NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-781
COMMONWEALTH
vs.
SONN KE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was convicted of aggravated rape of a child (by more than a ten-
year age difference) and forcible rape of a child.1 On appeal,
the defendant argues that the judge erred in admitting evidence
of prior uncharged sexual assaults by the defendant against the
victim. Discerning no abuse of discretion or other error of
law, we affirm.
Background. The jury could have found the following facts
based on the evidence presented at trial. Prior to moving to
Massachusetts, the victim lived in California with her mother,
1The defendant was acquitted of three counts of indecent assault and battery on a child. siblings, and the defendant, her stepfather. The defendant
began sexually assaulting the victim when she was in the third
or fourth grade. The family moved to Massachusetts when the
victim was in the seventh or eighth grade. The defendant
continued his sexual assaults on the victim. The victim began
devising a plan to run away.
During her freshman year of high school, when she was
fifteen years old, the victim took an opportunity she had while
outside of her house to call her older stepbrother; he was in
the military and stationed abroad. She told him what the
defendant had been doing to her. Although she had hoped to run
away from home that day before her mother came back from work,
the victim's plans were dashed when she was caught. Back at
home, the victim's mother asked why she was so upset. The
victim told her mother what the defendant had been doing to her.
The victim's mother confronted the defendant, who denied it.
After the confrontation, the defendant did not sexually assault
the victim again, but he continued to live with the family.
The year the victim graduated from high school she moved
back to California. The victim's older stepbrother then
reported the defendant's crimes against the victim to the
police.
Discussion. The Commonwealth filed a motion in limine to
admit evidence of the defendant's sexual assaults against the
2 victim which took place in California. The defendant filed a
motion in limine to exclude these prior acts of sexual assault.
The judge allowed evidence of prior sexual assaults in
California to be admitted for the purpose of establishing the
nature of the defendant's relationship with the victim, a
pattern or course of conduct, state of mind, intent, method, or
a modus operandi. The judge limited this evidence to prior
conduct that is the same as the charged conduct only.2
On appeal, the defendant contends that evidence of the
California sexual assaults on the victim was so pervasive that
it tainted the evidence regarding the charged sexual assaults.
He points in particular to a jury question regarding the
California sexual assaults as supporting the view that the jury
used the prior bad act evidence in an improper and prejudicial
manner. A judge's ruling on the admission of prior bad act
evidence is reviewed for an abuse of discretion. See
Commonwealth v. Nascimento-Depina, 496 Mass. 1, 8 (2025).
Prior bad act evidence is inadmissible for the purpose of
demonstrating a defendant's bad character or propensity to
commit the charged crime. See Commonwealth v. Crayton, 470
Mass. 228, 249 (2014); Mass. G. Evid. § 404(b)(1) (2025). It is
2 The judge ruled that any evidence of the defendant's prior bad acts relating to the victim's younger stepsister was excluded.
3 admissible when it is relevant to establish the defendant's
"motive, opportunity, intent, preparation, plan, knowledge,
identity, or pattern of operation." Crayton, 470 Mass. at 249,
quoting Commonwealth v. Walker, 460 Mass. 590, 613 (2011); see
Mass. G. Evid. § 404(b)(2) (2025). It is also admissible to
establish a common course of conduct or the nature of the
relationship between the victim and the defendant. See
Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994). See
also Nascimento-Depina, 496 Mass. at 8 (where defendant charged
with sexual assault, some evidence of similar uncharged conduct
may be admissible to give jury view of entire relationship
between defendant and victim). Because prior bad act evidence
has an inherent risk of prejudice, however, it should only be
admitted if its probative value is outweighed by the risk of
unfair prejudice to the defendant. See Commonwealth v. Baker,
440 Mass. 519, 530 (2003); Mass. G. Evid. § 404(b)(2).
Here, the prior bad act evidence was probative. The
California sexual assaults involved the same child victim, took
place in the same setting (the family home), and occurred close
in time to the charged conduct. Cf. Commonwealth v. Brusgulis,
406 Mass. 501, 504-505 (1990) (evidence that defendant committed
similar crimes against different victims generally
inadmissible). It shed light on the relationship between the
defendant and the victim and provided context for the charged
4 assaults in Massachusetts, a course of conduct which began in
California. See Barrett, 418 Mass. at 793-794 (evidence of
similar misconduct as charged crime admissible to show nature of
relationship between defendant and victim). See also
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-72 (2018)
(prior bad act evidence of uncharged conduct against same victim
probative of continuing course of conduct, and testimony of
victim would "make little sense" without context of continuous
sexual abuse).
