Opinion
15-P-229
04-14-2016
COMMONWEALTH v. FRED F., a juvenile.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial in the Juvenile Court the juvenile was adjudicated delinquent on two counts of dissemination of matter that is harmful to a minor, G. L. c. 272, § 28, based on findings that he displayed two nude photographs of a fellow student on his cellular telephone to another student during their school's lunch hour. On appeal he asserts insufficiency of the evidence.
The juvenile was sentenced to one year of probation with related conditions including community service.
Background. The facts are undisputed. The evidence relating to the images was limited to testimony by the student who saw the two photographs and described them as "nude pictures of a fellow student," and to testimony by the assistant principal that this was a verbatim repetition of a previous out-of-court statement. Neither any additional description nor the photographs themselves were introduced in evidence.
The school's assistant principal testified at trial that he conducted a two-and-one-half-day investigation of the incident. He related an out-of-court conversation in which the student who saw the photographs described them as "two nude pictures of a fellow student." The assistant principal also testified that the juvenile informed him that he did have nude pictures on his telephone. There was no objection to this testimony.
The remaining evidence introduced by the Commonwealth related to the student's reaction to what he had seen: "Nudes. I didn't -- it just scarred [sic] me. It was my friend." He also stated that what he saw made him feel "[c]reepy," that he "didn't want to see that" because it made him look at his friend in a different way, and it was "awkward."
Discussion. General Laws c. 272, § 28, as appearing in St. 2011, c. 9, § 9, in relevant part requires dissemination of "matter harmful to minors" by a person "knowing it to be harmful to minors." The definition of "matter harmful to minors," set forth in G. L. c. 272, § 31, inserted by St. 1974, c. 430, § 12, states that the law's requirements are met:
"if [matter] is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors."We address these requirements in turn.
Obscenity. To qualify as obscene, material must satisfy three conditions:
"[I]f taken as a whole it (1) appeals to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed; (2) depicts or describes sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political or scientific value."G. L. c. 272, § 31, as amended by St. 1982, c. 603.
In this case we conclude that the evidence provides insufficient basis to satisfy these elements. The images were not placed in evidence and the only description concerning them was the student's reaction set forth above. Testimony with respect to fear, awkwardness, and discomfort (because the subject was a friend) did not permit an inference that a prurient interest was aroused. With respect to the second element, there was no evidence that the images portrayed any sexual conduct, much less that they did so "in a patently offensive way." Finally, while nude photographs, per se, do not necessarily have "serious literary, artistic, political or scientific value," it was the Commonwealth's burden to show that these photographs lacked all of those attributes; it proffered no evidence to do so.
The Commonwealth argues that there is "no suggestion in this case that the picture [sic] was intended to appeal to anything other than the minor's witness's prurient interests." We consider this a reversal of the appropriate burden of proof.
Alternative definition of "matter harmful to minors." We turn to the alternative definition of harmful material set forth in G. L. c. 272, § 31. The first element, requiring a description or representation of "nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors," has not been supported by the evidence for the reasons set forth above. As stated, nudity was the only of these attributes in evidence, and no evidence of prurient appeal was proffered. Evidence relating to the second requirement of § 31, that the material be "patently contrary" to prevailing standards among adults in the county where the material was displayed as suitable for display to minors, was lacking in two respects. On this record, no adult viewed the photographs at the time of the incident or any time thereafter, and no evidence of community standards was introduced. Finally, the Commonwealth was again required to demonstrate a lack of literary, artistic, political or scientific value, in this instance "for minors." As stated above, the Commonwealth introduced no evidence on this issue.
It is unclear from the statutory scheme whether there is a different standard to be applied in measuring the provision of literary, artistic, political, or scientific value to minors in § 31, rather than to adults as set forth in that section's definition of obscenity.
The elements needed to satisfy the statutory definition of "matter harmful to minors," either by reason of obscenity or under the alternative requirements of § 31, are listed in the conjunctive; the Commonwealth was required to provide sufficient evidence not just of one, but of all of the listed elements. Where the images themselves were neither in evidence nor described with any particularity, a fact the Commonwealth has conceded, there was no basis for the fact finder to conclude that the charges had been proved.
It is unnecessary to address the juvenile's additional argument that the evidence was also insufficient to support a finding of "dissemination."
Adjudications of delinquency reversed.
Findings set aside.
Judgment for the juvenile.
By the Court (Kafker, C.J., Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 14, 2016.