Supreme Judicial Court of Massachusetts, Berkshire
Heard: April 2, 2019.
found and returned in the Superior Court Department on June
17, 2015. The cases were tried before John A. Agostini, J.,
and motions for postconviction relief were heard by him.
Supreme Judicial Court granted an application for direct
M. Kempthorne, Assistant District Attorney, for the
A. Dolberg, Committee for Public Counsel Services, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
defendant, Sam C. Wassilie, was convicted on ten indictments
charging him with secretly videotaping, with his cellular
telephone (cell phone), unsuspecting individual adults who
were nude or partially nude, in violation of G. L. c. 272,
§ 105 (b), first par. (paragraph one),  He also was
convicted on five indictments charging violation of G. L. c.
272, § 105 (b), third par. (paragraph three), for
secretly videotaping children during the same incident.
parties cross-appealed. The defendant argues that the judge
erred when he upheld the defendant's convictions under
paragraph one of the statute, ruling that the proper unit of
prosecution was the individual victim rather than the
episodes of videotaping. The Commonwealth challenges the
judge's posttrial decision declaring that paragraph three
of the statute was unconstitutionally vague and vacating the
defendant's convictions of videotaping the children.
conclude that the proper unit of prosecution under § 105
(b), first par., is based on the individual victims. We also
conclude that § 105(b), third par., is not
unconstitutionally vague. However, because the judge did not
include certain language from paragraph three in the
instruction to the jury on the charges of videotaping the
children, we remand three of the five indictments for a new
briefly recite the facts that the jury could have found at
trial. The defendant was arrested in New York for using his
cell phone to record people secretly in a public bathroom in
New York. New York authorities secured a search warrant and
discovered two recordings on the defendant's laptop, each
approximately twenty minutes long that showed individuals
using a different bathroom. After some investigation, police
deduced that the bathroom was located in Massachusetts at a
recreational complex in Dalton.
trial, the evidence showed that the bathroom was a unisex,
one room bathroom, without any stalls. A Dalton police
officer testified that the bathroom was "just a toilet,
a sink, paper towels . . . [it was] an open bathroom."
At the beginning of each of the recordings, the defendant is
shown starting the recording, concealing the cell phone by
wrapping it in paper towels, and then placing it across from
the toilet on the floor. According to the officer, the
defendant "set up [the cell phone] directly across from
the toilet so you would have a clear view of the
toilet." In the first video, the defendant reentered the
bathroom after approximately twenty minutes, adjusted the
angle of the cell phone to a lower view, and restarted the
recording. The police officer agreed that the angle of the
recording device was positioned to capture images of
"the parts of the body under [a person's]
clothing." Both videos depict genitalia of children and
adults, male and female. One segment of the recording
captures an image under the skirt of a female child in a
cheerleading outfit. The recordings showed seventeen adults
and five juveniles, not all identifiable, nude or partially
nude, using the bathroom.
defendant was indicted on twenty-two counts of violating
§ 105 (b) . The jury convicted the defendant on a
total of fifteen indictments charging a violation of §
105 (b): ten charging a violation of paragraph one, and five
charging a violation of paragraph three. After trial, the
defendant filed a motion to vacate the judgments on all
indictments but one under paragraph one and to sentence him
only on that one indictment. He argued that the correct unit
of prosecution was the episode of videotaping, not each
individual victim who appeared in the recordings. In denying
that motion, the judge concluded that the proper unit of
prosecution under paragraph one was based on the individual
victims. The defendant also filed a motion for a required
finding of not guilty on the five indictments charging a
violation of paragraph three. In that motion, he argued that
the "upskirting language" in paragraph three,
forbidding surveillance "under or around" a
"child's clothing," was unconstitutionally
vague and ambiguous. After a hearing, the judge allowed that
motion, concluding that the upskirting language in paragraph
three made the statute unconstitutionally vague. He dismissed
the five indictments with prejudice.
Standard of review.
review the judge's decisions on the defendant's
postconviction motions for an abuse of discretion. See
Commonwealth v. Grassie, 476 Mass. 202, 214-215
(2017), S.C., 482 Mass. 1017 (2019). We review any
question of statutory interpretation de novo.
Commonwealth v. Wade, 475 Mass. 54, 60 (2016).
context, we discuss the history of § 105 (b). In its
original version, § 105 (b) consisted of a sole
paragraph that punished general "Peeping Tom"
voyeurism. See Commonwealth v. Robertson, 467 Mass.
371, 380 (2014); St. 2008, c. 451, § 149. At the time,
§ 105 (b) stated:
"Whoever willfully photographs, videotapes or
electronically surveils another person who is nude or
partially nude, with the intent to secretly conduct or hide
such activity, when the other person in such place and
circumstance would have a reasonable expectation of privacy
in not being so photographed, videotaped or electronically
surveilled, and without that person's knowledge and
consent, shall be punished by imprisonment in the house of
correction for not more than 2 1/2 years or by a fine of not
more than $5, 000, or by both such fine and
Robertson, 467 Mass. at 372-373, the defendant was
charged under § 105 (b) for videotaping surreptitiously
the clothed crotch areas of women seated across from him on
the Massachusetts Bay Transportation Authority (MBTA)
trolley. We reversed the denial of the defendant's motion
to dismiss and concluded that § 105 (b) did not apply to
photographing (or videotaping or electronically surveilling)
persons who are fully clothed and, in particular, did not
reach the type of upskirting that the defendant was charged
with attempting to accomplish on the MBTA. Id. at
response to our decision in Robertson, the
Legislature immediately amended § 105 (b) to insert two
additional paragraphs to address the type of conduct that
occurred in Robertson -- "namely, the
surreptitious photographing or videotaping of a person's
clothed private anatomy even when in public."
Commonwealth v. Nascimento, 91 Mass.App.Ct. 665, 666
(2017). See St. 2014, c. 43, § 2. Paragraph three, which
is the paragraph at issue in this case, states:
"Whoever willfully photographs, videotapes or
electronically surveils, with the intent to secretly conduct
or hide such activity, the sexual or other intimate parts of
a child under the age of [eighteen] under or around the
child's clothing to view or attempt to view the
child's sexual or other intimate parts when a reasonable
person would believe that the person's sexual or other
intimate parts would not be visible to the public shall be
punished . . . ." G. L. c. 272, § 105 (b), third
same time, the Legislature also inserted a definition of
"sexual or other intimate parts" as "human
genitals, buttocks, pubic area or female breast below a point
immediately above the tip of the areola, whether naked or
covered by clothing orundergarments"
(emphasis added) . G. L. ...