Commonwealth v. Christie (Lawyers Weekly No. 11-079-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   12-P-1659                                       Appeals Court   COMMONWEALTH  vs.  GLENN CHRISTIE. No. 12-P-1659. Essex.     January 11, 2016. – July 5, 2016.   Present:  Grainger, Rubin, & Milkey, JJ.     Rape.  Indecent Assault and Battery.  Obscenity, Dissemination of matter harmful to minor.  Evidence, Videotape, Relevancy and materiality.       Indictments found and returned in the Superior Court Department on June 15, 2007.   The cases were tried before David A. Lowy, J., and a motion for new trial, filed on July 2, 2013, was heard by him.     Alexei Tymoczko for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.      RUBIN, J.  The defendant appeals from his convictions on four counts of statutory rape, G. L. c. 265, § 23, one count of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and one count of dissemination to a minor of matter harmful to minors, G. L. c. 272, § 28.  The Commonwealth concedes that there was no evidence to support one of the statutory rape convictions, which therefore must be reversed and the indictment dismissed.  In addition, because evidence of possession of videotape depictions of adult men engaged in same-sex sex was improperly admitted to demonstrate the defendant’s sexual interest in the alleged victim, a twelve year old boy, the convictions on the other counts, except the dissemination count, also must be reversed.[1] Background.  The alleged victim, whom we shall call Daniel, testified that in the summer of 2005, when he was twelve years old and he and his mother were living with the defendant, the defendant twice performed oral sex on him.  He testified further that he briefly complied with the defendant’s request that he penetrate the defendant anally.  He also testified that the defendant went into a “porn store” while Daniel waited in the car, and purchased a “sex toy,” described at trial as a “fake penis,” and two digital video discs (DVDs).  On returning home, the defendant played one of the DVDs, showing “[a] male and a female having sexual intercourse” on a DVD player in the living room.  The defendant also inserted the sex toy into Daniel’s anus, stopping when Daniel said he was “uncomfortable.”  Daniel also testified that he later saw “two men having sexual intercourse” on the other DVD. Two of the convictions […]

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