Opinion
20-P-764
05-28-2021
COMMONWEALTH v. Walter CRAYTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of possession of child pornography. The conviction stemmed from the defendant's viewing of child pornography on a public library computer (computer no. two) on January 21, 2009. On appeal the defendant argues that the trial judge abused his discretion by admitting certain items of evidence collected from computer no. two and that the judge committed various errors in his jury instructions. We affirm.
After a subsequent jury-waived trial, a judge found the defendant guilty of the subsequent offense portion of the indictment, which is not at issue in this appeal.
This case has been on appeal twice before. See Commonwealth v. Crayton, 470 Mass. 228 (2014) ; Commonwealth v. Crayton, 93 Mass. App. Ct. 251 (2018).
1. Evidentiary rulings. a. Other bad acts. At trial the Commonwealth introduced in evidence six videos downloaded to computer no. two on January 21, 2009, which formed the basis of the child pornography charge. The Commonwealth also introduced evidence of search terms entered on computer no. two's internet browser and websites visited via computer no. two before and around the times that the videos were downloaded. The searches included the word "Lolita," which, according to expert testimony, was a term associated with child pornography. The website titles and descriptions were explicit and also included the word "Lolita," as well as phrases such as "kiddy kingdom" and "kiddy porn." The defendant argues that the judge erred by admitting this other evidence of bad acts. We disagree.
The evidence consisted of twenty-one searches and thirty-eight websites visited between 3:08 and 3:55 p.m. on January 21. The six videos were downloaded at individual times between 3:43 and 3:54 p.m.
Although other bad acts evidence "is inadmissible to demonstrate bad character or propensity to commit the crime charged," such evidence may be admitted for another relevant purpose. Commonwealth v. Walker, 442 Mass. 185, 202 (2004). Even if relevant for a nonpropensity purpose, however, " ‘other bad acts’ evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014) (Crayton I ). We review the judge's decision for an abuse of discretion. See Commonwealth v. Veiovis, 477 Mass. 472, 482 (2017).
The judge acted within his discretion when he admitted the search term and website evidence after conducting the appropriate weighing analysis. The evidence was probative generally of the defendant's knowledge and intent. See Commonwealth v. Vera, 88 Mass. App. Ct. 313, 320-321 (2015). In addition, the evidence was plainly relevant to establish the timeframe and sequence of events leading up to and surrounding the downloads of the six videos. See Commonwealth v. Drew, 397 Mass. 65, 79 (1986) ("The prosecutor was entitled to present as full a picture as possible of the events surrounding the incident itself"). It was also relevant to whether the individuals in the videos were under eighteen years of age, which, contrary to the defendant's assertion, was a contested issue at trial and argued by the defendant in his closing. See Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 309-310 (2012).
The defendant argues, relying on Crayton I, 470 Mass. at 250, that the evidence was not relevant for these purposes because he did not pursue a mistake defense. But although the nature of the defense is part of the weighing analysis, in the absence of a stipulation, the Commonwealth was still required to prove that the defendant knowingly possessed the child pornography. See Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 309-310 (2012). As the court explained in Crayton I, if there were "any reasonable possibility that a juror might have a reasonable doubt" that the defendant viewed the materials by mistake or accident, "the evidence that he possessed ... hand-drawn sketches [of young girls] in his cell more than ten months later would have been probative regarding his state of mind or intent." Crayton I, supra. No such reasonable possibility existed at the original trial, both because defense counsel disclaimed a mistake defense and because "the search inquiries found on computer no. two left no doubt that the person using that computer between 3:08 p.m. and 3:55 p.m. on January 21 was looking for child pornography." Id. In other words, the very evidence that the defendant now challenges served to establish state of mind and intent at the original trial, rendering the bad acts evidence at issue there (the hand-drawn sketches) cumulative and inadmissible.
Given these nonpropensity purposes, the judge permissibly concluded that the probative value of the evidence was not outweighed by the risk of unfair prejudice. See Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 58 (2015). See also Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) ("By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided"). We disagree with the defendant's contention that the amount of evidence admitted was excessive and overwhelmed the charged conduct. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 74-75 (2018). Furthermore, the judge "provided [two] limiting instruction[s] to the jury regarding the [other] bad act evidence when it was offered and again in his final charge, thus minimizing any prejudicial effect." Commonwealth v. Almeida, 479 Mass. 562, 569 (2018).
The defendant argued in his principal brief that the risk of prejudice was compounded by the judge's preliminary statement about the case. The defendant withdrew this argument in his reply brief, however.
b. Possibility of pop-ups. Relatedly, the defendant argues that the judge erred by admitting the titles and home pages of websites accessed on computer no. two because the evidence could have included "pop-ups" that the user did not seek out or view. The judge rejected the defendant's argument, concluding that, despite the possibility of pop-ups, the evidence was still relevant to the user's knowledge and intent, particularly where the user continued to search for and view the websites after seeing the initial search results. The judge did not abuse his discretion in so concluding. The defendant's argument that the user may not have sought out or viewed the pop-ups goes to the weight of the evidence, which the defendant explored in his closing.
