Opinion
20-P-349
06-25-2021
COMMONWEALTH v. HYACINTH H., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On March 19, 2019, a delinquency complaint issued in the Juvenile Court, charging the juvenile with one count of possession of child pornography, in violation of G. L. c. 272, § 29C, and one count of distribution of visual material of a child in the nude, in violation of G. L. c. 272, § 29B. The juvenile filed a motion to dismiss, which the Commonwealth opposed. After a hearing, the judge allowed the motion to dismiss both counts in a thoughtful memorandum of decision. The Commonwealth appeals from the judgment of dismissal, and we affirm.
Background. We take the following facts from the police report that was submitted with the application for the complaint. On or about January 10, 2019, at a middle school in Chicopee, a female student (Ann, a pseudonym) reported to the school resource officer of the Chicopee Police Department that another female student, the juvenile, had shown a photograph of Ann to several male students without Ann's permission. Ann herself had taken the photograph several years earlier when she was in the fifth grade. The photograph appears to be a "selfie" and Ann is smiling and looking into the camera. It depicts primarily Ann's face and her unclothed upper torso; the top portion of her left breast and nipple are visible. Apparently, Ann's facial expression, body position, and surroundings do not suggest that the photograph is sexually explicit or suggestive, and she appears comfortable and not in distress.
The police report recites, "Attached to the report are the statements from the four boys." In fact, what appears in the record is a statement from Ann, along with statements from three of the boys who were shown the photograph.
According to the Commonwealth, the photograph was not submitted to the Clerk-Magistrate who issued the complaint, although the juvenile included it with her motion to dismiss and the judge appears to have seen it. We have not seen it; however, both parties agree on the content of the image and have described it adequately to us for the purposes of this appeal. Our description of the photograph comports with the description supplied to us by the parties. Given this, we need not see the photograph to make our determination. See Commonwealth v. Lawrence, 68 Mass. App. Ct. 103, 104–105 (2007).
According to Ann, several male students from her middle school were shown the image, and told her that they "can't look at [her] the same [way] any more." In written statements, one boy called the image an "inappropriate photo" and another boy called it a "nude ... that [Ann] took like 2 years ago." One of the boys also stated that he believed the juvenile had shown them the photograph because the juvenile and Ann "were having problems with each other."
In her written statement, Ann stated that she and the juvenile had been friends in the past, but that they recently had been in conflict over a previous romantic relationship. Specifically, Ann stated that the juvenile was angry with her because she had told the juvenile that the juvenile's former girlfriend had kissed her. All involved parties, including Ann, appeared to believe that the juvenile's act was motivated by revenge.
Discussion. We review de novo the motion judge's grant or denial of a motion to dismiss for lack of probable cause. See Commonwealth v. Coggeshall, 473 Mass. 665, 667 (2016). "After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate." Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). "If the person complained of believes that there was not probable cause to charge [her] with a crime, [she] may move to dismiss the complaint" (quotation and citation omitted). Id. A motion to dismiss "is the appropriate and only way to challenge a finding of probable cause." Id.
"Probable cause [to arrest] exists where the facts and circumstances ... [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been ... committed" (quotation and citation omitted). Coggeshall, 473 Mass. at 667. "Probable cause requires more than mere suspicion, but it is considerably less demanding than proof beyond a reasonable doubt" (quotation and citation omitted). Id. Finally, "[t]he application for the complaint must establish probable cause as to each element of the offense." Id.
The Commonwealth concedes "for purposes of this appeal" that the motion judge was correct in finding no probable cause to believe that the juvenile's possession of the photograph constituted possession of child pornography in violation of G. L. c. 272, § 29C, because the photograph is not a "lewd exhibition." See G. L. c. 272, §§ 29C, 31 ; Commonwealth v. Rex, 469 Mass. 36, 44–45 (2014) ; Commonwealth v. Bean, 435 Mass. 708, 715 (2002). As the Commonwealth points out in its brief, however, the statute prohibiting distribution of visual material of a child in the nude under G. L. c. 272, § 29B (a ), forbids not only the distribution of lewd material but also the distribution of any depiction of child nudity with "lascivious intent." Accordingly, a photograph that could be disseminated lawfully, such as a photograph of a naked one year old child playing on a beach taken by a parent and sent to relatives, would be disseminated illegally if such dissemination is done with "lascivious intent." See G. L. c. 272, § 29B ; Bean, supra at 711; Commonwealth v. Provost, 418 Mass. 416, 423–424 (1994).
The charge of distribution of visual material of a child in the nude under G. L. c. 272, § 29B (a ), requires the Commonwealth to prove that the defendant, (1) having lascivious intent, (2) disseminated visual material (3) containing a representation or reproduction of any posture or exhibition in a state of nudity (4) of a child under eighteen years of age, (5) either having knowledge of the contents thereof or having sufficient facts in his possession to have knowledge of the contents thereof.
