Commonwealth v. Sonn Ke.

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

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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.

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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

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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.

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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

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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

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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.

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