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Commonwealth v. Casbohm

Appeals Court of Massachusetts, Middlesex

December 27, 2018

COMMONWEALTH
v.
TIMOTHY CASBOHM.

          Heard: September 5, 2018.

         Indictments found and returned in the Superior Court Department on September 18, 2014. The case was tried before Robert L. Ullmann, J.

          Jennifer Petersen for the defendant.

          Hallie White Speight, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Sullivan, & Desmond, JJ.

          HANLON, J.

         After a jury trial, the defendant was convicted on three indictments, charging aggravated rape of a child under the age of sixteen by means of sexual intercourse, that rape being aggravated by an age difference of more than ten years between them, G. L. c. 265, § 23A (indictment 1); posing and photographing a child under the age of eighteen in a state of nudity, "for the purpose of representation or reproduction in any visual material," G. L. c. 272, § 29A (a.) (indictment 6); and posing and photographing a child under the age of eighteen engaged in sexual conduct "for the purpose of representation or reproduction in any visual material," G. L. c. 272, § 29A (b) (indictment 7), [1], [2]

         The defendant appeals, arguing that (1) his separate convictions under G. L. c. 272, § 29A (a.) and (b) are "duplicative" and amount to a violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution; (2) the trial judge erred in failing to give the jury a specific unanimity instruction; and (3) the prosecutor's closing argument was improper, as the prosecutor vouched for the victim's credibility, misstated the facts and the law, and appealed to the passions of the jurors. We affirm.

         Background.

         The victim, Tatiana, [3] was born in Russia in 1997 and adopted when she was six years old. In the summer of 2013, at the time of the events at issue, Tatiana was fifteen and sixteen years old;[4] she had just graduated from the eighth grade, because she had repeated the third grade while she was learning English.

         Tatiana's mother thought that her daughter should do something constructive during the summer before she started high school, and so she agreed with a coworker, the defendant's wife, that Tatiana would work for the Casbohm family as a babysitter that summer. The Casbohms had three young children, aged six, two, and one years old, and Tatiana's mother agreed with Mrs. Casbohm that Tatiana would babysit for the three children three or four days a week. In so doing, Tatiana would be responsible for feeding the children, bathing them, changing diapers, playing with them, taking them to the park, and picking the oldest child up from school. She was not paid for this work. However, the Casbohms did give her a prepaid cellular telephone (cell phone) so that she could reach them in case of an emergency.[5]

         One day, before her sixteenth birthday, Tatiana had been cleaning the Casbohms' apartment and was watching television in the Casbohm parents' bedroom. The defendant came home and asked her to sit on the bed with him. He began to rub her back and her shoulders and she asked him why he was doing that; she asked him to stop, but he persisted. Eventually, the defendant began to remove Tatiana's clothing. He got on top of her and removed her underwear; she tried to push him away, but she couldn't because he was stronger than she was. He eventually succeeded in having vaginal intercourse with her. Afterwards, the defendant changed the sheets, told Tatiana to shower, and lit candles to remove the smell.[6] He warned her not to tell anyone what had happened because he "could get in trouble." By the end of the summer, the defendant was having sexual intercourse with Tatiana every day that she babysat for the Casbohm children.

         Tatiana testified that the defendant took photographs of her -- "[e]ither during sex or being naked on his bed" -- with his cell phone. She said that he repeatedly photographed her breasts[7] and her vagina and that, on one occasion, he videotaped her while she was taking a shower. The defendant also took measures he said were intended to ensure that Tatiana did not become pregnant, including shooting syringes filled with water into her vagina.

         On August 5, 2014, police officers searched the Casbohms' apartment after obtaining a search warrant. In all, the officers seized six cell phones, an Amazon Kindle electronic reader, a laptop computer, and syringes during the search. In particular, they found a cell phone belonging to the defendant in the room identified as "the parents' bedroom." On the defendant's seized cell phone, they found thousands of images and dozens of videos; additional images and videos had been deleted.[8]

         Discussion.

         1. Double jeopardy.

         The defendant was convicted of photographing, "with lascivious intent," a child under the age of eighteen "in a state of nudity" in violation of G. L. c. 272, § 29A (a.) .[9] He also was convicted of photographing a child under the age of eighteen engaging in "sexual conduct" in violation of G. L. c. 272, § 29A (b) .[10] The defendant now argues that these two convictions were "violative of double jeopardy principles," as they involved photographs all of the same child and all seized from one cell phone. That is, he contends that all of the photographs together constituted only one crime, essentially that of "(a.) . . . pos[ing] or . . . exhibit[ing] [a child] in a state of nudity . . . [or (b)] . . . engag[ing] in . . . sexual conduct . . . ." Compare G. L. c. 272, § 29B, prohibiting the dissemination of any visual material depicting a child in a state of nudity or engaged in sexual conduct, and G. L. c. 272, § 29C, prohibiting the "knowing[] purchase[] or possess[ion]" of such material. The defendant did not raise this issue at trial. However, "[e]ven if the issue was unpreserved, we will reverse a duplicative conviction. . . . Accordingly, we proceed to the merits of the defendant's double jeopardy claim." Commonwealth v. Traylor, 472 Mass. 260, 267 (2015).

         In support of his double jeopardy claim, the defendant cites Commonwealth v.Rollins, 470 Mass. 66 (2014), and Commonwealth v.Dingle, 73 Mass.App.Ct. 274 (2008) . Neither case assists him as each case addresses a different section of c. 272, and the facts are distinguishable. In Rollins, the court, interpreting G. L. c. 272, § 29C (vii), [11] concluded that the appropriate unit of prosecution for possessing child pornography was not each photograph in a large cache of photographs but, rather, the collection as a whole. "Accordingly, [the court] reject[ed] the Commonwealth's victim-based approach to determining the appropriate unit of prosecution for possession of child pornography, concluding instead that a conduct-based approach is more in keeping with the broad intent of the statute and the tiered punishment framework that it erects. . . . Thus, a defendant's possession of a single cache of one hundred offending photographs in the same place at the ...


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