Commonwealth v. Oberle

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SJC-12149

COMMONWEALTH vs. WILLIAM OBERLE.

Norfolk. December 8, 2016. - February 28, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &

Budd, JJ.

Assault and Battery. Kidnapping. Jury and Jurors. Practice,

Criminal, Jury and jurors, Challenge to jurors. Evidence,

Prior misconduct.

Indictments found and returned in the Superior Court

Department on September 17, 2014.

The cases were tried before Raymond J. Brassard, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Merritt Schnipper for the defendant.

Michael McGee, Assistant District Attorney, for the

Commonwealth.

BOTSFORD, J. The defendant, William Oberle, appeals from

three assault and battery convictions, G. L. c. 265, § 13A (a),

and a kidnapping conviction, G. L. c. 265, § 26, arising out of

an incident of domestic violence. The defendant argues that the

2

trial judge erred in denying his peremptory challenge of a

female juror and in admitting prior bad act evidence. We reject

both arguments and affirm the judgments of conviction of assault

and battery. The defendant also argues that there was

insufficient evidence to support his kidnapping conviction. We

are unpersuaded, and affirm that conviction.

1. Background. a. Facts. Because the defendant

challenges, in part, the sufficiency of the trial evidence, we

summarize it in the light most favorable to the Commonwealth.

Commonwealth v. Latimore, 378 Mass. 611, 676-677 (1979). The

defendant and the victim began a romantic relationship in the

summer of 2013. The defendant made the victim feel

uncomfortable and insecure, and prevented her from looking at or

speaking with others in public. In February, 2014, the victim

went to a hospital emergency room with bruising to her ears,

face, neck, and arm after the defendant had beaten and strangled

her. As he wrapped his hands around her neck during that

incident, the defendant told the victim he was going to kill

her.

The couple soon reconciled and moved together to the home

of the defendant's daughter in Dedham. They occupied a bedroom

in the basement of the house, which had a private back door and

3

a shared exit through the first-floor kitchen.1 Although their

relationship briefly stabilized following the move, the

defendant's physical abuse of the victim resumed, and the

defendant struck the victim's face on multiple occasions. The

victim struggled with alcohol and was intoxicated daily during

this period.

On July 4, 2014, the defendant and victim argued because

the defendant refused to return the victim's bank card, an act

she took as a sign that he was again using drugs. Following the

argument, the defendant left; the victim stayed home, drank

several beers, and went to bed. When the defendant returned to

the house after midnight, the argument escalated. The defendant

punched the victim's face, chest, and legs. He held her down

and choked her, saying he would kill her. The victim was unable

to call for help because the defendant had taken her cellular

telephone the day before.

The victim lost consciousness for an unspecified period of

time. When she woke up, the defendant was still on top of her,

shouting, with his hands around her neck. The victim was unsure

how she got away or how much time had passed, but recalled that

there was daylight when she ran out the back door of the

basement. Barefoot, bleeding, and wearing only her pajamas, she

1

The defendant's daughter and grandson lived on the first

floor. A roommate also lived upstairs.

4

ran across the street and hid in the garage of a rental car

business. The defendant initially remained in the basement

bedroom, but the victim saw him walk down the driveway as she

waited for the business to open so that she could telephone the

police.

Matthew Kronk arrived to open the rental car business at

approximately 7:30 A.M. The victim approached Kronk to ask for

help, and he telephoned 911. Paramedics and Dedham police

officers responded to the scene and brought the victim to the

hospital, where her injuries were photographed. They included

bruising to the arm and left eye, bleeding in the nose and ear,

and neck abrasions. The victim's treating physician opined that

these injuries were consistent with multiple blows to the face

and body, and with strangulation.

b. Procedural history. The defendant was indicted on

charges of attempted murder, kidnapping, witness intimidation,

and four counts of assault and battery. At the close of the

Commonwealth's case, the defendant moved for a required finding

of not guilty on the charges. The judge allowed the motion in

relation to the charge of witness intimidation but denied it for

the remaining charged crimes. The defendant renewed his motion

at the close of the defense case, and it was again denied.