c. Thumbnail images. The defendant next argues that the judge erred by admitting "thumbnail" images, small graphics that corresponded to the videos found on computer no. two. We disagree. A detective explained that the thumbnail images would be visible to a user who opened a folder containing the video files, even if the user did not actually view the videos. The images were therefore probative of the user's knowledge of the content of the videos. Furthermore, the admission of this evidence did not unduly prejudice the defendant, given that the jury viewed the videos themselves, which were "significantly more inflammatory and graphic" than the still images. Vera, 88 Mass. App. Ct. at 322. Cf. Commonwealth v. Brown, 477 Mass. 805, 820-821 (2017) ("Because both guns were introduced in evidence, the prejudicial impact of the photographs [showing the defendant brandishing his gun] was minimal").
d. MySpace page. The defendant's final evidentiary challenge is that the judge erred by admitting evidence of a MySpace page that was accessed via computer no. two at 3:13 P.M. on January 21, 2009, and which contained the greeting "Hello, walter!" and a reference to an email address similar to the defendant's. Specifically, the defendant argues that the Commonwealth failed to authenticate the MySpace page as belonging to him. Although "the basic principles of authentication" generally apply to emails and other forms of electronic communications, Commonwealth v. Purdy, 459 Mass. 442, 450 (2011), the defendant's argument fails because the Commonwealth did not seek to introduce any communication from the MySpace page -- such as messages, photograph captions, or posts -- that would require authentication of authorship prior to its admission. Cf. id. at 447. Instead, much like personal papers bearing a defendant's name found near contraband, see e.g. Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 913 (1986), that a user accessed a MySpace page with a "Hello, walter!" greeting was simply circumstantial evidence that the defendant was the individual using computer no. 2 when the videos were downloaded.
A detective testified that he located the MySpace page in the temporary internet files folder of computer no. 2 during his forensic examination of the hard drive. He further testified that the MySpace page was visited at 3:13 P.M. on January 21, 2009. This was sufficient to establish that the Myspace page was viewed on computer no. 2 during the critical time period; no further authentication was required.
Even assuming the Commonwealth had to authenticate the MySpace page as the defendant's, we conclude that it met that burden. The MySpace page contained the defendant's first name and an email address similar to his, and there was evidence that the defendant was using computer no. 2 when the Myspace page was visited. This was sufficient to show by a preponderance of the evidence that the Myspace page belonged to the defendant.
2. Jury instructions. a. Right not to testify. During his preliminary instructions, the judge stated that "the defendant, like all defendants in every criminal case prosecuted in this country[,] is not required to present any evidence on his behalf and is under absolutely no obligation to testify himself in this trial. Okay. That's the right against self-incrimination." The defendant, who did not object at trial, claims that, by commenting on the "right against self-incrimination," the judge created the impression that the defendant would incriminate himself if he testified. We do not agree that the comment is susceptible to that reading. Furthermore, the judge gave several forceful instructions that the defendant had a right not to testify and that the jury were not to draw any negative inferences from his decision. We discern neither error nor a substantial risk of a miscarriage of justice.
b. Witness identification. A library employee, Ricardo Ricard, identified the defendant as a regular library visitor who often signed up for a computer with the letter W. Ricard did not identify the defendant as the individual who viewed child pornography on computer no. two on January 21, 2009. In his final charge, however, the judge stated that "Ricardo Ricard identified the defendant during his testimony. Where a witness has identified the defendant as the person who committed the alleged crime, you should examine the identification with care." The defendant, who did not object at trial, argues that this instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 203-204 (2008).
We agree with the defendant that the instruction was error insofar as it suggested that Ricard identified the defendant as the perpetrator of the crime. Viewing the charge as a whole, however, that suggestion did not create a substantial risk of a miscarriage of justice. See Ringgard, 71 Mass. App. Ct. at 204. The evidence and closing arguments were clear as to the extent of Ricard's identification. And when the judge instructed the jury about the identification after Ricard testified, he accurately described Ricard's testimony as "identif[ying] the defendant as the person he knew as W." The judge also instructed in his final charge that the jury were the sole and exclusive finders of the facts and that their memory of the evidence controlled. There was no substantial risk of a miscarriage of justice.
c. Virtual pornography. Finally, the defendant argues that reversal is required because the judge failed to instruct the jury that the children depicted in the videos must be "real" as opposed to "virtual." Because the defendant did not raise this objection at trial, our review is limited to determining whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 15 (1999). We discern no such risk, even assuming, without deciding, that the judge was required to provide the additional explanation as the defendant contends. The Commonwealth acknowledged in its closing argument that it was "required to prove ... that the videos in question depicted real children under the age of [eighteen]." And whether the videos depicted real children was not a contested issue at trial or in serious doubt. See Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) ("whether a particular element of a crime was contested at trial is important to a determination whether a trial error resulted in a substantial risk of a miscarriage of justice"). Considering the purported error in context, we are satisfied that it did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 351 (2003).
In his reply brief, the defendant argues that cases such as Commonwealth v. Azar, 435 Mass. 675 (2002), and Commonwealth v. Mitchell, 95 Mass. App. Ct. 406 (2019), require us to determine whether it can be "ineluctably inferred" from the evidence that the children in the videos are real. But unlike in those cases, the judge here did not misstate an element of the offense or omit an element altogether. Rather, the judge correctly instructed the jury that the Commonwealth was required to prove "that the possessed item contained an image of a child under the age of [eighteen]" and that the "defendant knew or reasonably should have known that the child shown was under [eighteen]." The defendant's claim is not that this instruction was erroneous, but that it failed to flesh out the meaning of "child." This is different in kind from the errors at issue in Azar and Mitchell.
To the extent we have not specifically addressed any of the defendant's arguments, we have considered them and found them to be without merit.
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Judgment affirmed.