Commonwealth v. David Nadeau.

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-218

COMMONWEALTH

vs.

DAVID NADEAU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, David Nadeau, appeals from convictions,

after a jury trial in the Superior Court, of assault and battery

on a family or household member, G. L. c. 265, § 13M (a),

assault and battery by means of a dangerous weapon, G. L.

c. 265, § 15A (b), and possession of an electric stun gun, G. L.

c. 140, § 131J; 501 Code Mass. Regs. § 8.08(1).1 Concluding that

the victim's testimony concerning the defendant's abuse of her

1The conviction for possession of the stun gun was filed,
but without the defendant's consent or compliance with the
requirements of Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009).
Accordingly, that conviction is properly before us. See
Commonwealth v. Caetano, 470 Mass. 774, 777 (2015), rev'd on
other grounds, 577 U.S. 411 (2016). The defendant makes no
argument on appeal about the constitutionality of this charge,
and thus we do not address that question. Cf. Commonwealth v.
Shehadi, 105 Mass. App. Ct. 60, 70 n.2 (2024).
in West Virginia was relevant as it showed the increasingly

hostile nature of the relationship between the defendant and the

victim, we affirm.

1. Standard of review. "[E]vidence of prior bad acts 'is

not admissible to show a defendant's bad character or propensity

to commit the charged crime.'" Commonwealth v. Facella, 478

Mass. 393, 403 (2017), quoting Commonwealth v. Dwyer, 448 Mass.

122, 128 (2006). "Such evidence may, however, 'be admissible

for another purpose,' such as to prove 'motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.'" Commonwealth v. Peno, 485 Mass.

378, 385 (2020), quoting Mass. G. Evid. § 404(b)(2) (2020).

"[E]ven if offered for a permissible purpose, bad act

evidence nevertheless is inadmissible where 'its probative value

is outweighed by the risk of unfair prejudice to the defendant,

even if not substantially outweighed by that risk.'"

Commonwealth v. Correia, 492 Mass. 220, 228-229 (2023), quoting

Mass. G. Evid. § 404(b)(2) (2023). "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. Oberle, 476 Mass. 539, 550 (2017), quoting

Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007). "An error

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is not prejudicial if it did not influence the jury, or had but

very slight effect." Commonwealth v. White, 103 Mass. App. Ct.

655, 659 (2024), quoting Commonwealth v. Souza, 492 Mass. 615,

627 (2023).

2. Prior bad acts. The evidence of the conduct in West

Virginia served to show the escalating, violent nature of the

defendant and victim's relationship. See Commonwealth v.

Butler, 445 Mass. 568, 576 (2005) (prior bad act evidence

admissible to show "continuing animosity on the defendant's part

toward [the victim]"). The victim first explained how the

initially happy relationship changed in 2020 when the defendant

"turned into somebody that he wasn't," becoming verbally abusive

and controlling, including limiting her contact with her family.

The victim then explained that, while in West Virginia in August

2020, the defendant became angry with her and began "[p]ulling

out my hair, hitting me with a belt, [and] choking me with a

belt."2 Despite suffering bruises and lost hair, the victim

permitted the defendant to continue to live with her after he

separately returned to Massachusetts, a decision she regretted

by the time of trial.

2 The defendant was charged with this abuse in West Virginia
and pleaded guilty. The judge excluded any evidence of police
or court involvement and prohibited the prosecutor from
impeaching the defendant's credibility with certified
convictions related to the West Virginia incident.

3
The victim's testimony concerning the defendant's conduct

in West Virginia was particularly relevant as it provided

context to explain the victim's inaction following the

defendant's abuse of her during the September 2020 incident.3

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"). The short

time period between the West Virginia incident and the September

2020 incident and the similar course of conduct exhibited by the

defendant during each incident helped to explain what "could

have appeared to the jury as . . . essentially inexplicable

act[s] of violence." Commonwealth v. Gonsalves, 488 Mass. 827,

836 (2022), quoting Commonwealth v. Bryant, 482 Mass. 731, 735-

736 (2019). Likewise, this evidence supported the victim's

testimony that the sexual acts between her and the defendant

were involuntary. See Commonwealth v. Pillai, 445 Mass. 175,

183 (2005), quoting Commonwealth v. King, 387 Mass. 464, 472

(1982) ("evidence of the other offense would likely be

admissible not only to show a common pattern of conduct, but

3 After being physically abused by the defendant, the victim
remained in the car with him throughout the entirety of the
night, even when he was asleep.

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also 'to corroborate[] the victim's testimony' and 'render[] it

not improbable that the acts charged might have occurred'").

Moreover, the "uncharged conduct was supported only by the

victim's testimony, so the admission required no change in the

defense theory that [the victim] was fabricating the abuse."

Childs, 94 Mass. App. Ct. at 74. The challenged testimony made

up only a small portion of the victim's overall testimony,

amounting to less than ten total pages, and the defendant made

passing references to the incident on cross-examination,

covering just two pages.4 Cf. Dwyer, 448 Mass. at 128 ("The jury

heard more about uncharged sexual assaults than they did about

the crimes charged"). The incident was not too remote in time

as it occurred one month prior to September 2020 incident. See

Peno, 485 Mass. at 386, quoting Butler, 445 Mass. at 574 ("To be

sufficiently probative the evidence must be connected with the

facts of the case [and] not be too remote in time"). Finally,

"[t]he judge also provided a limiting instruction to the jury

regarding the prior bad act evidence when it was offered and

again in his final charge, thus minimizing any prejudicial

effect." Commonwealth v. Almeida, 479 Mass. 562, 569 (2018).

See Bryant, 482 Mass. at 737 (jury presumed to follow limiting

4 The victim's and defendant's total testimony amounted to
over ninety pages and forty pages, respectively.

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instructions on other bad act evidence). The judge acted within

her discretion in the admission of the defendant's prior bad

acts.

Judgments affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.5),

Clerk

Entered: March 31, 2025.

5 The panelists are listed in order of seniority.

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