Commonwealth v. Sullivan
82 Mass. App. Ct. 293
| Mass. App. Ct. | 2012Background
- Defendant Mark Sullivan was convicted of possession of child pornography and as a subsequent offense.
- Defendant challenged whether the printed photograph showed a lewd exhibition of the pubic area/breasts under §29C(vii).
- Librarian found Sullivan printing a naked-girl photo at the public library; he claimed it was a pop-up when confronted.
- Indictment drafted poorly but read as a whole was deemed sufficient to inform of the charged crime.
- Grand jury process challenged under O’Dell; the state presented the library’s conduct and Sullivan’s identity through the librarian’s findings.
- Trial court admitted other photographs Sullivan viewed, and juries were instructed on lewdness using Dost factors; court conducted independent review of lewdness as to the photographed image.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of indictment to charge §29C(vii) | Sullivan’s indictment failed to state the specific lewd-content element. | Caption and structure did not adequately describe the “lewd exhibition” element. | Indictment sufficient when read in full, including caption and repeat-offense portion. |
| Integrity of grand jury proceeding | Precedent requires dismissal if grand jury was impaired by prejudicial facts. | Evidence from library history improperly influenced the grand jury. | No O’Dell violation; evidence properly connected to identity and knowing possession. |
| Lewd exhibition standard under §29C(vii) | Photograph’s focus on breasts/pubis and the pose make it lewd. | Photograph was not a lewd exhibition; nudity alone not sufficient. | Independent review confirms lewd exhibition; image supports §29C(vii) conviction. |
| Dost factors applicability in possession case | Other images help prove defendant’s knowledge/intent. | Evidence of other photos prejudicial and irrelevant to the charged image. | Court did not abuse discretion; limiting instruction afforded and other photos contextualized intent. |
Key Cases Cited
- Commonwealth v. Fernandes, 430 Mass. 517 (1999) (indictment need not state every element; captions may illuminate body)
- Commonwealth v. Roby, 462 Mass. 398 (2012) (indictment clarity sufficient when read as a whole)
- Commonwealth v. Green, 399 Mass. 565 (1987) (captioned form may aid interpretation of indictment)
- Commonwealth v. O’Dell, 392 Mass. 445 (1984) (grand jury integrity; standard for impugning indictments via grand jury)
- Commonwealth v. Bean, 435 Mass. 708 (2002) (independent review of lewdness; Dost factors guiding analysis)
- United States v. Dost, 636 F. Supp. 828 (1986) (Dost factors as guideline for lewdness analysis)
- New York v. Ferber, 458 U.S. 747 (1982) (government interest in protecting children; lewd/obscene distinction)
- Commonwealth v. Kenney, 449 Mass. 840 (2007) (lewd exhibition statute; protections of children)
- Osborne v. Ohio, 495 U.S. 103 (1990) (mere nudity not enough to make image lewd)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (constitutionality of criminalizing possession where production exploits children)