Opinion
18-P-554
09-16-2019
COMMONWEALTH v. Benjamin H. CLARK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in December, 2018, the defendant, Benjamin H. Clark, was convicted of one count of attempting to photograph an unsuspecting nude or partially nude person, G. L. c. 272, § 105 (b ). The defendant appeals from this conviction. We affirm.
Background. Based on the evidence, the jury could have found the following facts. On May 19, 2016, the victim, A.D., was shopping at The Green Room, a retail store on Martha's Vineyard. A.D. went into the dressing room to try on some clothing items. The dressing room had a curtain that was about eighteen inches above the ground. Under her clothing, A.D. was wearing only a bra and "thong-like underwear" that did not cover her buttocks. While in the dressing room, A.D. removed her bra, exposing her breasts. While wearing only her thong, she noticed a silver iPhone cellular telephone (hereinafter, iPhone or cell phone) with a clear or white case being held under the dressing room curtain so that it was in the dressing room, pointing up at her. The iPhone's back camera was facing A.D., so it appeared to her as though someone was taking a photograph or video recording (hereinafter, video) of her.
A.D. quickly dressed and left the dressing room in a panic. Outside the dressing room, she saw a man holding the same iPhone she had seen under the dressing room curtain, and the two made "extremely awkward eye contact." After paying for her items and telling the clerk what had happened, A.D. found her boyfriend, J.T., within the store and explained the incident. A.D. was "frantic"; she had red eyes and was "freaking out."
After going outside and returning to the store, A.D. and J.T. confronted the defendant, the man A.D. had seen holding the silver iPhone. The defendant appeared to be watching a video on his iPhone. The couple asked the defendant what he was watching, and, when he wouldn't show them, J.T. threatened to call the police. A.D. and J.T. were able to see A.D. in her thong in one video. They asked the defendant to delete the video, and when he did so, a second video automatically popped up. The second video was angled toward the ceiling and appeared to be a misfire. A.D. and J.T. asked the defendant to delete the second video as well, and a photograph of the defendant and his family automatically popped up, so they assumed that there were no more photographs or videos of A.D. on the cell phone. The defendant was nervous, frantic, and "shaky" throughout the whole encounter. After the defendant left the store, a store clerk called the police. A.D. was shaking and had been crying when a police officer arrived. She explained the incident to the officer. She did not tell the officer that she was nude or partially nude in one of the videos. J.T. also gave a statement to the police, but did not state that he saw A.D. nude or partially nude in the videos. The store clerk showed the police surveillance footage of the defendant taking photographs near the shoe display.
Through The Green Room's credit card records and Steamship Authority booking records, the police were able to identify the defendant, Benjamin Clark, and his wife. The police found an Edgartown address attached to the names, and visited the address, but no one was home. A neighbor later alerted the defendant's wife that the police were looking for the defendant, and he reported to the Vineyard Haven Police Department around 8 P.M. He was shown the surveillance footage from The Green Room. He also was questioned and subsequently arrested.
Discussion. 1. Denial of motion to dismiss. On September 5, 2017, the original complaint was amended to clarify that the Commonwealth was proceeding on the theory that the defendant "Photographed an Unsuspecting Nude Person" pursuant to G. L. c. 272, § 105 (b ), as opposed to an "upskirting" theory. On December 18, 2017, the judge approved a further amendment to the complaint so that it charged an attempt to commit a violation of § 105 (b ).
The first paragraph of G. L. c. 272, § 105 (b ), relates to willfully photographing, videotaping, or electronically surveilling a "nude or partially nude" person with the intent to secretly conduct or hide such activity, without that person's knowledge and consent, "when [that] person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped, or electronically surveilled." The second paragraph of G. L. c. 272, § 105 (b ), in contrast, relates to willfully, with the intent to secretly conduct or hide such activity, photographing, videotaping, or electronically surveilling "the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that person's sexual or other intimate parts would not be visible to the public[,]" without the person's knowledge and consent.