The jury acquitted the defendant of attempted murder and

one of the assault and battery charges, and convicted him of

5

kidnapping and three counts of assault and battery.2 The

defendant filed a timely notice of appeal, and we allowed his

application for direct appellate review.

2. Discussion. a. Peremptory challenges. We begin by

summarizing what happened at trial during jury selection. After

directing a series of questions to the jury venire as a group

and noting their answers, the trial judge conducted an

individual voir dire of every prospective juror called. Both

counsel and the defendant were present at sidebar for the

judge's individual juror questioning, and the judge required

counsel to raise any peremptory challenge to a prospective juror

immediately after the judge completed his questioning.

The judge excused for cause the first prospective juror

called (juror no. 1), a woman, because her close friend's recent

experience with domestic violence was likely to influence her

thinking. Juror no. 2, a man, was seated. The defendant

exercised a peremptory challenge to juror no. 3, a woman who was

a college sophomore. Juror no. 4, a woman with at least twenty-

three years' professional experience, was seated without

challenge. The judge excused jurors nos. 5 and 6, both of whom

2

The judge sentenced the defendant to from three and one-

half to five years in State prison on the kidnapping conviction,

and to ten years' probation on each of the assault and battery

convictions; the probationary sentences were concurrent with

each other, from and after the defendant's prison sentence on

the kidnapping conviction.

6

were women whose family or friends had been victims of domestic

violence. The defendant exercised his second peremptory

challenge to juror no. 7; she was a college student studying

criminal justice who had "lost faith" in "the system."

The defendant exercised his third peremptory challenge to

juror no. 8, the seventh woman out of the first eight

prospective jurors called. The judge allowed the challenge.

Before doing so, the following exchange between the judge and

the defendant's counsel took place:

The judge: "Counsel, I think there's a pattern of excusing

female jurors. This is the second one or the third; one of

them I think I understand. The juror we had a few moments

ago spoke about knowing people in prison and the like. But

I think there's a clear pattern here of excusing younger

female jurors. [Juror no. 8], like the others you excused,

they were all in their twenties, perhaps early thirties at

the oldest. And I'm going to make that finding and require

you give me a reason."

Defense counsel: "Okay. I'd suggest that I have had no

choice but to excuse female jurors because that's all we've

had up here except we had one man up here so far. We have

excused one because we had clear questions about her

ability to be unbiased; she said so right in the report.

The other two my client did not feel comfortable with. We

have a lot of female -- "

The judge: "'Not feeling comfortable' is not going to do

it."

Defense counsel: "Peremptories. It's a peremptory

challenge. If it was an even number of men and women that

we have been interviewing, but we've only interviewed, what

-- so we're interviewing -- we've allowed one on. So I'd

suggest that we've been completely unbiased in the way that

we've chosen. We had no alternative other than to excuse

women because that's all we've been faced with is women, so

-- "

7

The judge: "There's no requirement to excuse good jurors,

whatever their gender. . . . I think there's a marked

pattern, [defense counsel]. I'm going to give you --

really lean over backwards and give you the benefit of the

doubt with this juror. But that will be the last one,

because what you have given me by way of explanation is

wholly inadequate. I don't doubt that you're being

truthful; I have no reason to doubt that. But the

substance of what you've explained is that there is no

substance to it, none whatsoever."

