Commonwealth v. Linenkemper

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23-P-601 Appeals Court

COMMONWEALTH vs. MATTHEW W. LINENKEMPER.

No. 23-P-601.

Middlesex. March 14, 2024. - July 19, 2024.

Present: Meade, Neyman, & Hand, JJ.

Assault and Battery. Assault and Battery by Means of a
Dangerous Weapon. Indecent Assault and Battery. Practice,
Criminal, Instructions to jury. Evidence, Prior
misconduct, Relevancy and materiality.

Complaints received and sworn to in the Marlborough
Division of the District Court Department on January 18 and 27,
2022.

The cases were tried before Meghan S. Spring, J.

Eric W. Ruben for the defendant.
Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.

NEYMAN, J. Following a trial in the District Court, a jury

found the defendant, Matthew W. Linenkemper, guilty of three

counts of assault and battery on a family or household member,

one count of assault and battery by means of a dangerous weapon,

and one count of indecent assault and battery on a person over
2

the age of fourteen.1 On appeal, the defendant contends that the

judge (1) provided erroneous instructions regarding prior bad

act evidence, and (2) abused her discretion in admitting such

evidence. We hold that a portion of the judge's prior bad act

instructions were incorrect, but the errors did not create a

substantial risk of a miscarriage of justice. Where we also

conclude that the judge acted within her discretion in admitting

the evidence challenged on appeal, we affirm the judgments.

Background. 1. Charged conduct. The defendant and the

victim had an "on and off" dating relationship between August of

2020 and January of 2022, and lived together much of that time.

The defendant's convictions stemmed from three incidents

occurring on three separate days. All three incidents involved

sudden changes in behavior by the defendant that rapidly

escalated into physical violence perpetrated against the victim.

In early January of 2021, while the victim was helping her young

son get ready for school, she yelled to the defendant multiple

times because she could not find her keys. The defendant "got

immediately angry," grabbed the victim's face, and squeezed her

nose "to the point where [she] started bleeding." On December

24, 2021, while driving together, the defendant "grabbed" the

1 The jury found the defendant not guilty of kidnapping,
witness intimidation, and a separate count of assault and
battery by means of a dangerous weapon.
3

victim by her ponytail, and "slammed [her] face down on the

shifter of the car."2 On January 9, 2022, while the defendant

and the victim "were in bed together" and viewing videos on the

victim's cell phone, the defendant became irritated and "grabbed

the phone out of [her] hand, and hit [her] in the face with it."

When the victim attempted to leave the bed, the defendant

grabbed her, "got on top of [her]," and twisted her breast while

stating that "he would show [her] what it's like to get fucked

really good."

2. Prior bad acts. Before trial, the Commonwealth moved

to introduce evidence of three prior bad acts of the defendant.

The Commonwealth argued that the evidence was relevant to show

the hostile nature of the relationship between the defendant and

the victim, to counter any claim of accident or mistake, and to

show a continuing pattern of behavior by the defendant. The

defendant objected on the basis that the evidence was not

"necessary," and that the risk of unfair prejudice outweighed

the probative value of the evidence. The judge ruled that she

would allow two of the prior bad acts to be admitted in evidence

but would exclude the third.3

2 The victim's testimony was corroborated, in part, by
photographs admitted in evidence depicting injuries caused by
the defendant.

3 The judge excluded a prior bad act from August of 2021,
involving an incident where the defendant allegedly spat on the
4

The first prior act involved an incident on December 25,

2020, during which the victim found the defendant's medication

on the floor of their home. In response, the defendant threw an

object at her and "punched the back of [her] head." Following

this portion of the victim's testimony, the judge provided a

comprehensive "cautionary instruction" describing the limited

purposes for which such evidence may and may not be considered.4

The defendant did not object to the content of the instruction.

victim and "whipped her with a sweatshirt." The judge found
that although this incident showed "the hostile relationship
between the parties," it was "too prejudicial" to admit in
evidence.

4 The judge instructed as follows:

"Ladies and gentlemen, allow me to give you a cautionary
instruction. The testimony that they're talking about
right now is about certain acts allegedly committed by the
defendant. The defendant is not charged with committing
any crimes other than the charges contained in the
complaints that have been read to you. You may not take
these acts as substitute for proof that the defendant
committed the crimes charged, nor may you consider them as
proof that the defendant has a criminal personality or bad
character. You may consider them solely on the limited
issue of motive, state of mind, intent, plan, or absence of
mistake or accident on the part of the defendant. You may
not consider this evidence for any other purpose.
Specifically, you may not use it to conclude that if the
defendant committed these acts, he must also have committed
the offenses with which he has been charged. It would be
extremely unfair to consider this evidence for those
purposes. For one thing, he has not been charged with
anything related to these acts; and moreover, these acts
have no relevance whatsoever with respect to the charges in
this case."
5

As to the second prior act, on a date between December 25,

2021, and early January 2022, the defendant told the victim to

accompany him to a pharmacy to pick up his medication. After

the victim ignored him, the defendant dragged her off the bed,

and, during the drive to the pharmacy, "grabbed" her hair.

