Commonwealth v. Christopher Eaton.

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-779

COMMONWEALTH

vs.

CHRISTOPHER EATON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court trial, a jury found the defendant,

Christopher Eaton, guilty of two counts of rape of a child

(aggravated by a five-year age difference), one count of assault

with intent to rape a child, and four counts of indecent assault

and battery on a child under fourteen, each involving the same

victim, the daughter of his then-girlfriend.1 The defendant

appeals, arguing that the judge erred in (1) admitting evidence

of prior bad acts and (2) allowing the amendment of counts seven

(rape of a child, five-year age difference) and nine (indecent

1The defendant was also charged with an additional count
each of rape of a child and assault with intent to rape a child,
but his motion for a required finding of not guilty was allowed
as to these counts.
assault and battery on a child under fourteen), after the close

of the Commonwealth's case, to expand the date range within

which the crimes were alleged to have occurred. We are not

persuaded by either argument and therefore affirm the judgments.

1. Prior bad acts. a. Background. Six of the counts

were charged on divers dates from October 23, 2013 to April 1,

2017, in Salisbury, and the three others were charged on a date

between April 1 and April 30, 2017, in Danvers.2 Between 2013

and 2017, the mother, the defendant, and the victim moved from

Massachusetts to Connecticut and then back to Massachusetts.

While living in Connecticut, they regularly returned to

Massachusetts for visits.

Before trial, the Commonwealth moved in limine to admit

evidence of uncharged conduct by the defendant against the

victim while in Connecticut. The defendant, in turn, moved in

limine to exclude that uncharged conduct from evidence.3 During

a hearing on the motions, the Commonwealth argued that the jury

should not be left with "a misunderstanding that things were not

happening in Connecticut when they were living there full time

and only happening in Mass[achusetts]," and that the victim

2 The Danvers indictments arose from an overnight trip the
defendant and victim took to a waterpark resort.

3 Both motions also addressed evidence of uncharged conduct
occurring in New Hampshire. That evidence is not at issue on
appeal.

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should not "be foreclosed from . . . even mentioning that things

were also happening at home during that time period." The judge

allowed the Commonwealth's motion to admit the Connecticut

conduct for the purpose of showing the nature of the

relationship and the state of mind of the defendant and victim.

The judge denied the defendant's motion to exclude such

evidence.

b. Discussion. On appeal the defendant argues that the

judge's rulings were an abuse of discretion. The defendant also

challenges the admission at trial of additional bad acts

evidence not addressed by the motions in limine or otherwise

objected to at trial. We consider these arguments in turn.

We review the admission of the Connecticut conduct

addressed in the motions for prejudicial error. The

determination whether to admit such evidence is "committed to

the sound discretion of the trial judge and will not be

disturbed by a reviewing court absent 'palpable error.'"

Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting

Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). The question

is not whether we would have made the same decision, but instead

whether the judge made a "clear error of judgment in weighing

the factors relevant to the decision such that the decision

falls outside the range of reasonable alternatives" (quotation

3
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

Evidence of a defendant's prior bad acts is not admissible

to show "bad character or propensity" but may be admitted where

relevant for a nonpropensity purpose, such as to show "a common

scheme, pattern of operation, absence of accident or mistake,

identity, intent, or motive." Commonwealth v. Helfant, 398

Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2025).

Where a defendant is charged with sexual assault, "some evidence

of uncharged conduct may be admissible to give the jury a view

of the entire relationship between the defendant and the alleged

victim, and the probative existence of the same passion or

emotion at the time in issue" (quotation and citation omitted).

Commonwealth v. Dwyer, 448 Mass. 122, 128-129 (2006). However,

such evidence should not be admitted "if its probative value is

outweighed by the risk of unfair prejudice to the defendant."

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). See Mass.

G. Evid. § 404(b)(2).

i. Probative value. The defendant argues that the

Connecticut conduct was not probative. "To be sufficiently

probative the evidence must be connected with the facts of the

case or not be too remote in time." Commonwealth v. Barrett,

418 Mass. 788, 794 (1994). The evidence here met this

requirement, because the sexual abuse that occurred in

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Massachusetts continued in Connecticut (sexual touching in bed

and the shower), with the same victim, and within the same time

period as the charged conduct (October 2013 to April 2017). If

the jury were allowed to develop the misimpression that the

abuse reported by the victim somehow stopped at the Connecticut

border, it would leave an artificial gap in the victim's

testimony and could cause the jury to unfairly question her

credibility. See Commonwealth v. Childs, 94 Mass. App. Ct. 67,

72 (2018) (uncharged conduct particularly relevant to nature of

relationship where conduct was uncharged only because it

occurred in different county). See also Commonwealth v.

