Heard: April 5, 2017.
found and returned in the Superior Court Department on June
cases were tried before Edward P. Liebensperger, J.
Rebecca A. Jacobstein, Committee for Public Counsel Services,
for the defendant.
Gabriel Pell, Assistant District Attorney, for the
Present: Milkey, Massing, & Desmond, JJ.
Superior Court jury convicted the defendant of two counts of
aggravated rape of a child, G. L. c. 265, c. § 23A, and
one count each of posing a child in a state of nudity, G. L.
c. 272, § 29A(a.), and of dissemination of matter
harmful to minors, G. L. c. 272, § 28. The victim, to
whom we shall refer using the pseudonym Beth, was thirteen
years old when the rapes occurred and fourteen years old at
the time of the incidents underlying the posing and
dissemination charges. On appeal, the defendant principally
targets the dissemination conviction, which was based on the
defendant's sending Beth a video recording (video) of
himself masturbating. He raises a wide variety of arguments
regarding that conviction, including that, as a matter of
law, someone cannot be convicted of disseminating "a
video of something that the [L]egislature has determined a
minor is permitted to see and do in person." He also
claims error regarding the extent to which the jury were
allowed to examine a cellular telephone (cell phone) that was
admitted in evidence (an argument that relates to all four
convictions). We affirm.
summarize the facts the jury could have found as follows,
reserving some facts for later discussion. During her fifth
and sixth grade years, Beth lived with her aunt and uncle in
New Hampshire. This was because Beth's mother was an
alcoholic and drug abuser. By the fall of 2010, the mother
had temporarily achieved sobriety, and Beth returned to live
with her in an apartment in Lowell. At this time, Beth had
just turned thirteen and was beginning seventh grade.
defendant, then twenty-three and unemployed, lived in a
neighboring apartment with his own mother. He and Beth began
"hanging out" when she was not in school, playing
video games and the like. The defendant protected Beth from
being beaten up by others, and she began spending all of her
free time with him. In fact, she came to believe she was in
love with him. Approximately six months after they met, the
defendant regularly began inserting his finger and tongue
into Beth's vagina. This was the basis of his two
aggravated rape convictions (with the age difference between
them being the aggravating factor). Beth also testified that
the defendant regularly inserted his penis into her vagina
and mouth, but the jury acquitted him of two separate counts
of aggravated rape based on such conduct.
end of Beth's seventh-grade year, her mother had
relapsed, and Beth was sent back to live with her aunt and
uncle in New Hampshire. Over the course of the summer, she
turned fourteen, and she began eighth grade in the fall. At
this point, Beth and the defendant lived in different States,
but they continued to communicate by cell phone, including
through text messages. Because the aunt was suspicious of
Beth's relationship with the defendant,  she periodically
looked through Beth's cell phone for text messages
between them. The aunt's efforts at surveillance were
thwarted by Beth's daily practice of deleting all such
the aunt finally was able to view a lengthy exchange of text
messages that took place between Beth and the defendant over
three days in December, 2011. She turned over the cell phone to
the Lowell police, and the text messages memorialized there
became key evidence at trial. These messages, which were
sexually explicit, provided direct corroboration of the
digital and oral rapes of which the defendant was convicted.
Two of the messages also were the basis of the other charges
that resulted in convictions. The dissemination charge was
based on the defendant's attaching to one of his text
messages a video -- shot at very close range --of him
masturbating. The charge for posing a child nude was
based on the defendant's inducing Beth to send him back a
photograph of her vagina. The defendant's efforts at such
inducement took many forms, including flattery, statements
that Beth owed him the photograph because he had sent her the
masturbation video, and jealousy-fueled badgering that
Beth's refusal to send him the requested photograph was
proof that she was having sex with others.
questioned by police about his relationship with Beth, the
defendant declaimed that she was a "slut" and a
"whore" who was making false allegations against
him. He denied that he had raped Beth, sent her the
masturbation video, or induced her to send him the photograph
in return. He admitted to having sent some of the text
messages in the December, 2011, exchange,  while suggesting
that the ones that were directly incriminating must have been
sent by someone borrowing his cell phone or fabricated by
Beth, the aunt, or the police. He did not testify at trial
but, through counsel, he continued to press a fabrication
defendant argues, inter alia, that the evidence was
insufficient to support the dissemination conviction. We
review the denial of a motion for a required finding of not
guilty to determine whether, in "viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378
Mass. 671, 677 (1979) (quotation omitted).
defendant concedes that there was sufficient evidence that he
sent the video to Beth, but asserts that there was
insufficient evidence that it qualified as "matter
harmful to minors, " or that he had specific knowledge
of this. We address these issues in turn.
Legislature has defined "harmful to minors" as
"matter is harmful to minors if it is obscene or, if
taken as a whole, it (1) describes or represents nudity,
sexual conduct or sexual excitement, so as to appeal
predominantly to the prurient interest of minors; (2) is
patently contrary to prevailing standards of adults in the
county where the offense was committed as to suitable
material for such minors; and ...