The defendant argues that the judge erred in denying his motion to dismiss for lack of probable cause because prior to trial, there was no evidence that A.D. was nude or partially nude in any photograph or video. See Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Probable cause in this setting requires "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 230 (2018), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Based on A.D.'s statement to police that she quickly dressed herself after she noticed a cell phone under the dressing room curtain, along with other evidence, the judge was warranted in finding that there was probable cause to believe that the defendant attempted to secretly photograph or video record A.D. in a state of partial nudity.
The defendant also argues that, prior to trial, the Commonwealth had not shown probable cause as to the specific intent element of an attempt case. See Commonwealth v. Foley, 24 Mass. App. Ct. 114, 117 n.5 (1987). See also Commonwealth v. Aldrich, 88 Mass. App. Ct. 113, 118-119 (2015). As a procedural matter, whether we view attempt as having been charged by amendment of the complaint or as a lesser included offense makes no difference. Either way, the evidence supported a reasonable inference regarding the defendant's specific intent to commit all elements of a violation of G. L. c. 272, § 105 (b ), first par., at both the pretrial and trial stages.
2. A.D. and J.T.'s testimony at trial. The defendant argues that he was unduly prejudiced by A.D.'s testimony at trial that she was partially nude in the video she watched on the defendant's cell phone and also J.T.'s testimony that he saw A.D.'s partially covered buttocks in the same video because this information was not revealed before trial. Prior to trial, J.T. told police that he saw the inside of the dressing room occupied by A.D. on the defendant's iPhone. A.D. told police that they asked the defendant to delete photographs on his iPhone. She did not specify what she saw in the photographs. Where the defendant did not object to either party's testimony at trial, the court reviews for a substantial risk of a miscarriage of justice. Commonwealth v. Coates, 89 Mass. App. Ct. 728, 737 (2016).
"[A]ny party at trial runs the risk that a witness's memory may lapse or his story may change when he is on the witness stand." Commonwealth v. Kater, 409 Mass. 433, 448 (1991). When a witness at trial testifies to facts that are materially different from what was contained in pretrial discovery, the defendant bears the burden of demonstrating prejudice. Commonwealth v. Caracino, 33 Mass. App. Ct. 787, 793 (1993). In this case, the defendant has failed to show how additional time to prepare for the cross-examination of these witnesses would have made any material difference. The defendant was put on notice the day the incident occurred that he and the victim had different accounts of what was recorded on the defendant's cell phone, and he was aware that A.D. felt her privacy had been violated. This was not a case of trial by ambush as the defendant contends. Contrast Commonwealth v. Eneh, 76 Mass. App. Ct. 672, 682 (2010). The defendant cross-examined both A.D. and J.T., highlighting inconsistencies between their police statements and testimony at trial to the jury, who are the ultimate judges of credibility. We discern no error in the judge's rulings regarding the testimony by A.D. and J.T.
3. Defense counsel's inquiry into J.T.'s pending criminal cases. The defendant argues that the judge abused his discretion in allowing the Commonwealth's motion to exclude evidence of J.T.'s pending criminal cases for impeachment or bias purposes. The question is whether such evidence was relevant or collateral to the issue of the witness's bias. See Commonwealth v. Haywood, 377 Mass. 755, 762-763 (1979).
Some of the sidebar discussion at trial was not recorded. To the extent that the inaudible portions of this sidebar were favorable to the defendant, it was the defendant's burden to reconstruct the record. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827 n.5 (2018). In this case, he did not do so.
J.T. incurred multiple criminal charges in the District Court in Edgartown after the May 29, 2016, incident at issue here. In order to claim a right to cross-examine a witness on his bias as a result of pending criminal charges against that witness, there must be a material change in the witness's testimony after his arrest. See Commonwealth v. Purcell, 423 Mass. 880, 883-884 (1996). Here, there was no abuse of the judge's discretion in allowing the Commonwealth's motion to exclude evidence of J.T.'s pending criminal charges because the defendant failed to establish that any material change in J.T.'s testimony had occurred after his arrest. See Commonwealth v. Roby, 462 Mass. 398, 412 (2012).