At the same time, the risk of prejudice was slight given
the prosecutor's limited inquiry into the subject.3 Moreover,
the prosecutor referred to the evidence only briefly in closing
to portray a pattern of escalating conduct and even paused to
remind the jury of the purpose of the California sexual assault
evidence. Contrast Commonwealth v. Dwyer, 448 Mass. 122, 128
(2006) (jury were provided with detailed evidence of seven
uncharged acts of sexual abuse by defendant, and more time was
spent on both direct and cross-examination exploring those prior
bad acts than crimes charged).
3 The victim testified that the sexual abuse began with the defendant touching her butt repeatedly until it became "normalized." She went on to say that the defendant would place her hand on his penis, so that she could feel the marble-like objects he had inserted along the shaft, under the skin. She described the first time he had raped her.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-781
COMMONWEALTH
vs.
SONN KE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was convicted of aggravated rape of a child (by more than a ten-
year age difference) and forcible rape of a child.1 On appeal,
the defendant argues that the judge erred in admitting evidence
of prior uncharged sexual assaults by the defendant against the
victim. Discerning no abuse of discretion or other error of
law, we affirm.
Background. The jury could have found the following facts
based on the evidence presented at trial. Prior to moving to
Massachusetts, the victim lived in California with her mother,
1The defendant was acquitted of three counts of indecent assault and battery on a child. siblings, and the defendant, her stepfather. The defendant
began sexually assaulting the victim when she was in the third
or fourth grade. The family moved to Massachusetts when the
victim was in the seventh or eighth grade. The defendant
continued his sexual assaults on the victim. The victim began
devising a plan to run away.
During her freshman year of high school, when she was
fifteen years old, the victim took an opportunity she had while
outside of her house to call her older stepbrother; he was in
the military and stationed abroad. She told him what the
defendant had been doing to her. Although she had hoped to run
away from home that day before her mother came back from work,
the victim's plans were dashed when she was caught. Back at
home, the victim's mother asked why she was so upset. The
victim told her mother what the defendant had been doing to her.
The victim's mother confronted the defendant, who denied it.
After the confrontation, the defendant did not sexually assault
the victim again, but he continued to live with the family.
The year the victim graduated from high school she moved
back to California. The victim's older stepbrother then
reported the defendant's crimes against the victim to the
police.
Discussion. The Commonwealth filed a motion in limine to
admit evidence of the defendant's sexual assaults against the
2 victim which took place in California. The defendant filed a
motion in limine to exclude these prior acts of sexual assault.
The judge allowed evidence of prior sexual assaults in
California to be admitted for the purpose of establishing the
nature of the defendant's relationship with the victim, a
pattern or course of conduct, state of mind, intent, method, or
a modus operandi. The judge limited this evidence to prior
conduct that is the same as the charged conduct only.2
On appeal, the defendant contends that evidence of the
California sexual assaults on the victim was so pervasive that
it tainted the evidence regarding the charged sexual assaults.
He points in particular to a jury question regarding the
California sexual assaults as supporting the view that the jury
used the prior bad act evidence in an improper and prejudicial
manner. A judge's ruling on the admission of prior bad act
evidence is reviewed for an abuse of discretion. See
Commonwealth v. Nascimento-Depina, 496 Mass. 1, 8 (2025).
Prior bad act evidence is inadmissible for the purpose of
demonstrating a defendant's bad character or propensity to
commit the charged crime. See Commonwealth v. Crayton, 470
Mass. 228, 249 (2014); Mass. G. Evid. § 404(b)(1) (2025). It is
2 The judge ruled that any evidence of the defendant's prior bad acts relating to the victim's younger stepsister was excluded.
