Opinion
16-P-96
04-03-2017
COMMONWEALTH v. Derek M. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the District Court of possessing child pornography. On appeal, he asserts that the admission of a digital video disc (DVD) containing several videos of the child pornography upon which the charge was based was unnecessary and prejudicial because he did not dispute the element of possession. We discern no error or abuse of discretion in the judge's conclusion that the prejudicial impact of the videos did not outweigh their probative value. Accordingly, we affirm the conviction.
Background. During the course of an investigation involving the dissemination of child pornography, the Massachusetts State police executed a search warrant at the defendant's home and seized his personal computer. A subsequent forensic analysis of the computer disclosed several files containing child pornography. Specifically, the files contained videos of children between the ages of six and thirteen "in different poses in a nude state" and "involved in sexual acts either with each other or with a male or female adult." The video files were copied onto a DVD, which was introduced in evidence. One video from the DVD was shown to the jury in open court without objection. The remaining videos were available to the jury during their deliberations. The defendant did not deny that the videos in question depicted child pornography or that he possessed the images. He claimed that he obtained the child pornography accidentally while he was downloading adult pornography and that he did not view any of the video files containing child pornography. He told the police, and testified at trial, that he recognized which files contained child pornography by the names of the files and promptly deleted them.
For example, several files had names such as "PTHC [preteen hard core] Dad and Willing Daughter," and "Four, Eight, and Ten-Year-Old Brother Having PTHC Sex."
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Discussion. The defendant contends that the admission, over his objection, of the DVD containing numerous videos depicting child pornography requires reversal because his acknowledgement that he possessed child pornography, albeit inadvertently, rendered admission of the videos unnecessary and gratuitous. We discern no error. The Commonwealth is entitled to offer all probative and admissible evidence in proof of its case. See Commonwealth v. Ramos, 406 Mass. 397, 407 (1990). The defendant's admission did not restrict the Commonwealth from also introducing the videos. The Commonwealth was still required to prove that the defendant knowingly possessed child pornography. In these circumstances, the judge did not abuse her discretion by admitting the DVD in evidence and permitting the jury to view it if they wished to do so. See Commonwealth v. Pena, 455 Mass. 1, 12 (2009). Nor are we persuaded, as the defendant claims, that the jurors were so inflamed by the nature of the pornography itself that they could not fairly consider his defense.
Judgment affirmed.