989 N.E.2d 496
Mass.2013Background
- Bundy was convicted by a Superior Court jury in 2010 on an amended indictment charging him with posing or exhibiting a child in a state of sexual conduct under G. L. c. 272, § 29A(b), under the live performance theory.
- Victim was ten years old in 2008; Bundy and the victim used Xbox consoles with a vision camera and headset enabling private live chats.
- The live chats were broadcast via Internet to the defendant, who allegedly masturbated while the victim was also engaging in masturbation.
- Defendant did not testify; his nephew testified that the victim sometimes mooned Bundy but stated he saw no inappropriate behavior.
- The trial judge gave expanded definitions of “performance,” “masturbation,” and intent, and instructed that the victim’s consent was not an issue; the conviction and denial of a required finding of not guilty were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence suffices to prove a live performance under § 29A(b). | Latimore standard supports sufficiency of evidence. | No proven live performance occurred. | Evidence sufficient; conviction affirmed. |
| Whether the victim’s masturbation constitutes a ‘performance’ under the statute. | Act qualifies as ‘exhibit’ and ‘similar activity.’ | Act not analogous to play, dance, or exhibit. | Yes, constitutes a performance. |
| Whether expert testimony was necessary to explain Xbox operation. | Lay testimony plus evidence sufficed. | Expert needed for technical details. | No expert required. |
| Whether the defendant’s knowledge/intent elements were properly instructed. | Jury could consider all facts to infer intent. | Instructing specific vs. knowlingly-permitted creates error. | Instruction proper; not erroneous. |
Key Cases Cited
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) ( establishes standard for evidence sufficiency in competent fashion)
- Commonwealth v. Bean, 435 Mass. 708 (Mass. 2002) (statutory interpretation protecting minors from exploitation)
- Commonwealth v. Hall, 80 Mass. App. Ct. 317 (Mass. App. Ct. 2011) (notes technology-based reach of acts without physical presence)
- Ladd v. State, 715 So. 2d 1012 (Fla. Dist. Ct. App. 1998) (discusses audience concept for ‘performance’)
- Alcorn v. Commonwealth, 910 S.W.2d 716 (Ky. Ct. App. 1995) (audience may consist of one person in some jurisdictions)