The next seven prospective jurors called were five men and

two women. Of this group, two men and one woman -– a person

with fourteen years' experience as an elementary school teacher

-- were seated without challenge. The judge excused one man due

to a scheduling conflict, and the Commonwealth exercised

peremptory challenges with respect to two other men. The

defendant sought to exercise a peremptory challenge to the next

prospective juror called, juror no. 15, a thirty-eight year old

woman with fifteen years' experience as a teacher and then a

teacher recruiter for a company offering early childhood

education and care. When the judge asked the juror about her

exposure to domestic violence, she stated that she had filed

three reports of child abuse during her time as a teacher. This

exchange followed:

Defense counsel: "We will exercise a peremptory challenge

based on her answers to your questions, based on what she

has done for [fifteen] years, based on the fact she saw

51As on three occasions, giving her intimate knowledge of

that whole aspect of the world of a cycle -- "

8

The judge: "There's no 51A issue here."3

Defense counsel: "No, but that is a field that deals with

abuse, deals with aggression, deals with violence within

families, within relationships, and that is something she

has intimated now she has a very good knowledge of. It's a

knowledge well enough that she has filed 51As on three

occasions. And that's the basis of our -- and note that

she's a [thirty-eight year] old lady, so she's older than

just a young girl. And I think our challenge is merited."

The judge: "I'm going to deny the exercise of that

peremptory challenge. There is a pattern here. I think

that the defendant and counsel are seizing upon the

background of this particular juror, and I am not persuaded

that this is anything other than a pretext, respectfully;

and I think it's an effort to keep females off the jury.

It's a distinct pattern. And I have examined the juror

with care, perceive absolutely no basis or substance for

this challenge. So I'm going to disallow it."

Juror no. 15 was seated over the defendant's objection and

participated in the jury's deliberations.

There were ten men and five women remaining in the venire.

Of this group, the judge excused a man who knew one of the

witnesses, a man who believed people accused of domestic

violence were guilty, and a man who admitted to bias in favor of

police. The judge also excused a woman who was the director of

a residential program for women with addictions, explaining,

"[T]here may be some evidence to the effect that the alleged

victim, who is a female, had or may have had some sort of

drinking, alcohol issue." The defendant exercised his three

3

General Laws c. 119, § 51A, requires mandated reporters,

including teachers like juror no. 15, to report suspected child

abuse or neglect to the Department of Children and Families.

9

remaining peremptory challenges to two men and one woman in this

group. The judge allowed the defendant's challenge of the woman

(as well as the men), noting that women had been seated since

the blocked challenge to juror no. 15.

From a jury venire composed of sixteen men and fourteen

women, eight men and six women were seated; seven male and five

female jurors ultimately deliberated.

The defendant argues that the trial judge's denial of his

peremptory challenge to juror no. 15 constituted error, and

because the error was structural, it entitles him to reversal of

his convictions. Further, he argues that given the absence of

detailed findings, the judge's ruling warrants no deference on

review. The Commonwealth contends that the judge acted within

his considerable discretion in denying the defendant's challenge

and also made sufficient findings in support of that denial.

The record shows that the defendant's arguments are not without

some basis, but we conclude that the defendant's claim for

reversal must fail.

"Peremptory challenges cannot be used 'to exclude members

of discrete groups solely on the basis of bias presumed to

derive from that individual's membership in the group.'"

Commonwealth v. Rodriguez, 431 Mass. 804, 807 (2000), quoting

Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444

U.S. 881 (1979). A peremptory challenge may not be based on a

10

prospective juror's gender, because gender is a discrete

grouping defined in art. 1 of the Massachusetts Declaration of

Rights, as amended by art. 106 of the Amendments to the

Massachusetts Constitution. Soares, supra at 486 & n.29. See

Rodriguez, supra. However, age is not a discrete grouping

defined in the Constitution, and therefore a peremptory

challenge may permissibly be based on age. Commonwealth v.

Samuel, 398 Mass. 93, 95 (1986). Peremptory challenges are

presumed to be proper, but that presumption may be rebutted on a

showing that (1) there is a pattern of excluding members of a

discrete grouping and (2) it is likely that individuals are

being excluded solely on the basis of their membership in that

group. Commonwealth v. Issa, 466 Mass. 1, 8-9 (2013), and cases

cited. Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003),

and cases cited. The burden of making a prima facie showing of

a discriminatory pattern "ought not be a terribly weighty one."

