Opinion
18-P-800
12-20-2019
John DOE, Sex Offender Registry Board No. 523271 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, having moved from Tennessee to Massachusetts where he now resides appeals from the judgment affirming his classification by the Sex Offender Registry Board (SORB) as a low risk, level one sex offender, arguing, primarily, that his conviction in Tennessee of attempted facilitation of the sexual exploitation of a minor is not a like offense to the Massachusetts offense of attempted possession of child pornography.
Background. While living in Tennessee, the plaintiff pleaded guilty to the Tennessee crimes of attempted facilitation of the sexual exploitation of a minor and assault. These convictions arose out of two incidents. During the first incident, the plaintiff touched the fifteen year old victim's breasts. During the second incident, when the victim was sixteen years old, the plaintiff sent the victim a text message asking for a "bad picture." In response, the victim sent the plaintiff one photograph of her breasts and one photograph of her vagina.
Discussion. Pursuant to G. L. c. 6, § 178C, a sex offense in Massachusetts includes "a like violation of the laws of another state." A "like violation," though not defined by statute, has been defined as "a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010). The violations need not be identical. Id. at 616. Rather, an out-of-State violation may be deemed a like violation "where it is shown that the proof necessary for the out-of-State conviction would also warrant a conviction of a Massachusetts offense for which registration is required." Id.
Contrary to the conclusion reached by the hearing examiner, we conclude that the Tennessee offense to which Doe pleaded guilty, namely, the attempted facilitation of the sexual exploitation of a minor is not a like violation to the Massachusetts offense of attempted possession of child pornography. Tennessee law does not require proof of a specific intent in order to prove the offense of facilitation. "A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony but without the intent required for criminal responsibility under § 39-11-402 (2),[ ] the person knowingly furnishes substantial assistance in the commission of the felony." Tenn. Code Ann. § 39-11-403. In other words, in Tennessee, in the context of an offender who has the specific intent to possess child pornography, a person who knowingly furnishes substantial assistance to the said offender to enable that person to commit the crime of sexual exploitation of a minor, is guilty of facilitation of the sexual exploitation of a minor even though the person did not have a specific intent to promote or to assist in the commission of the offense, or to benefit in the proceeds or results of the offense.
Tennessee Code Annotated § 39-17-1003 states in relevant part: "It is unlawful for any person to knowingly possess material that includes a minor engaged in: (1) Sexual activity; or (2) Simulated sexual activity that is patently offensive." Whereas G. L. c. 272, § 29C, states in relevant part, "Whoever knowingly purchases or possesses a negative, slide, book, magazine, film, videotape, photograph or other similar visual reproduction, or depiction by computer, of any child whom the person knows or reasonably should know to be under the age of [eighteen] years of age and such child is: (i) actually or by simulation engaged in any act of sexual intercourse with any person or animal; [or] (ii) actually or by simulation engaged in any act of sexual contact involving the sex organs of the child and the mouth, anus or sex organs of the child and the sex organs of another person or animal."
Tennessee Code Annotated § 39-11-402 provides in relevant part that "[a] person is criminally responsible for an offense committed by the conduct of another, if: ... (2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense." Likewise, in Massachusetts, one who aids in the commission of a felony, or counsels, encourages, or procures a felony is guilty of the underlying offense if "he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime." Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973). See G. L. c. 274, § 2.
In order to prove the offense of attempted possession of child pornography in Massachusetts, the law requires proof that the offender had the specific intent to possess such material coupled with proof of an overt act taken in furtherance of that intention. See Commonwealth v. Ware, 375 Mass. 118, 119 (1978) ("the crime of attempt involves an intent to commit a substantive crime"). By definition, on the other hand, as noted above, the offense of facilitation of a felony such as child exploitation under Tennessee law does not require proof of a specific intent to commit the underlying felony. Given this circumstance, it would be anomalous, indeed, if the crime of attempted facilitation of a felony such as the sexual exploitation of a minor required proof of a specific intent to commit the underlying felony.
For this reason, there was no evidence that Doe committed a like offense in Tennessee within the meaning of G. L. c. 6, § 176C. See Doe, Sex Offender Registry Bd. No. 346132 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 482, 489-490 (2014) (reviewing court must confine itself to crime that plaintiff was convicted of, not conduct he is alleged to have engaged in when determining whether out-of-State conviction is like offense). The judgment of the Superior Court is reversed, and the case is remanded to that court for entry of a new judgment vacating SORB's classification order.
So ordered.
Reversed and remanded.