Prior to this portion of the victim's testimony, the judge

provided another instruction delineating the limited purposes

for which such evidence may and may not be considered.5 Here

again, the defendant did not object to the content of the

instruction.

5 The judge again instructed as follows:

"Ladies and gentlemen, you are going to hear some other
evidence similar to that beforehand, so let me give you the
limiting instruction again. You are about to hear
testimony about certain acts allegedly committed by the
defendant. The defendant is not charged with committing
any of the crimes other than those contained in the
complaints that were read to you. You are not to take
these acts as a substitute of proof for the defendant
committing the crimes that are charged, nor may you
consider them as proof that the defendant has a criminal
personality or bad behavior; but you may consider the acts
solely on the limited issue of motive, state of mind,
intent, plan, or absence of mistake or accident on the part
of the defendant. You may not consider this evidence for
any other purpose. Specifically, you may not use it to
conclude that if the defendant committed these acts, he
must have also committed the offenses with which he has
been charged. It would be extremely unfair to consider
this evidence for those purposes. For one thing, he has
not been charged with anything related to these acts, and
moreover, those acts have no relevance whatsoever to the
charges in this case."
6

In her final jury charge, the judge provided a complete and

proper instruction on the limited purposes for which the jury

could consider the prior bad act evidence. The defendant did

not object to that instruction at trial and, as discussed below,

does not challenge the content of that instruction on appeal.

3. Defendant's case. Through cross-examination and

argument, the defense centered on the victim's credibility,

alleging inconsistencies in her testimony and reporting of the

incidents and citing to her delays or failures in reporting

certain incidents to law enforcement despite having the

opportunity to do so.6

Discussion. 1. Limiting instructions. The defendant

argues that the final sentences of the judge's contemporaneous

limiting instructions contained erroneous language.

Specifically, he contends that it was error to instruct the jury

that the prior bad acts "have no relevance whatsoever to the

charges in this case." See notes 4 and 5, supra. We agree.

We first note that the judge was cognizant of the limited

purposes for which the prior bad act evidence could be

considered and was conscientious in her efforts to ensure that

the jury did not misuse such evidence. Moreover, except for the

6 The defendant also called a digital forensics expert to
testify, in essence, that he could not discern the creation date
and time of two photographs provided by the victim to the
Commonwealth.
7

errors discussed below, the remainder of the limiting

instructions and the entirety of the final instruction on prior

bad act evidence comprised accurate statements of the law.

However, the disputed portion of the instructions -- the judge's

statements that the prior bad acts had "no relevance" -- were

incorrect statements of the law, although as we conclude infra,

they did not create a substantial risk of a miscarriage of

justice.

Evidence must be relevant to be admissible. Commonwealth

v. Vitello, 376 Mass. 426, 440 (1978). See Mass. G. Evid. § 402

note (2024), citing Commonwealth v. Seabrooks, 425 Mass. 507,

512 n.7 (1997) ("Unless relevant, evidence will not be admitted

because it does not make a fact in dispute more or less probable

than it would be without the evidence"). Although inadmissible

to show a defendant's bad character or propensity to commit the

crimes charged, evidence of a defendant's prior bad acts may be

admissible 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). Such

evidence, if relevant, "is admissible if its probative value

outweighs the risk of unfair prejudice" to the defendant.

Commonwealth v. Philbrook, 475 Mass. 20, 26 (2016).

In view of these fundamental legal principles, it is clear

that prior bad act evidence must be (as we conclude it was here)
8

relevant in order to be admitted. Therefore, the portions of

the contemporaneous instructions stating that those acts "have

no relevance whatsoever to the charges in this case" were error

and should not have been provided to a jury. See generally

Instruction 3.760 of the Criminal Model Jury Instructions for

Use in the District Court (2009).

Our determination of error does not end the analysis.

Where, as here, the defendant did not object to the erroneous

instructions at trial, we review to determine whether the errors

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no

such risk. The judge merely stated, albeit incorrectly, that

such evidence was not relevant. Apart from arguing that this

language was "confusing," the defendant fails to articulate how

it caused any prejudice. See Commonwealth v. Gladney, 34 Mass.

App. Ct. 151, 161 (1993) (noting that no "prejudice resulted"

from incorrect instruction). On our review of the entire

record, we discern no prejudice arising therefrom for various

reasons.

As noted above, the contemporaneous prior bad act

instructions were otherwise comprehensive and appropriate. See

Commonwealth v. Oberle, 476 Mass. 539, 550 (2017); Mass. G.