Maldonado, supra at 463 n.4.

Once such a pattern is found, the burden shifts to the

party exercising the challenge to provide a "group-neutral"

explanation for it. Maldonado, 439 Mass. at 463. The judge

must then determine whether the explanation is both "adequate"

and "genuine":

"An explanation is adequate if it is 'clear and

reasonably specific,' 'personal to the juror and not

based on the juror's group affiliation,' . . . and

11

related to the particular case being tried. . . . An

explanation is genuine if it is in fact the reason for

the exercise of the challenge. . . . An explanation

that is perfectly reasonable in the abstract must be

rejected if the judge does not believe that it

reflects the challenging party's thinking."

(Citations omitted; emphases in original.)

Id. at 464-465.

An erroneous denial of a peremptory challenge is a

structural error, requiring reversal without a showing of

prejudice. See Commonwealth v. Hampton, 457 Mass. 152, 164-165

(2010), and cases cited. A trial judge has considerable

discretion in ruling on whether a permissible ground for the

peremptory challenge has been shown, and we will not disturb

that ruling so long as it is supported by the record.

Rodriguez, 431 Mass. at 811.

Here, it is true that when the judge first found a

discriminatory pattern at the point the defendant challenged

juror no. 8, seven of the eight prospective jurors who had been

called had been women, and the pattern he identified was based

on only two prior strikes of "young women." The judge's

articulated reason for finding a pattern is troubling in that,

as we previously noted, "[t]here is no constitutional basis for

challenging the exclusion of young persons." Samuel, 398 Mass.

at 95. Compare Commonwealth v. Jordan, 439 Mass. 47, 62 (2003)

(challenges based on combination of race and gender violate art.

12 of Massachusetts Declaration of Rights). But even assuming

12

for argument that there was no basis for finding an

impermissible pattern at the time the judge declared one, the

judge did not reject the defendant's peremptory challenge to

juror no. 8. Rather, the judge allowed the challenge, and the

juror was excused. By the time the defendant exercised another

peremptory challenge -- to juror no. 15, a thirty-eight year old

woman -- all three of the defendant's previous peremptory

challenges had been to women, and juror no. 15 would have been

the fourth out of four. And, significantly, the judge's

statements concerning the defendant's proffered challenge to

juror no. 15, quoted supra, indicate with reasonable clarity

that the pattern the judge found to exist was a pattern of

challenging women (his reference was to "females") as a group,

not a pattern based solely on young women -- i.e., age. Compare

Samuel, supra. Even though the venire contained a substantial

number of women and two women had previously been seated as

jurors, we are not persuaded that the judge abused his broad

discretion in finding an impermissible pattern at the point he

rejected the defendant's peremptory challenge to juror no. 15.

See Rodriguez, 431 Mass. at 811 (that women were

disproportionately represented in venire, had been seated on

jury, and remained in venire did not preclude judge from finding

that defendant lacked gender-neutral reason for peremptory

challenge).

13

Irrespective of when a pattern is initially found to exist,

once it occurs, the critical point of focus for the trial judge

as well as the appellate court turns to the adequacy and

genuineness of the explanation proffered by the party seeking to

exercise the peremptory challenge. See Maldonado, 439 Mass. at

465. Because a judge must find that both the adequacy and

genuineness prongs of the explanation are satisfied in order to

allow a peremptory challenge once a pattern has been identified,

see id. at 464-465, the judge's determination that either one

falls short is sufficient to support its denial. See

Commonwealth v. LeClair, 429 Mass. 313, 323 (1999) (affirming

judge's disallowance of peremptory challenge after judge found

it disingenuous). Here, unfortunately, the judge did not make

specific findings concerning the adequacy of the defendant's

proffered reason for challenging juror no. 15. But even if we

were to assume that the proffered explanation that juror no.

