952 N.E.2d 951
Mass. App. Ct.2011Background
- Defendant appeals convictions for enticement of a child, posing a child in a state of nudity, and possession of child pornography.
- He moved for a required finding of not guilty on enticement, arguing insufficient proof of luring a child to a location for violation of enumerated statutes.
- The Commonwealth argues enticement can be proven by luring to any place and that electronic/digital evidence suffices to show intent to pose the child in nudity.
- Court upholds some convictions and reverses others: enticement conviction reversed; nudity and possession convictions affirmed.
- Facts show Mary, age 11, met defendant, visited his home for a puppy, and, during isolated encounters, he solicited underwear and nudity, while sending/receiving cell phone photographs and messages through unlocked access and control of devices.
- Evidence also showed defendant’s involvement with DSS visits, various cell phones, and continued attempts to obtain more explicit images; the police seized Mary’s and defendant’s phones, including messages and photos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is sufficient evidence of enticement to a location | Commonwealth argues enticement can be proven by luring to any place via digital means | Fecteau contends no evidence he enticed Mary to enter, exit, or remain in a location | Enticement requires luring to a specific location; insufficient evidence to prove location-based enticement |
| Whether enticement under §26C duplicates the nudity offense | Commonwealth asserts distinct statutory aims justify separate offenses | Fecteau argues potential duplicity with §29A(a) | Interpretation that preserves distinction; not duplicative given location-anchored enticement requirement |
| Sufficiency of evidence that defendant possessed child pornography | Commonwealth contends images sent to defendant’s phone count as possession | Images may not have been on his phone at seizure; challenge to scope of possession | Sufficient evidence that he possessed the images at some time, even if not on the phone at seizure |
| Plain error in admission of video image and confrontation rights regarding drug analysis certificate | State asserts no reversible error given overall evidence | Video image prejudiced defendant; confrontation rights violated by certificate | (Not explicitly resolved in this excerpt; dispositive rulings focus on enticement and possession) |
Key Cases Cited
- Perry v. Commonwealth, 438 Mass. 282 (Mass. 2002) (broadly includes digital images under visual material; depictions by computer treated broadly)
- Commonwealth v. Disler, 451 Mass. 216 (Mass. 2008) (enticing via Internet may require proof of intent beyond words to meet statute)
- Commonwealth v. Hinds, 437 Mass. 54 (Mass. 2002) (depiction by computer interpreted as modern technology; scope of computer images)
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (possession standard—control and power to use object suffices for possession)
- Commonwealth v. Harvard, 356 Mass. 452 (Mass. 1969) (possession can be momentary if control exists at contact)