Opinion
17-P-401
03-14-2019
COMMONWEALTH v. SEAN P. STEVENS.
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
Following a bench trial in the District Court, the defendant was convicted of possession of child pornography in violation of G. L. c. 272, § 29C. On appeal, he contends that the judge erred in (1) denying his motions for a required finding of not guilty; (2) admitting in evidence an audio recording of his police interview that included denials of guilt in response to accusations; and (3) admitting in evidence allegedly inflammatory photographs and video recordings. For the reasons that follow, we affirm.
Discussion. 1. Sufficiency of the evidence. In reviewing the denial of a motion for required finding made at the close of the Commonwealth's case, we examine "whether the Commonwealth produced enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present." Commonwealth v. Hilton, 398 Mass. 63, 64 (1986). See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We bear in mind that guilt may be established by circumstantial evidence and that "the inferences a [fact finder] may draw from the evidence need only be reasonable and possible and need not be necessary or inescapable" (quotation omitted). Commonwealth v. Linton, 456 Mass. 534, 544 (2010).
To obtain a conviction of possession of child pornography, the Commonwealth was required to prove, beyond a reasonable doubt, that the defendant "(1) knowingly possessed a photograph or other similar visual reproduction or depiction by computer; (2) depicting a child that the defendant knew or reasonably should have known was under the age of eighteen; (3) in a pose of a lewd or sexual nature as defined in the statute; and (4) with knowledge of the nature or content of the material." Commonwealth v. Hall, 80 Mass. App. Ct. 317, 327 (2011). See G. L. c. 272, § 29C.
At trial, there was no dispute that the police recovered materials inside the defendant's apartment that contained images and video recordings meeting the statutory definition of child pornography. Rather, this case turned on whether the defendant knowingly possessed the offending material. Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to establish that the defendant constructively possessed child pornography. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984) (constructive possession implies "knowledge coupled with the ability and intention to exercise dominion and control").
On appeal, the defendant argues that the evidence merely placed him in the "same physical area" where the contraband was found and that others had access to that area. Yet the "physical area" consisted of the defendant's one-bedroom home; he did not merely happen to be in the presence of contraband. See Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 680 n.9 (2006), and cases cited ("Residential status . . . indicates more than mere presence"). Additionally, the contraband was found in numerous areas within the apartment and on various devices, including digital video discs (DVDs), the hard drive of the defendant's computer, a flash drive, an iPod he claimed as his own, and the cell phone that he identified as his and directly handed over to the police.
The images of child pornography found on the defendant's hard drive were loaded on several different dates, all under the screen name "Sean Jazz 80," which contained the defendant's first name, year of birth, and the word "Jazz," which the defendant used in the title of several homemade video recordings. Numerous DVDs and printouts depicting child pornography were recovered from the defendant's bedroom. As to the cell phone that he handed over to the police, the defendant's e-mail address was associated with the cell phone and the defendant was designated on the account linked to Facebook. Three video recordings of child pornography were discovered on that cell phone. The volume of child pornographic images that were stored in places to which the defendant had ready access warranted an inference that the defendant possessed them. See Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 99-100 (2010). Cf. Commonwealth v. Nelson, 90 Mass. App. Ct. 594, 597-598 (2016) (rejecting argument that evidence showed only mere presence where defendant was in his residence at late hour seated on couch in very small room, where drugs and paraphernalia visible, and only defendant and girlfriend present).
A trier of fact could also infer knowledge from the defendant's behavior, in particular his focus on the workers from the cleaning service as they collected and stacked the DVDs. See Alicea v. Commonwealth, 410 Mass. 384, 387-388 (1991) (defendant's behavior could support inference that he knew something incriminating would be found). See also Brzezinski, 405 Mass. at 410. Similarly, the judge could infer from the defendant's actions of placing "printouts" back in the drawers and wrapping a necklace around the drawer knobs that he was trying to conceal contraband. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 782-783 (2009) (conduct of attempting to hide key to apartment where drug activity conducted permitted inference of consciousness of guilt). That there were others, in addition to the defendant, who may have had access to the apartment at the time the items were seized makes no difference as to the defendant's possession. See Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974); Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556-557 (1991).
The defendant's contention that the Commonwealth's case significantly deteriorated after it rested is likewise unavailing. See Kater v. Commonwealth, 421 Mass. 17, 20 (1995) (deterioration occurs if, after defendant's case, Commonwealth's prima facie case has been shown to be "incredible or conclusively incorrect"); Commonwealth v. Walker, 401 Mass. 338, 343-344 (1987) (deterioration does not occur simply because defendant presented evidence that contradicted Commonwealth's case). The defendant's testimony, supported by a sign-in sheet, to the effect that he was elsewhere at the time of a Skype session is not a fatal deterioration. Apart from the fact that there was corroborating evidence that the defendant did participate in this Skype chat, the judge was free to reject the defendant's account. See Walker, supra. In any event, the Skype chat had no bearing on the presence of child pornography found on the defendant's iPod and cell phone. The evidence was sufficient to allow the judge to infer the defendant's knowing possession of child pornography. Accordingly, the defendant's motion for a required finding of not guilty made at the close of all the evidence was properly denied.
