Opinion
No. 14–P–1249.
07-21-2016
COMMONWEALTH v. Richard G. BARKE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant, Richard G. Barke, was convicted of photographing a person who was nude in circumstances where the person had a reasonable expectation of privacy, in violation of G.L. c. 272, § 105(b ). The defendant subsequently filed a motion for a new trial, which was denied. On appeal from both his conviction and the denial of his new trial motion, the defendant claims that the trial judge erred in denying (1) his motion in limine seeking to exclude the photograph which was the basis of his conviction, (2) his motion for a required finding of not guilty, and (3) his motion for a new trial. We affirm.
Background. The jury could have found the following facts. After working together professionally, the defendant and the victim became romantically involved and dated from September, 2011, until December, 2011. The victim often visited the defendant at his house in Scituate. While visiting him, the victim regularly drank large quantities of alcohol, and she would sleep in the defendant's bed when spending the night.
The photograph which formed the basis of the defendant's conviction portrayed a close-up view of female genitals. The victim testified that she recognized herself as the subject of the photograph, in part, due to her grooming habits. At some point after taking the photograph but before their relationship ended, the defendant showed her this photograph on his camera. She was unaware that he had photographed her prior to seeing it. The victim testified that she did not permit the defendant to take that photograph of her and had told him that she was not comfortable with his taking nude photographs of her. The photograph in question was extracted from the defendant's cellular telephone (cell phone) by the Commonwealth's computer forensic examiner and presented at trial.
Discussion. 1. Motion in limine. The defendant claims that the judge erred in denying his motion in limine seeking to exclude the photograph at issue because it was not adequately authenticated. The admissibility of photographs is left to the discretion of the trial judge. Commonwealth v. Figueroa, 56 Mass.App.Ct. 641, 646 (2002). Photographs are adequately authenticated by “evidence sufficient to support a finding that the item is what the proponent claims it is.” Mass. G. Evid. § 901(a) (2016). The victim testified that the photograph depicted a close-up view of her genitals, and it also portrayed her particular grooming habits. She also testified that the defendant previously showed her that photograph. This evidence was sufficient to authenticate the photograph, and the trial judge did not abuse his discretion in denying the defendant's motion in limine.
2. Motion for required finding of not guilty. In assessing the defendant's claim that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence to convict him under G.L. c. 272, § 105(b ), we view the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The Commonwealth was required to prove the following five elements beyond a reasonable doubt:
“(1) the defendant willfully photographed, videotaped, or electronically surveilled; (2) the subject was another person who was nude or partially nude; (3) the defendant did so with the intent to secretly conduct or hide his photographing activity; (4) the defendant conducted such activity when the other person was in a place and circumstance where the person would have a reasonable expectation of privacy in not being ‘so photographed’; and (5) the defendant did so without the other person's knowledge or consent.”
Commonwealth v. Robertson, 467 Mass. 371, 375–376 (2014). See G.L. c. 272, § 105(b ).
Concerning the first two elements, the photograph at issue is a close-up of the victim's genitals. The victim testified that at some point after the defendant took the photograph, he showed it to her on his camera. Furthermore, the photograph was recovered from a search of the defendant's cell phone. Thus, there was sufficient evidence for the jury to find that the defendant wilfully photographed the victim while she was nude.
There was also sufficient evidence for the jury to draw the reasonable inference that the defendant intended to hide his photographing activity of the victim. See G.L. c. 272, § 105(b ). The victim testified several times that she was not aware that the defendant photographed her. The photograph in question was taken while she was asleep. Whether the defendant secretly conducted or hid his photographing activity is not obviated by the fact that he later showed the victim the photograph. To the contrary, a reasonable jury could have found that the defendant secretly photographed the victim because he photographed her intimate areas without her knowing.
With respect to the fourth element, the defendant argues that the defendant did not have a reasonable expectation of privacy in not being photographed. In this case, “not being so photographed” relates to the victim having a reasonable expectation of not being so photographed while she was nude in the defendant's bed. See G.L. c. 272, § 105(b ). This argument is unconvincing. The victim was asleep in a private, not a public, place and therefore had a reasonable expectation of not having her genitals so photographed. See Robertson, supra at 379–380.