Nascimento-Depina, 496 Mass. 1, 3, 8-9 (2025) (evidence of prior

sexual assaults on child in Chelsea admissible in prosecution of

same defendant for assaulting same victim in Taunton).

The defendant next argues that testimony describing charged

conduct was sufficient to show the nature of the relationship,

so that introducing uncharged conduct was not necessary. But

this argument fails, as "[i]t 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." Commonwealth v.

Oberle, 476 Mass. 539, 551 n.7 (2017), citing Commonwealth v.

Copney, 468 Mass. 405, 413 (2014). See Mass. G. Evid. § 404(b)

note.

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ii. Unfair prejudice. The defendant also argues that the

Connecticut conduct was unfairly prejudicial. First, he

contends that, as in Dwyer, 448 Mass. at 127-130, the prior bad

act evidence was so voluminous that it overwhelmed the case. We

are unpersuaded.

In Dwyer, the defendant was charged with two incidents of

sexual abuse, yet the victim testified in detail about seven

different incidents of uncharged abuse. Dwyer, 448 Mass. at

128. Of the sixty-five transcript pages of the victim's direct

testimony, only fifteen pertained to charged conduct, whereas

twenty-one pertained to uncharged assaults. Id. Consequently,

the defendant's cross-examination of the victim was focused

primarily on discrediting her testimony concerning uncharged

conduct. Id. On appeal, the Supreme Judicial Court determined

that the defendant had "shown the requisite prejudice" and that

the judge should have intervened to prevent the bad act evidence

from overwhelming the case. Id. at 129. Here, in contrast, the

majority of the victim’s testimony on direct examination focused

on the charged conduct. The Commonwealth did not reference the

uncharged conduct in its closing. See Nascimento-Depina, 496

Mass. at 9 (risk of prejudice slight where, among other factors,

prosecutor's closing argument referred to bad acts evidence only

briefly). The testimony of uncharged conduct did not overwhelm

this case.

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Second, the defendant asserts without further elaboration

that "[t]he limiting instruction was insufficient." We cannot

agree. The judge followed the favored practice of giving

"contemporaneous limiting instructions," Commonwealth v.

Facella, 478 Mass. 393, 402 (2017), and he repeated them in his

final charge. See Commonwealth v. Walker, 442 Mass. 185, 202

(2004) (risk of prejudice from prior bad act testimony

"sufficiently ameliorated by the judge's limiting instructions,

given immediately after the testimony and repeated during the

final instructions"). We presume the jury followed these

instructions. Commonwealth v. Donahue, 430 Mass. 710, 718

(2000). Any risk of unfair prejudice was thereby limited.

iii. Unobjected-to bad acts evidence. On appeal, the

defendant argues that testimony of uncharged conduct occurring

in Massachusetts was admitted at trial and caused him unfair

prejudice. That conduct was not addressed in the motions in

limine, which, as relevant here, addressed only the Connecticut

conduct. See note 2, supra. Further, the evidence of uncharged

Massachusetts conduct was not objected to, nor does the

defendant argue on appeal that its admission created a

substantial risk of miscarriage of justice. Thus, the issue is

not properly before us. Even if it were, for reasons similar to

those discussed above, we conclude that the evidence did not

create a substantial risk of miscarriage of justice. That is,

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we have no "serious doubt whether the result of the trial might

have been different had the [claimed] error not been made."

Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

The defendant also objects on appeal to evidence of another

instance of uncharged conduct, groping the victim under a

blanket while her mother was present in the room, which did

occur in Connecticut. But this evidence was not elicited by the

Commonwealth and thus was not addressed by the motions in

limine. Rather, the defendant elicited this testimony during

his cross-examination of the victim.4 Thus, because the

defendant's objection is unpreserved, and because on appeal he

does not argue that his own elicitation of this evidence created

a substantial risk of miscarriage of justice, the issue is not

properly before us. Even if it were, we conclude that there was

no such risk, particularly where the defendant made use of this

evidence in closing argument to suggest that the victim's story

was implausible.

2. Amendment of indictments. After the close of its case-

in-chief, the Commonwealth moved to amend the indictments as to

the Danvers counts (counts seven and nine) from "on a date

between April 1, 2017 to April 30, 2017" to "a date between

4 Neither motion by its terms sought a ruling on the
admissibility of any bad acts evidence the defendant might
offer, nor was that issue mentioned at the motion hearing.

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April 1, 2017 and June 30, 2017," to reflect the mother's

testimony that the incidents in Danvers occurred in May or June

of 2017. The judge heard argument and granted the

Commonwealth's motion, over the defendant's objection, and after

agreeing to give the jury an instruction, as discussed infra, to

prevent any unfair prejudice to the defendant. The defendant

now argues that the judge abused his discretion by allowing the

amendments.