3 admissible when it is relevant to establish the defendant's
"motive, opportunity, intent, preparation, plan, knowledge,
identity, or pattern of operation." Crayton, 470 Mass. at 249,
quoting Commonwealth v. Walker, 460 Mass. 590, 613 (2011); see
Mass. G. Evid. § 404(b)(2) (2025). It is also admissible to
establish a common course of conduct or the nature of the
relationship between the victim and the defendant. See
Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994). See
also Nascimento-Depina, 496 Mass. at 8 (where defendant charged
with sexual assault, some evidence of similar uncharged conduct
may be admissible to give jury view of entire relationship
between defendant and victim). Because prior bad act evidence
has an inherent risk of prejudice, however, it should only be
admitted if its probative value is outweighed by the risk of
unfair prejudice to the defendant. See Commonwealth v. Baker,
440 Mass. 519, 530 (2003); Mass. G. Evid. § 404(b)(2).
Here, the prior bad act evidence was probative. The
California sexual assaults involved the same child victim, took
place in the same setting (the family home), and occurred close
in time to the charged conduct. Cf. Commonwealth v. Brusgulis,
406 Mass. 501, 504-505 (1990) (evidence that defendant committed
similar crimes against different victims generally
inadmissible). It shed light on the relationship between the
defendant and the victim and provided context for the charged
4 assaults in Massachusetts, a course of conduct which began in
California. See Barrett, 418 Mass. at 793-794 (evidence of
similar misconduct as charged crime admissible to show nature of
relationship between defendant and victim). See also
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-72 (2018)
(prior bad act evidence of uncharged conduct against same victim
probative of continuing course of conduct, and testimony of
victim would "make little sense" without context of continuous
sexual abuse).
At the same time, the risk of prejudice was slight given
the prosecutor's limited inquiry into the subject.3 Moreover,
the prosecutor referred to the evidence only briefly in closing
to portray a pattern of escalating conduct and even paused to
remind the jury of the purpose of the California sexual assault
evidence. Contrast Commonwealth v. Dwyer, 448 Mass. 122, 128
(2006) (jury were provided with detailed evidence of seven
uncharged acts of sexual abuse by defendant, and more time was
spent on both direct and cross-examination exploring those prior
bad acts than crimes charged).
3 The victim testified that the sexual abuse began with the defendant touching her butt repeatedly until it became "normalized." She went on to say that the defendant would place her hand on his penis, so that she could feel the marble-like objects he had inserted along the shaft, under the skin. She described the first time he had raped her. The remainder of her testimony related to the sexual assaults in Massachusetts.
5 Moreover, the judge gave limiting instructions immediately
after the victim's testimony concerning the California sexual
assaults, again after a jury question, and yet again in the
final charge to the jury. See Commonwealth v. Bryant, 482 Mass.
731, 735 (2019) (effectiveness of limiting instructions should
be considered in balancing probative value versus unfair
prejudice). The judge reminded the jury on three separate
occasions that it would be "extremely unfair" to use the sexual
assaults in California as evidence of the defendant's bad
character or his propensity to commit the crimes charged. See
Commonwealth v. Almeida, 479 Mass. 562, 569 (2018) (limiting
instruction to jury both when prior bad act evidence was
introduced and in final charge minimized prejudicial effect from
admission).
Nor does the jury question concerning the California sexual
assaults signal that the jury misused the California evidence.
During the victim's testimony, a juror handed up a note that
stated the following: "please clarify status of any charges
brought against defendant in the State of California." Rather
than signify confusion as to the charges, the note tended to
show that the juror understood that the California sexual
assaults were not part of the Massachusetts case under
consideration by the jury. Moreover, the jury acquitted the
defendant on three charges, demonstrating that it was not
6 overwhelmed by the evidence of the prior sexual assaults in
California, nor that it was using that evidence to consider the
defendant's propensity to commit the charged crimes. See
Commonwealth v. Butler, 445 Mass. 568, 576 (2005) (jury
acquitting defendant on serious assault and battery charge shows
it listened to judge's instructions on not using prior bad act
evidence as propensity to commit charged crime). See also
Commonwealth v. Linenkemper, 104 Mass. App. Ct. 467, 473 n.9
(2024) (jury acquitting defendant of certain charges
demonstrated it was not "unduly swayed" by admission of prior
bad act evidence). The jury acquittal on three of five charges
shows that it carefully considered each charge and that it was
not so overwhelmed by the prior bad act evidence to dispense
with proof beyond a reasonable doubt and convict the defendant
across the board. Id. Contrast Commonwealth v. Stone, 321
Mass. 471, 473 (1947) (risk that jury will dispense with burden
of proof and use prior bad act evidence as propensity for
defendant to commit charged crime). Under the circumstances,
the judge was well within her discretion in determining that the
7 California sexual assaults were more probative than prejudicial
and properly admitted the evidence at trial.
Judgments affirmed.
By the Court (Singh, D'Angelo & Hodgens, JJ.4),
Clerk
Entered: August 14, 2025.
4 The panelists are listed in order of seniority.