Evid. § 404(b)(2) (2024). But see Commonwealth v. Fernandes,

492 Mass. 469, 489 (2023), citing Commonwealth v. Samia, 492
9

Mass. 135, 148 n.8 (2023) ("it generally is insufficient

guidance for a trial judge simply to provide a collective list

of bad act evidence and then instruct on every possible

permissible purpose").7 Furthermore, as the defendant

acknowledged at oral argument, in the final jury charge the

judge provided an accurate prior bad act instruction that

omitted the erroneous language. This clear instruction

specified the limited purpose for which the jury could consider

such evidence and further mitigated any risk of prejudice. In

addition, "[a]lthough not critical to our result, we note that

the jury appear to have paid attention to the judge's warnings

about misuse of the evidence because they acquitted the

defendant" of other serious charges. Commonwealth v. Butler,

445 Mass. 568, 576 (2005). See note 1, supra, and note 9,

infra. Finally, the errors were limited to one sentence that

advised the jury that the defendant "has not been charged with

7 In Samia, 492 Mass. at 148 n.8, the Supreme Judicial Court
noted in connection with the admission of bad act evidence that
"[p]roffering a laundry list of nonpropensity purposes is not
helpful, nor is it proper. . . . Rather, counsel proffering bad
act evidence should articulate the precise nonpropensity purpose
for the proffered evidence, and the judge should instruct the
jury that they may consider the evidence only for that narrow
nonpropensity purpose." The court reiterated these principles
in Fernandes, 492 Mass. at 489. We note that the decisions in
Samia and Fernandes issued after the trial occurred in the
present case, and thus the judge did not have this guidance.
That notwithstanding, the correct practice is for the judge to
specify for the jury "the precise purposes for each piece of bad
act evidence admitted." Fernandes, supra.
10

anything related to" the prior acts, and that those acts "have

no relevance whatsoever to the charges in this case." As

mentioned above, the defendant makes no persuasive explanation

of prejudice. Indeed, instructing the jury that the prior acts

were not relevant to the charged conduct, if anything, inured to

the defendant's benefit. Accordingly, this is not a case where

"we have a serious doubt whether the result of the trial might

have been different had the error[s] not been made" (citation

omitted). Commonwealth v. Sherman, 481 Mass. 464, 476 (2019).

2. Prior bad act evidence. The defendant also contends

that the evidence of the defendant's uncharged conduct was

inadmissible because its prejudicial impact outweighed its

probative value. The claim is unavailing.

As discussed above, evidence of a defendant's prior bad

acts may be admissible to show a "common scheme, pattern of

operation, absence of accident or mistake, identity, intent,

motive, or state of mind" so long as "its probative value

outweighs the risk of unfair prejudice" to the defendant

(citation omitted). Philbrook, 475 Mass. at 26. Moreover,

"[i]t 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

defendant and the victim.'" Oberle, 476 Mass. at 550, quoting
11

Commonwealth v. Linton, 456 Mass. 534, 551 (2010). The

admissibility of bad act evidence "will largely depend on the

circumstances of each case, and admissibility is properly left

to the sound discretion of the trial judge." Butler, 445 Mass.

at 574-575.

Here, the evidence of the defendant's uncharged conduct was

relevant and properly admitted for the limited purpose of

showing the hostile nature of the relationship between the

victim and the defendant, as well as the defendant's intent.

See Oberle, 476 Mass. at 550. It also provided context for the

victim's delayed disclosures and allegedly inconsistent

statements, which were argued and placed at issue by the defense

from opening statement through cross-examination and closing

argument. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 72

(2018) ("Once the jury had knowledge that the victim alleged

this was part of an ongoing, continuous abusive relationship,

the victim's actions and reactions make logical sense").

In addition, the judge's repeated and comprehensive

instructions both during trial and in her final charge to the

jury clarified which of the incidents constituted uncharged

conduct, specified the limited purpose for which the jury was

permitted to consider that evidence, and mitigated any risk of

prejudice. See Commonwealth v. Bryant, 482 Mass. 731, 737

(2019) (jury presumed to follow limiting instructions on prior
12

bad act evidence).8 We also note that the judge exercised her

discretion to exclude one of the three prior bad acts proffered

by the Commonwealth. See Childs, 94 Mass. App. Ct. at 69 n.1.

Thus, viewing the judge's actions in full context, we cannot say

that she "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 and

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

n.27 (2014).9 Contrast Commonwealth v. Crayton, 470 Mass. 228,

252 (2014), cert. denied, 142 S. Ct. 151 (2021) (noting "the

unusual case where we conclude that it was an abuse of

discretion to admit the [bad act evidence], even with a limiting

instruction," where "probative value of the [evidence] was so

minimal with regard to the state of mind, knowledge, or intent

of the defendant, and because the risk of unfair prejudice was

so great" [quotation omitted]).

Judgments affirmed.

8 As discussed above, the errors in the judge's
contemporaneous prior bad act limiting instructions were not
prejudicial.

9 We reiterate that the jury acquitted the defendant of
kidnapping, witness intimidation, and one count of assault and
battery by means of a dangerous weapon, which may provide some
indication that the jurors were not unduly swayed by the
admission of such evidence. See Commonwealth v. Lassiter, 80
Mass. App. Ct. 125, 132 (2011); Commonwealth v. Sosnowski, 43
Mass. App. Ct. 367, 372 (1997).