"Upon his own motion or the written motion of either party,

a judge may allow amendment of the form of a complaint or

indictment if such amendment would not prejudice the defendant

or the Commonwealth." Mass. R. Crim. P. 4 (d), 378 Mass. 849

(1979). "The power of the court to allow amendment to an

indictment also has constitutional constraints." Commonwealth

v. Knight, 437 Mass. 487, 492 (2002). Under art. 12 of the

Declaration of Rights of the Massachusetts Constitution, "no one

may be convicted of a crime punishable by a term in the State

prison without first being indicted for that crime by a grand

jury." Commonwealth v. Barbosa, 421 Mass. 547, 549 (1995). "An

amendment that 'materially changes the work of the grand jury'

interferes with that right" (citation omitted). Knight, 437

Mass. at 492. Thus, we consider whether the amendment

(1) addressed a matter of substance rather than form,

(2) unfairly prejudiced the defendant, or (3) materially changed

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the work of the grand jury. Id. at 492-494. We answer all

three questions in the negative.

First, the amendment was one of form. "Matters of form are

those that are 'not essential to the description of the crime

charged'" (citation omitted). Knight, 437 Mass. at 492. Date

and time are not elements of rape of a child or indecent assault

and battery on a person under fourteen. See Commonwealth v.

Lawton, 82 Mass. App. Ct. 528, 532 n.4 (2012); Commonwealth v.

Miozza, 67 Mass. App. Ct. 567, 573 (2006). Thus the dates of

those offenses need not be alleged in an indictment. See G. L.

c. 277, § 20. Further, "if an acquittal on the original charge

would not bar prosecution on the amended charge, the amendment

is one of substance." Commonwealth v. Bynoe, 49 Mass. App. Ct.

687, 691 (2000), citing Commonwealth v. Snow, 269 Mass. 598,

609-610 (1930). Here, however, if the defendant were acquitted

on the original charges (alleging conduct in April 2017), no

prosecution could have occurred on the amended indictments

(alleging conduct between April and June 2017), because they

would include an overlapping period of time, the month of April

2017. Thus, the amendment is one of form.

Second, the defendant was not unfairly prejudiced by the

amendment. The defendant erroneously argues that the judge

failed to consider this issue. To the contrary, the judge heard

argument on prejudice from both parties before granting the

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motion. The defendant asserted that he would be prejudiced by

the amendments because, had he known of them prior to trial, his

cross-examination of an investigating officer could have focused

on whether the officer had found any evidence corroborating the

defendant's presence in Danvers during the expanded time period.

To eliminate this prejudice, the judge agreed to, and did,

instruct the jury that "no corroborative records [relating to

any visit to Danvers] have been presented and that, therefore,

for the purposes of determining whether the Commonwealth has met

its burden of proof beyond a reasonable doubt as to counts

[seven] and [nine], they do not exist." Thus, any theories the

defendant could have pressed had he known of the amendments

earlier were still available to him during his closing argument

-- where, indeed, he pointed to the "lackluster investigation"

that "found absolutely nothing." In sum, the timing of the

amendments did not prejudice the defendant. See Donahue, 430

Mass. at 718 (jury presumed to follow judge's instructions).

Third, the amendment did not materially change the work of

the grand jury. The amendment altered only the dates, not an

essential element of counts seven and nine, as discussed above.

Cf. Commonwealth v. Roby, 462 Mass. 398, 405 (2012) (work of

grand jury not materially changed where only location of crime

was amended). Contrast Commonwealth v. Ruidiaz, 65 Mass. App.

Ct. 462, 463-464 (2006) (amending indictment to include "a

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person over sixty years of age" added essential element of

offense and materially changed work of grand jury). In sum, the

judge did not abuse his discretion in allowing the amendments.

We dispose summarily of the defendant's remaining argument:

that the judge, in his initial instructions, confused the jury

by mistakenly describing counts four and nine as alleging

indecent touching of the victim's buttocks (rather than her

breast). Yet, the jury were correctly informed regarding counts

four and nine when the clerk read them the indictments and then

again during the judge's final charge. Additionally, the

verdict slips correctly described counts four and nine as

alleging touchings of the breast, not the buttocks. The

defendant was not unfairly prejudiced by the judge's single

misstatement, where the jury were provided with the correct

information three times.

Judgments affirmed.

By the Court (Blake, C.J.,
Sacks & D'Angelo, JJ.5),

Clerk

Entered: August 8, 2025.

5 The panelists are listed in order of seniority.

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