15's experience as a mandated reporter of child abuse qualified

as an individualized, group-neutral, and adequate explanation

for the challenge, the judge was not thereby obligated to accept

that explanation as genuine. See Maldonado, supra at 465. The

judge pointed out that there was no child abuse at issue in this

case, specifically found that the defendant's proffered

explanation for the challenge was a pretext for keeping women

off the jury, and denied the challenge for that reason. See

14

Commonwealth v. Curtiss, 424 Mass. 78, 82-83 (1997) (affirming

judge's disallowance of peremptory challenge of African-American

juror whose spouse worked for State child welfare agency, where

case did not concern child abuse). Although the judge clearly

should have addressed the adequacy of the defendant's proffered

reasons for challenging juror no. 15, we conclude that the judge

did not abuse his discretion in finding a lack of genuineness.4

We thus affirm the judge's denial of the defendant's peremptory

challenge to juror no. 15.

b. Sufficiency of the evidence of kidnapping. The

defendant claims that there was insufficient evidence to support

his conviction of kidnapping under G. L. c. 265, § 26.

Specifically, he argues that the Commonwealth failed to prove

any act of confinement or restraint beyond that inherent in the

underlying assaults and batteries. In reviewing this claim, we

consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational

4

We emphasize again that it is important that a judge make

the required separate and specific findings as to the adequacy

and genuineness of an explanation for the exercise of a

peremptory challenge once a pattern of improper exclusion has

been made. Because an erroneous denial of a peremptory

challenge constitutes structural error, Commonwealth v. Hampton,

457 Mass. 152, 164 (2010), it is critical that the record on

appeal reflect the judge's reasoning in order to allow for

appropriate appellate review. Cf. Commonwealth v. Issa, 466

Mass. 1, 11 n.14 (2013) (discussing importance of findings in

reviewing judge's allowance of prosecutor's challenge to

African-American juror).

15

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Latimore, 378 Mass. at 676-

677. We conclude that the Commonwealth offered sufficient

evidence of kidnapping independent of the assaults and

batteries, and accordingly, we affirm the defendant's kidnapping

conviction.

To prove a person guilty of kidnapping, the Commonwealth

must establish beyond a reasonable doubt that the person

"without lawful authority, forcibly or secretly confine[d] or

imprison[ed] another person within this commonwealth."5 G. L.

c. 265, § 26. "[T]he essential element of kidnapping is not the

level of violence but rather the defendant's forcible or secret

confinement or imprisonment of the victim against [her] will."

Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 334 (1999).

"Confinement is 'broadly interpreted to mean any restraint of a

person's movement.'" Commonwealth v. Boyd, 73 Mass. App. Ct.

190, 193 (2008), quoting Commonwealth v. Lent, 46 Mass. App. Ct.

705, 710 (1999). See Commonwealth v. Dykens, 438 Mass. 827, 841

(2003). It is not required that the Commonwealth prove a

specific intent to confine, Commonwealth v. Ware, 375 Mass. 118,

5

In contrast, assault and battery requires that the

defendant intentionally commit a "harmful [or] offensive

touching[]" of the victim, without justification or excuse. See

Commonwealth v. Burke, 390 Mass. 480, 482 (1983) (discussing

common-law crime of assault and battery, as codified at G. L.

c. 265, § 13A).

16

119-120 (1978), but the act of confinement must be independent

of the other crimes at issue, Boyd, supra at 195. As the

Appeals Court has explained:

"The consistent rule of the decisions is that

confinement, detention, or restraint exceeding the conduct

necessary for commission of the other charged offenses

constitutes independent, not incidental, conduct. In the

generic scenario of these cases, the perpetrator has

deceived or forced the victim into confinement enabling the

accomplishment of a grievous crime against the person of

the victim. In those circumstances, the confinement is

facilitation, and not duplication, of the further offense.