The Commonwealth is correct in pointing out that pages 134-135 of the defendant's record appendix are outside the record on appeal. We disregard those pages of the record appendix.
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4. Prosecutor's closing argument. The defendant contends that the prosecutor improperly inflamed the jurors' emotions and vouched for the credibility of the witnesses in his closing argument, and thus a new trial should be ordered. The defense objected to the prosecutor's argument at trial, so we review for prejudicial error. Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005).
The defense objected to the following portion of the prosecutor's closing argument where he stated, "I find it incredibly sad that the defense is ... using the defendant's family as a pawn in this trial, parading around his wife and -- how many numerous times does he make a reference to his daughter? That is so sad." The prosecutor went on to say that the defendant's marital status, job title, or the fact that he has a daughter had no bearing on whether or not a crime was committed, and he asked the jury to disregard that information. This portion of the argument was in response to defense counsel's closing argument where he stated, "You cannot turn a man into a criminal after [forty-five] years of civility, honesty, fiduciary behavior, integrity, child rearing, for a fraction of a second. You can't do it, I'd suggest. You have the power, but it wouldn't be right."
In evaluating whether an argument was improper, we consider "the remarks ‘in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.’ " Gaynor, 443 Mass. at 273, quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). A prosecutor may base an argument "on the evidence and the fair inferences to be drawn from the evidence." Commonwealth v. Bradshaw, 385 Mass. 244, 271 (1982). A prosecutor may also characterize a defendant's story and respond to assertions made in defense counsel's closing arguments, as long as the prosecutor's remarks are based on evidence heard by the jury.
Where defense counsel repeatedly referred to the fact that the defendant was a father, husband, and successful businessman with no criminal record, the prosecutor had a right to characterize the argument as "sad" and point out that these factors had no bearing on whether or not a crime was committed. See Commonwealth v. Cameron, 385 Mass. 660, 669-670 (1982). Moreover, the judge specifically instructed the jury that closing arguments are not evidence, and the jury should not treat them as so. See Commonwealth v. Espada, 450 Mass. 687, 699 (2008). The defendant's remaining arguments concerning the prosecutor's closing (improper vouching and denial of the right to a public trial) are without merit and require no further discussion.
5. Voir dire questions. Prior to trial, the defendant requested a series of questions that the judge should ask potential jurors that were designed to identify any bias that people may have based on media attention to celebrities accused of workplace sexual violence or harassment. However, during individual voir dire of jurors, the defendant did not seek to have any of these questions asked, made no challenges to jurors, and expressed that he was content with the jury. We agree with the Commonwealth that the defendant has failed to establish any abuse of discretion by the judge or prejudice from the failure to ask these questions because, unlike in Commonwealth v. Toolan, 460 Mass. 452, 469 (2011), the defendant's questions have no more than the most tenuous relationship to the fact issues in this case. See Commonwealth v. Amirault, 399 Mass. 617, 625 (1987) (voir dire question must be material to provide basis for excluding juror).
6. The judge's sentence. Our power to review the sentence imposed in a criminal case is limited: if a sentence is lawful, we have no authority to revise it or to order resentencing. Commonwealth v. Coleman, 390 Mass. 797, 804 (1984). Here, the defendant argues that the sentence was unlawful because the judge was not impartial and his sentence was based on improper factors including the victim impact statement and uncharged misconduct. The judge imposed a one-year sentence, six months to serve and the balance suspended for three years. The judge's acknowledgment that he was familiar with the trauma experienced by the victim and that there was a need to deter the defendant from future crimes were not impermissible factors. There is no basis in the judge's remarks for the inference that he punished the defendant for uncharged conduct or relied upon inappropriate factors. We discern no error.
Conclusion. For the above reasons, the judgment is affirmed.
So ordered.
Affirmed