9 N.E.3d 276
Mass.2014Background
- In May 2006 an undercover deputy (posing as a 13‑year‑old girl, “melissaqtl995”) engaged in multiple instant‑message conversations with the defendant (screen name “redline_5k”), during which the defendant discussed sex with the purported child and arranged a meeting that night.
- The defendant drove toward the arranged meeting, received two phone calls while en route, and was arrested in the parking lot of a video‑game store; police found handwritten directions and an unopened condom in his truck.
- Police copied and forensically examined the defendant’s computer with his consent; fragments of the instant messages and photos of the undercover officer (age 13) were recovered; a later supplemental forensic review produced other online sexual conversations and nude images sent by the defendant to other young interlocutors.
- The defendant was convicted by a Superior Court jury of enticement of a child (G. L. c. 265, § 26C) and four counts of attempted offenses (under G. L. c. 274, § 6) — attempted rape of a child, attempted indecent assault and battery on a child, and two attempted dissemination counts (G. L. c. 272, § 28).
- On appeal the defendant argued (1) insufficient evidence of an overt act for the attempt convictions, (2) instant messages are not “matter” under the dissemination statute as written in 2006, (3) suppression/exclusion of computer evidence was required, and (4) the Commonwealth failed to prove predisposition to rebut entrapment.
- The Supreme Judicial Court affirmed the enticement conviction but reversed and set aside the attempted‑offense convictions and the attempted dissemination convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of overt act for attempted rape/indecent assault | Defendant planned time/place, spoke directly with purported victim, traveled toward meeting and was at a place/time able to carry out the crime | Actions remained too remote; hesitations and unfinished steps meant no "present ability" to consummate the crime | Reversed attempt convictions — overt act insufficient (gap too large; commission still uncertain) |
| Whether instant messages are “matter” under G. L. c. 272, § 28 (2006) | Online conversations should count as "matter" and support dissemination convictions | Instant messages are not encompassed by the statutory term "matter" as interpreted pre‑2010 amendment | Reversed attempted dissemination convictions — Zubiel controls: pre‑2010 "matter" did not include electronic text |
| Validity/scope of forensic search and use of computer evidence | Search was valid: defendant consented; supplemental forensic review permissible; photos/conversations admissible to rebut entrapment | Some recovered material exceeded original warrant/scope and should be suppressed | Search and supplemental examination upheld based on voluntary, unconstrained consent; evidence admissible to rebut entrapment |
| Admission of prior acts and photographs to rebut entrapment | Prior online conversations and nude images show predisposition and are admissible to rebut entrapment | Admission violated prior stipulation and was unfairly prejudicial | Admission permissible: stipulation vacated as improvident once entrapment raised; prior acts and photos probative of predisposition |
Key Cases Cited
- Commonwealth v. Bell, 455 Mass. 408 (discusses overt‑act proximity requirement for attempt)
- Commonwealth v. Kennedy, 170 Mass. 18 (historical discussion of attempt law)
- Commonwealth v. Peaslee, 177 Mass. 267 (Holmes opinions on attempt — proximity standard)
- Commonwealth v. Zubiel, 456 Mass. 27 (held pre‑2010 "matter" did not include electronic text for § 28 prosecutions)
- Commonwealth v. Disler, 451 Mass. 216 (defines enticement of a child and confirms solicitation by IMs can constitute enticement)
- Commonwealth v. Marzilli, 457 Mass. 64 (recitation of attempt statutory elements)
- Commonwealth v. Latimore, 378 Mass. 671 (standard for reviewing sufficiency of evidence)
- Commonwealth v. Vargas, 417 Mass. 792 (prior bad acts admissible to show predisposition when entrapment is asserted)