Heard: September 5, 2018.
found and returned in the Superior Court Department on
September 18, 2014. The case was tried before Robert L.
Jennifer Petersen for the defendant.
White Speight, Assistant District Attorney, for the
Present: Hanlon, Sullivan, & Desmond, JJ.
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),
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.
victim, Tatiana,  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; she had just graduated from the eighth
grade, because she had repeated the third grade while she was
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
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. 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
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 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.
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.
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.) . 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)
. 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
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),  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 ...