The victim testified that she did not give permission to the defendant to photograph her while she was nude and was not aware when the defendant took the photograph at issue. Furthermore, she told the defendant that she was not comfortable with his taking nude photographs of her. Based on that testimony, the jury could reasonably conclude that the photograph was taken without the victim's knowledge or consent. In sum, there was sufficient evidence to support the defendant's conviction under G.L. c. 272, § 105(b ).
The jury were free to reject the defendant's theory that the victim implicitly consented to the defendant photographing her in the nude because of a prior course of conduct or because she had taken nude photographs in the past. Those photographs, with her breasts covered or sitting with her knees held up against her, were not comparable to the photograph at issue.
3. Ineffective assistance of counsel. The defendant contends that his motion for a new trial should have been granted because his trial counsel was ineffective for failing to file a motion to suppress the photograph at issue. We review the defendant's claim under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “When a defendant claims ineffective assistance of counsel for failure to move to suppress, he must ‘demonstrate a likelihood that the motion to suppress would have been successful.’ “ Commonwealth v. Jules, 464 Mass. 478, 489 (2013), quoting from Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The defendant claims that a motion to suppress would have been successful because the affidavit in support of the search warrant failed to establish a “nexus to the items to be searched, the place to be searched, or the timeliness of the search.”
“[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit.” Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (quotation omitted). Probable cause to search is established when “the facts contained in an affidavit, and reasonable inferences that may be drawn from them, [are] sufficient for the magistrate to conclude that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Walker, 438 Mass. 246, 249 (2002) (quotation omitted). We interpret search warrant affidavits in a “realistic and commonsense manner,” analyzing them “as a whole, not parsed, severed, and subjected to hypercritical analysis.” Commonwealth v. Anthony, 451 Mass. 59, 68 (2008) (quotation omitted). Moreover, “[a] reviewing court gives considerable deference to the magistrate's determination of probable cause.” Walker, supra.
The affidavit stated the following: during their relationship, the victim often stayed with the defendant in his house in Scituate. The defendant took nude photographs of the victim while she was in alcohol-induced blackouts, and later showed those pictures to her. Despite the victim's request that the defendant delete the photographs, she believed he never did. After the relationship ended, the defendant threatened to disseminate nude photographs of the victim, and he sent one of those photographs to the victim's friend via Facebook.
The affidavit sought to search various devices capable of storing digital media within the defendant's house. There was probable cause to believe that the defendant possessed nude photographs of the victim on a digital media storage device within his home because his threat to disseminate such photographs indicated he had them in his possession. He also showed a nude photograph of the victim, in his house, to her. Furthermore, the defendant sent nude photographs of the victim to the victim's friend over Facebook. Accordingly, the affidavit contained sufficient facts to establish probable cause for the search. See Anthony, supra at 70–72.
The affidavit specifically sought to search the following: “cell phones[,][c]omputers, external digital storage devices, ... hard drives, thumb drives, memory cards, digital cameras, writable digital compact discs [and] any media device that can be used to write, change, save, or update any computer generated data.”
Although the affidavit did not specify the type of device on which the defendant showed the victim the photograph in question, it was reasonable to infer that the photographs were stored on a digital device within the defendant's house.
Concerning the timeliness of the search, the defendant claims that because the photograph at issue was taken months prior to the search, the affidavit was untimely. We disagree. The affidavit was prepared on April 23, 2012. The victim reported the events described in the affidavit on April 20, 2012. The affidavit stated that the victim believed the defendant never deleted the photograph, “[e]specially now since he is threatening to show [the picture] to everyone [the defendant] knows” (emphasis added). Because the affidavit stated that the defendant was, at the time of the victim's report, threatening to disseminate the nude photographs of the victim, there were sufficient facts for the magistrate to conclude that there was probable cause to believe the defendant was in possession of the photograph at the time of the search. Accordingly, because there was no likelihood that a motion to suppress the photograph would have been successful, we reject the defendant's claim of ineffective assistance of counsel.
Judgment affirmed.
Order denying motion for new trial affirmed.