"The distinction is not a technicality. It embodies

the reality of the separate and specific injury inflicted

upon the trapped victim as a captive: the frustration and

indignity of detention; the experience of vulnerability and

helplessness; and the dread of an unknown ending."

Id. See Commonwealth v. Rivera, 397 Mass. 244, 253-254 (1986)

(declining to consider "confinement or asportation used as a

means to facilitate the commission of [the charged rape and

robbery] as merged in the substantive crime").

This case presents no basis for a departure from these

principles. Indeed, the evidence of confinement amounts to just

the "separate and specific injury" contemplated in Boyd. Here,

a rational juror could have found that the defendant told the

victim he was going to kill her, held her down by the throat,

and ignored her plea that he stop, and that she was unable to

call for help and attempted to leave but could not. The

victim's testimony also reasonably permitted a finding that she

had experienced difficulty breathing and ultimately lost

17

consciousness, and that when she regained consciousness, the

defendant was still on her, shouting, with his hands around her

neck. Finally, a rational juror could have concluded that the

victim attempted to leave the shared bedroom but for some time

could not, and that this confinement was protracted: although

it was dark when the entire incident began, it was light by the

time the victim escaped, barefoot, injured, and wearing only her

pajamas.

Particularly where "[a]ny restraint of a person's liberty"

has long been adequate (citation omitted), Dykens, 438 Mass. at

841, the evidence here of confinement independent of the other

charged crimes was sufficient to support the defendant's

conviction of kidnapping. See Commonwealth v. Brown, 66 Mass.

App. Ct. 237, 242 (2006) (evidence of confinement sufficient to

support kidnapping component of aggravated rape charge where

defendant poked victim with stick, threatened to kill her, and

prevented her from leaving); Lent, 46 Mass. App. Ct. at 710 &

n.5 (evidence sufficient to support kidnapping conviction where

defendant showed victim a gun, pulled her by her jacket, and

constrained her by holding onto her backpack while they walked

toward his truck, even where victim was able to escape before

being forced into vehicle).

c. Prior bad act evidence. Before trial, the Commonwealth

moved in limine to admit evidence, including photographs, of the

18

February, 2014, beating of the victim by the defendant. Defense

counsel argued that this was prior bad act evidence that would

be unfairly prejudicial and inflame the jury. The judge,

however, allowed the evidence as illustrative of "the entire

relationship between the two." At trial, the Commonwealth

introduced, over the defendant's objection, testimony from the

victim and Worcester police officer Jose Ortiz about the

February, 2014, incident, and three photographs of bruising on

the victim's face, neck, and arm resulting from the incident.

Each photograph was enlarged to poster size and displayed on

easels facing the jury during the victim's testimony. Seventeen

photographs of the July, 2014, incident were also admitted, with

ten similarly enlarged and displayed alongside the three

photographs of the February incident.

The judge gave a limiting instruction at the close of the

victim's testimony, telling jurors they were permitted to

consider evidence of the February, 2014, incident only "insofar

as [they] find it bears on . . . the relationship between the

witness and the defendant, the intent with respect to the events

at issue in this case, the motive, the absence of a mistake, or

the absence of accident." He repeated this instruction in his

final charge.

The defendant argues that the judge erred in admitting

evidence of the prior incident of alleged domestic violence

19

between him and the victim because the evidence was of the

defendant's prior bad acts and the probative value of that

evidence was outweighed by its unfairly prejudicial effect. We

disagree.6

Evidence of prior bad acts is not admissible to show a

defendant's bad character or propensity to commit the charged

crime, but may be admissible if relevant for other purposes such

as common scheme, pattern of operation, identity, intent, or

motive. Commonwealth v. Carriere, 470 Mass. 1, 16 (2014). Even

if such evidence is relevant for other purposes, however, its

probative value must not be outweighed by its prejudicial

effect. Commonwealth v. Crayton, 470 Mass. 228, 249-250 & n.27

(2014). See Mass. G. Evid. § 403 (2016). "Determinations of

the relevance, probative value, and prejudice of such evidence

are left to the sound discretion of the judge, whose decision to

admit such evidence will be upheld absent clear error."

Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007), and

cases cited.

It is well established that in appropriate cases, a

defendant's prior acts of domestic violence may be admitted for

the purpose of showing a "defendant's motive and intent and to

depict the existence of a hostile relationship between the

6

The Commonwealth contends that the defendant failed to

preserve an objection to this evidence. The objection appears

to have been properly preserved.

20

defendant and the victim." Commonwealth v. Linton, 456 Mass.

534, 551 (2010), quoting Commonwealth v. Snell, 428 Mass. 766,

777, cert. denied, 527 U.S. 1010 (1999). See Commonwealth v.

Butler, 445 Mass. 568, 574 & n.6 (2005). Moreover, the

defendant's argument against admission ignores the fact that he

was separately indicted for attempted murder, a crime requiring

the Commonwealth to prove specific intent. See Commonwealth v.

Jordan (No. 1), 397 Mass. 489, 491–492 (1986). See also

Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 236-237 (2002).

Given the crimes with which the defendant was charged and the

relatively short period between the incidents, evidence of the

February, 2014, beating was probative of the defendant's mental

state and intent in relation to the victim at the time of the

July, 2014, offenses, and in our view, not unfairly prejudicial.7

See Jordan (No. 1), supra, and cases cited. "The fact that the

jury did not return verdicts of guilty on the [attempted murder

indictment] is not determinative of the admissibility of the

evidence." Id. at 492 n.4.

The defendant argues further that the photographs of the

prior bad acts were especially inflammatory and unfairly

prejudicial. This argument fails, given that "[t]he

7

It is not a foundational requirement for the admissibility

of prior bad act evidence that the Commonwealth show either that

the evidence is necessary or that there is no alternative way to

prove its case. See Commonwealth v. Copney, 468 Mass. 405, 413

(2014); Mass. G. Evid. § 404(b) (2016).

21

admissibility of photographic evidence rests almost entirely in

the discretion of the judge . . . [and] [i]t is a 'rare

instance[] in which the probative value of [such] evidence is

[so] overwhelmed by its inflammatory potential' that a reversal

would be warranted" (citation omitted). Commonwealth v.

Bradshaw, 385 Mass. 244, 270 (1982). See Commonwealth v. Bell,

473 Mass. 131, 142 (2015), cert. denied, 136 S. Ct. 2467 (2016)

(photographs admissible if relevant to material issue, and "are

not rendered inadmissible solely because they are gruesome [or

duplicative] or may have an inflammatory effect on the jury"

[citation omitted]). Here, the photographs of the February,

2014, incident were relevant to the defendant's intent as to the

incident occurring five months later in July, and the judge did

not abuse his discretion in finding that their probative value

outweighed any unfair prejudice to the defendant.8 See Bell,

supra at 144. Moreover, the judge sought to guard against the

photographs' potential prejudicial effect by carefully

instructing the jury, when the photographs of and related

testimony concerning the February, 2014, incident were

introduced in evidence and again during the final charge, that

8

Although we conclude that the photographic evidence

depicting the victim's injuries resulting from the defendant's

February, 2014, beating was properly admitted, we question the

appropriateness of permitting the prosecutor to display poster-

sized enlargements of the photographs, given the potential for

prejudice inherent in prior bad act evidence. See Commonwealth

v. Crayton, 470 Mass. 228, 249 n.27 (2014).

22

the evidence could be considered only on the issues of the

relationship between the victim and defendant and the

defendant's intent, motive, or absence of mistake or accident --

and not the defendant's propensity to commit the alleged crimes.

The judge did not err in admitting the testimony or the

photographs.

Judgments affirmed.