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Commonwealth v. Mienkowski

Appeals Court of Massachusetts, Middlesex

June 8, 2017


          Heard: April 5, 2017.

         Indictments found and returned in the Superior Court Department on June 13, 2012.

         The 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 Commonwealth.

          Present: Milkey, Massing, & Desmond, JJ.

          MILKEY, J.

         A 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.


         We 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.

         The 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.[1]

         By the 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.[2] 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, [3] 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 text messages.

         However, 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.[4] 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.[5] 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.[6]

         When 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, [7] 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 defense.


         1. Sufficiency.

         The 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).

         The 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.

         The Legislature has defined "harmful to minors" as follows:

"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 ...

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