial only if we are
convinced that the error did not influence the jury, or had but
very slight effect" (quotation and citation omitted). Peno, 485
Mass. at 399. "To decide whether the errors at trial amounted
to prejudicial error, we must determine, after pondering all
that happened without stripping the erroneous action from the
whole, [whether] the judgment was not substantially swayed by
the error" (quotation and citation omitted). Id. In making
this determination, we consider a nonexhaustive list of factors,
including "the frequency of the improper references; whether the
error was central to the trial; the strength of the
Commonwealth's case; whether limiting instructions mitigated the
error; and whether the jury were able to sort between the
permissible and impermissible evidence such that the defendant
was not prejudiced by the error." Correia, 492 Mass. at 232.
that the volume of the acts would unfairly prejudice the defendant. This argument was sufficient to preserve the defendant's claim on appeal that the prior bad act evidence as introduced overwhelmed the evidence of charged conduct. See Commonwealth v. Bohigian, 486 Mass. 209, 219 (2020), citing Commonwealth v. Grady, 474 Mass. 715, 718-719 (2016). See also Commonwealth v. McDonagh, 480 Mass. 131, 138 (2018) ("An objection adequately preserves the claimed error so long as counsel makes known to the court the action which he desires the court to take or his objection to the action of the court" [quotations and citation omitted]). The Commonwealth does not contend otherwise.
20
We are not convinced the jury was not influenced by the
admission of the objected-to prior bad act evidence. The prior
bad act witnesses' testimony went to the heart of the issue at
trial, i.e., each victim's credibility, by developing a pattern
of abuse that corroborated the named victims' accounts of sexual
abuse. The Commonwealth's case was not overwhelming, as there
was no conclusive forensic or other compelling corroborative
evidence.9 See Commonwealth v. Santiago, 425 Mass. 491, 503
(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525
U.S. 1003 (1998) (error prejudicial where evidence of
defendant's guilt "was not so overwhelming as to overcome the
errors"); Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 207-208 (2012) (errors prejudicial where evidence against defendant
was not overwhelming but reliant on victim's credibility).
Contrast Commonwealth v. Cronin, 495 Mass. 170, 181 (2025)
(error nonprejudicial where evidence against defendant was
9 The defendant, who did not testify, presented a defense where he denied the charges, challenged the victims' and prior bad act witnesses' credibility and motives for reporting the sexual abuse, argued that victim one's report influenced the other victims, emphasized that there was no corroborating evidence for the charged offenses, and argued that the Commonwealth used the prior bad act witnesses to pile on uncharged accusations to improperly establish propensity to commit the charged crimes. The defendant further claimed during trial, and now argues on appeal, that his defense strategy was adversely affected by the admission of the volume of prior bad act evidence.
21
overwhelming); Peno, 485 Mass. at 400-402 (erroneous admission
of prior bad act evidence did not unfairly prejudice defendant
in light of other compelling incriminating evidence, including
defendant's own statements and conduct). The quantity of the
objected-to prior bad act evidence presented an enormous risk
that the jury would impermissibly conclude that the excessive
evidence showing the defendant's protracted sexual abuse of the
children in his family established his propensity to commit the
charged crimes. Because we are not satisfied that the defendant
received a trial free of undue prejudice, the defendant is
entitled to a new trial, should the Commonwealth choose to
pursue one.10
Judgments vacated.
Verdicts set aside.
10The defendant also claims errors in (1) the admission of first complaint testimony as part of the prior bad act evidence, and (2) a prior bad act witness improperly opining that the defendant was abusing one of the named victims. Because we conclude that the prior bad act witnesses' testimony unfairly prejudiced the defendant, we do not reach these issues.