The statute, G. L. c. 272, § 31, defines "lascivious intent" as "a state of mind in which the sexual gratification or arousal of any person is an objective." Sexual gratification or arousal need not be the sole objective; "[s]o long as there is proof that sexual gratification or arousal is ‘an objective,’ the element of lascivious intent is satisfied." Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 596 (2021), citing Commonwealth v. Molina, 476 Mass. 388, 405 (2017). Proof of lascivious intent may include, but is not limited to:
"(1) whether the circumstances include sexual behavior, sexual relations, infamous conduct of a lustful or obscene nature, deviation from accepted customs and manners, or sexually oriented displays;
"(2) whether the focal point of a visual depiction is the child's genitalia, pubic area, or breast area of a female child;
"(3) whether the setting or pose of a visual depiction is generally associated with sexual activity;
"(4) whether the child is depicted in an unnatural pose or inappropriate attire, considering the child's age;
"(5) whether the depiction denotes sexual suggestiveness or a willingness to engage in sexual activity;
"(6) whether the depiction is of a child engaging in or being engaged in sexual conduct, including, but not limited to, sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sado-masochistic behavior, or lewd exhibition of the genitals."
G. L. c. 272, § 31. However, the Supreme Judicial Court has explained that "these ‘factors’ are merely examples of evidence that ‘may’ be relevant to what is necessarily an element rarely capable of direct proof, i.e., ‘a state of mind in which the sexual gratification or arousal of any person is an objective.’ G. L. c. 272, § 31. Proof of their existence in any particular case is neither required to establish lascivious intent, nor necessarily sufficient to support a finding of such intent. Additionally, the statute specifically provides that evidence of lascivious intent ‘shall not be limited to’ these factors." Bean, 435 Mass. at 713. See Rex, 469 Mass. at 44–45.
In Bean, the Supreme Judicial provided some insight into the analysis necessary to determine what is necessary to prove lascivious intent. There, the defendant, an adult photography student, posed a fifteen year old girl and her boyfriend for an outdoor photography session. Bean, 435 Mass. at 709-710. During the session, the defendant asked the girl to pose in the nude, and took some photographs of her with one of her breasts exposed. Id. at 710. In concluding that the evidence was insufficient to prove that the defendant had acted with lascivious intent, the court reiterated that what matters is the defendant's state of mind. Id. at 715-716. In addition to the photographs themselves and the surrounding circumstances, the court considered testimony of an expert in art history and theory who opined that the photographs had "an artistic quality independent of their specific subject matter." Id. at 15. With these factors in mind, the court concluded that the remaining evidence, including the fact that the defendant had failed to tell the girl's mother that he might take nude photographs, was "ambiguous at best." Id. at 717. As a result, because the photographs were not lewd and had artistic value, there was insufficient evidence to support a finding of lascivious intent beyond a reasonable doubt. Id.
We understand that the probable cause standard is less stringent than proof beyond a reasonable doubt. See Coggeshall, 473 Mass. at 667.
In the present case, the parties agree that the photograph described in the record does not meet any of the six factors described in § 31. Accordingly, the Commonwealth seeks to prove lascivious intent by other means. Specifically, the Commonwealth points to the middle school boys’ reported reactions to the photograph, and contends that, although the photograph itself is not lewd or suggestive, it may be inferred that viewing the photograph caused the boys to think of Ann in sexually arousing ways and, also, that the juvenile intended this result. The Commonwealth also argues that because, unlike in Bean, there was no artistic or otherwise nonmalicious explanation for the juvenile's actions, the juvenile must have acted with lascivious intent because her objective was the "sexual ... arousal of any person." G. L. c. 272, § 31. Specifically, the Commonwealth contends that the juvenile sought to humiliate Ann by sexually arousing the boys with Ann's nude photograph. The juvenile responds that "[i]t is pure speculation to conclude that the boys’ reported reaction[s] referred to arousal rather than disappointment, loss of respect, or any other reaction to seeing an ill-advised selfie."
The juvenile's assessment is persuasive here. The record shows that all parties involved understood the juvenile's motive to be humiliation of Ann as revenge for Ann's perceived transgressions. While sexual arousal of any person need not be the sole objective to support a finding of probable cause for lascivious intent, here, the inferences required to support a finding of probable cause on the issue of lascivious intent are too many and too tenuous.
In short, there is no evidence in the record to show that the juvenile intended to arouse the middle school boys sexually with the photograph. Accordingly, we affirm the judge's ruling on both charges.
Judgment of dismissal affirmed.