2. Defendant's recorded police interview. The defendant contends that those portions of his recorded interview that constituted a denial of guilt were inadmissible. Because the defendant did not object to the admission of this evidence at trial, we review to determine whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
Though it is true that a defendant's unequivocal denial of a crime of which he is accused is not admissible, see Commonwealth v. Nawn, 394 Mass. 1, 4-5 (1985), the defendant's statements in the present case did not constitute unequivocal denials. Rather, the defendant repeatedly attempted to offer explanations as to how child pornographic material might be in his apartment without his knowledge. See Commonwealth v. McNulty, 458 Mass. 305, 329 n.23 (2010) ("defendant's statement set out a version of events that attempted to minimize his responsibility for the injuries that the victims sustained; it was not an unequivocal denial of guilt responding to police accusations"). Cf. Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 641 (2003) (statement "[i]t's not me" must be seen "as part and parcel of the defendant's more extensive dissembling statement").
Even were we to assume that the admission of the defendant's recorded interview was error, there was no substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 298; Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). In order to determine whether a substantial risk of miscarriage of justice resulted, we review "(1) whether the Commonwealth presented a strong case against the defendant; (2) whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [judge's] result might have been otherwise but for the error; and (3) whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision" (quotation omitted). Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 544 (2008).
Here, the evidence pointing to the defendant's knowledge of large amounts of child pornography found in his apartment and on his various personal electronic devices was strong. The child pornography was tied to screen names the defendant commonly used and was intermingled with items linked to the defendant. Images and video recordings had been loaded on numerous dates, including images on his cell phone the morning of the interview. Additionally, the statements in the recorded interview were cumulative of other evidence. See Commonwealth v. Womack, 457 Mass. 268, 275 (2010). Indeed, that there was material appearing to be child pornography in the defendant's apartment was independently testified to by a field operation manager for the cleaning service, a digital forensic examiner, and two police officers. See id. See also Commonwealth v. Emeny, 463 Mass. 138, 148-149 (2012) (accusation that defendant was in area of victim's house on day of murder cumulative of evidence presented at trial).
Moreover, the case was not tried to a jury, but rather to a judge, who is presumed to be aware of the law and to apply it accordingly. See Commonwealth v. Green, 52 Mass. App. Ct. 98, 102-103 (2001) (judge in jury-waived trial capable of avoiding impermissible cross-use of evidence); Commonwealth v. Colon, 33 Mass. App. Ct. 304, 307-308 (1992) (judge as trier of fact presumably applies correct legal principles). Finally, on this record, defense counsel may well have had tactical reasons for wanting the entire interview in evidence. The interview contained the defendant's immediate explanation for how a great volume of child pornography could have existed in his apartment without his knowledge. See Commonwealth v. Barbosa, 457 Mass. 773, 799 (2010) ("defendant's denials actually supported and were consistent with his defense that he was misidentified as a suspect"). In fact, in closing argument, defense counsel used the interview to support the theory that the defendant did not knowingly possess child pornography. We discern no substantial risk of a miscarriage of justice.
The closing argument provided in relevant part: "Mr. Stevens I would suggest has been forthright from the beginning. He allowed the Police to search his home. He allowed the Police . . . to search his home. He . . . volunteered for an interview. You -- the Court heard the interview. He was forthright, I would suggest that he was. And the one thing that he was adamant on was that he had never seen any of these images and he didn't participate in any of this."
3. Admission of still images and selected video clips. The defendant next argues that the judge abused his discretion by allowing the Commonwealth to introduce still images and video clips depicting child pornography. Specifically, he contends that the admission of unnecessarily cumulative and inflammatory evidence was error because any relevance it may have had was outweighed by its undue prejudice. Because the defendant did not object to the challenged evidence at trial, we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000).
"Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). The judge's determination of whether the evidence is relevant and more prejudicial than probative "will be upheld on appeal absent palpable error." Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998), quoting Commonwealth v. Valentin, 420 Mass. 263, 270 (1995). The Commonwealth is entitled to offer all probative and admissible evidence in proof of its case. See Commonwealth v. Martinez, 476 Mass. 186, 191-192 (2017); Commonwealth v. Ramos, 406 Mass. 397, 407 (1990).
Here, the police had gathered from the defendant's residence thousands of still and video images of child pornography contained on a computer hard drive, an iPod, a cell phone, a flashdrive, computer printouts, and DVDs. At trial, the Commonwealth provided the judge with a binder containing select images retrieved from the various devices and played several clips of video recordings downloaded on different dates and on different devices. Although the defendant conceded that at least one of the images constituted child pornography and only one count was charged, this did not require the Commonwealth to restrict the evidence of the crime. See Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999) (generally not error to allow Commonwealth to present evidence on issue defendant has stipulated). See also Commonwealth v. Rollins, 470 Mass. 66, 78-79 (2014) (Commonwealth free to charge possession of multiple images under single count of possession of child pornography on theory that "any of those images may be sufficient to support the conviction"). Indeed, the Commonwealth was still required to prove that the defendant knowingly possessed child pornography. Accordingly, we perceive no error, let alone a substantial risk of a miscarriage of justice, in the admission in evidence of the multiple still images and video clips.
In response to the judge's inquiry as to whether a video recording that was about to be played would qualify as child pornography, defense counsel stated, "If not this one, one of them."
Nor are we persuaded, as the defendant claims, that the judge was so inflamed by the nature of the images so as to deprive him of impartiality. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002) ("A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as a factfinder"). See also DeSouza, 428 Mass. at 670 ("[W]hether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge").
We note that the judge at trial appeared to be focused on the true issue in dispute: "[T]he issue isn't whether or not it's child pornography. The issue is obviously he's saying he had no knowledge."
Judgment affirmed.
By the Court (Vuono, Desmond & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 14, 2019.