125 N.E.3d 682
Mass.2019Background
- Defendant Sam C. Wassilie used a cell phone to secretly videotape people in a unisex, one-room public bathroom at a recreational complex; two ~20-minute videos captured 17 adults and 5 juveniles, including images up a child’s skirt and under shirts.
- He was indicted on 22 counts under G. L. c. 272, § 105(b); the jury convicted him on 15 counts (10 under paragraph one, 5 under paragraph three); Commonwealth nol-prossed 7 counts pretrial due to unidentified victims.
- After conviction, defendant moved to vacate all but one paragraph-one conviction arguing the unit of prosecution is the episode of recording (not each victim); the judge denied that motion.
- Defendant also moved for a required finding of not guilty on the five paragraph-three counts, arguing the statute’s “under or around” ("upskirting") language is unconstitutionally vague and inapplicable; the judge granted that motion and vacated those five convictions.
- The Appeals Court reviewed statutory interpretation de novo and postconviction rulings for abuse of discretion; it affirmed that the unit of prosecution is each victim, held paragraph three is not unconstitutionally vague, and remanded three of the five paragraph-three indictments for retrial because the jury instruction omitted the statutory “under or around” element.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Wassilie) | Held |
|---|---|---|---|
| Proper unit of prosecution under G. L. c. 272, § 105(b) | Statute targets victims; multiple victims may support multiple convictions | Single continuous recording episode should be one punishable unit; multiple convictions violate double jeopardy | Unit of prosecution is each individual victim; convictions based on separate victims are permissible |
| Vagueness of paragraph three (“under or around” child’s clothing) | Paragraph three is clear and constitutional; jury could have found elements if properly instructed | "Under or around" is vague and refers to upskirting; absent such conduct, convictions unsupported | Paragraph three is not unconstitutionally vague; "under or around" has plain meaning and fits legislative purpose |
| Jury instruction / required element for paragraph three | Jury should have been instructed on the specific element "under or around" so convictions could stand where evidence supports it | Judge removed/redacted "under or around," creating defective instruction and justifying acquittal | Omission of "under or around" from instruction was error; three paragraph-three convictions supported by evidence are remanded for retrial; two lack sufficient evidence and are dismissed |
| Application of rule of lenity / ambiguity as to unit | Statute not ambiguous; lenity inapplicable | Any ambiguity favors defendant; should limit to single punishment | Statute not ambiguous as to unit of prosecution; rule of lenity does not apply |
Key Cases Cited
- Commonwealth v. Robertson, 467 Mass. 371 (court limited § 105(b) as originally written and prompted legislative amendment)
- Commonwealth v. Rollins, 470 Mass. 66 (unit-of-prosecution analysis for child-porn possession focused on collection, not individual images)
- Commonwealth v. Dykens, 473 Mass. 635 (discussion of unit of prosecution principles)
- Commonwealth v. Traylor, 472 Mass. 260 (two-category framework for unit-of-prosecution analysis)
- Commonwealth v. Donovan, 395 Mass. 20 (single criminal scheme vs. multiple victim-based charges)
- Commonwealth v. Nascimento, 91 Mass. App. Ct. 665 (upskirting-type conduct falls within amended § 105(b) where reasonable expectation of privacy exists)